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Refugee and Asylum Law
SUNY Buffalo Law School
Su, Rick

Refugee & Asylum

Su

Fall 2013

Persecution

– Punishment is viewed as not legitimate

– Infliction of harm suffering based on … to overcome

– Serious harm & failure of state protection

Mirisawo v. Holder (4th circuit 2010) p. 133

Facts:

came from Zimbabwe, worked as housekeeper; her brother severely beaten b/c member of Movement for Democratic Change who opposed president; she visited for a month; gov mostly destroyed home she owned, occupied by brother & her children

à alleges past persecution – – economic persecution

à alleges wff of future persecution based on imputed political opinion

Holding:

– not economic pers b/c didn’t interfere w/ her housing & wasn’t deliberately imposed b/c she didn’t depend on the house for her livelihood (to live or for return on investment)

-not imputed PO b/c fear not objectively reasonable; no further incident w/ brother, other family members unharmed & she herself not harmed when visiting

Rules applied:

“well-founded fear” requires:

1. a reasonable person in the circumstances would fear persecution

2. the fear has some basis in the reality of the circumstances and is validated with specific, concrete facts

persecution: often manifested in physical violence, but harm or suffering need not be physical, but may take other forms, so long as the harm is of sufficient severity

economic persecution: life or freedom threatened by either (1) deliberate deprivation of basic necessities or (2) deliberate imposition of severe economic disadvantage

Matter of Chang (BIA 1989)

Facts:

family opposed 1 child policy, had 2 children & wanted more; would face forced sterilization if returned

Holding:

– One-child rule on its face is not persecutive à have to establish that application of the policy was persecution/wff based on one of the 5 grounds; need evidence that gov action arises for a reason other than general population control (show this is pretense)

– if punishment @ hands of local officials, redress from higher officials was unavailable/well-founded fear that it would be

Pitcherskaia v. INS (9th cir, 1997) p. 151

Facts:

– Russian, feared persecution on account of her & her father’s anti-Communist political opinions (denied); renewed & added on account of her political opinion (support of gay civil rights) & membership in social group (Russian lesbians)

– Had been beaten for demonstrations, threatened w/ psychiatric confinement if she continued to see women, detained/interrogated on no. of occasion; ex-gf subjected to electric shock treatment; attended “therapy,” diagnosed as schizophrenic, numerous demands for appearance & arrests

à argues BIA applied erroneous legal standard by insisting that intent to punish is necessary element of persecution (COA agrees)

Holding: remanded

Rules:

– Intent is not required for harm to constitute persecution

– Unreasonably severe punishment can constitute persecution, but punishment is neither a mandatory nor a sufficient aspect of persecution – persecution is objective infliction of harm

àpast persecution *presumed to have well founded fear* (burden on government)

1. Changed circumstances

a. (burden shifts to applicant)

i. Humanitarian grounds (ex: matter of chang – cultural revolution; holocaust victims)

ii. Perpetual persecution

iii. Some other harm (doesn’t require nexus; but more harm than something like economic harm)

2. Safe internal relocation

a. (burden shifts to applicant)

i. Government persecution (presumption that gov pers is countrywide pers)

ii. Not reasonable (ex: area where safe from persecutors but will be in a warzone)

à future persecution (burden on applicant)

1. Singled out

2. Pattern & practice

Dwomoh v. Sava (SDNY 1988) p. 157

Facts:

-Long-term military career in Ghana, began supporting resistance movt, planned to overthrow gov; detained, interrogated, beaten (past pers) and charge of treason (future pers)

Holding: remanded

– is persecution because (a.) coup was only way to change form of gov’t, and (b.) prosecution was illegitimate because applicant was not afforded due process.

***Note: Chang said it doesn’t matter what Constitutional rights we have, they cannot be imputed on standard of other countries; here the court uses our standard of due process/democratic process—but, Chang resulted in an asylum statute change to automatically allow forced sterilization victims asylum on account of political opinion.

Matter of A-G- (4th Cir.) p. 165

Facts:

– El Salvadoran applicant refused to serve in “terrorist military;” fears future conscription/punishment for refusal – – doesn’t want to commit inhumane atrocities, or refuse and be killed as traitor

Holding: appeal dismissed, asylum denied

– not persecution – – no prima facie showing that applicant refused conscription & no sufficient evidence of inhuman atrocities/that country’s military ac

ion of the beatings/mistreatment; Aftereffects (experiences of brothers will be relevant)]

Matter of Y-T-L- (BIA 2003, en banc) p. 186

Facts:

Chinese, family still there 3 kids, gov imposed large fine after birth of 2nd child

Wife forced to have IUD inserted after birth of 2nd child & was informed that she would have to undergo sterilization, had IUD removed in secret, had 3rd child in, sterilized, substantial fine imposed , Gov confiscated land assigned to family

Holding: asylum granted

­- Doesn’t constitute fundamental change in circumstances, fails to take into account “continuing nature” of the persecution inflicted

– yes they no longer fear abortion, but it’s because of the forced sterilization

– cannot open door to allowing persecution itself to constitute the change in circumstances (purley propective view would limit relief to only where threatened sterilization)

à congressional intent: wanted victims of China’s coercive family planning policy to be eligible for asylum, not only those who could be victims if returned to China

à forced sterilization is a permanent and continuing act of persecution

Mohammed v. Gonzales: (9th circuit 2005) p. 195

Facts:

FGM, woman arguing it can be done multiple times, and it is like sterilization b/c it permanently disfigures, and is on-going harm

Holding: Humanitarian asylum granted

– Can be done again/more [traditional format, can happen again]

– is perpetual persecution (complications, infection, pain, etc.)

àbut BIA doesn’t want to accept perpetual persecution; says only works in Chinese sterilization

Matter of A-T-: (BIA 2007) p. 197

Facts:

– has already undergone FGM

Holding: no withholding

– fundamental change in situation, no future persecution

– rejects “perpetual persecution” for FGM, likened this to lost limb; say shouldn’t go outside regulatory formula, as there is no separate legislation as there is for forced sterilization

– bring back nexus