Court Allows Child of Denied Asylum Seekers to Request Relief Under DACA | Missouri & Illinois Deportation Attorney Jim Hacking

Background

The First Circuit Court of Appeals recently decided on a case about a family seeking asylum whose child is currently an eligible candidate for deferred action. Ashot Gasparian, along with his wife and son, are natives of Armenia, where Gasparian ran a shoe business. His business included dealings with an Azerbaijani man who was affiliated with Turkey. Due to political tensions between Armenia and Turkey, the Gasparians began receiving threats including phone calls and knocks at the door. After receiving a threat to kidnap their son, the Gasparians closed their business and entered the U.S. on visitor visas. The family overstayed their visas.  Settling in Rhode Island, the Gasparians were employed at a jewelry company while their son attended public schools and later enrolled in college. In December 1994, Gasparian filed a request for asylum and withholding of removal on behalf of his family, but the request was denied.

Asylum & Discretionary Relief Denied

The Immigration Judge initially denied Gasparian’s request for asylum and withholding of removal due to doubt regarding their harassment claim. The Judge concluded that it was unlikely the Gasparians were still receiving threats over a business that was shut down in 1978. None of the threats led to physical harm nor did the parties who were alleged to have made the threats have any connection with the government. The Gasparians appealed to the BIA, but the motion was filed in an untimely manner and was dismissed. The BIA also allowed the Gasparians 30 days of voluntary departure.

The family ignored the BIA’s order to depart and continued living in Rhode Island. In May 2011, they filed a second motion to reopen proceedings with a new application for asylum under the Convention Against Torture (CAT). Due to increasing diplomatic and military tensions between Armenia and Azerbaijan, the Gasparians argued that a potential for war constituted as changed circumstances and a reason to be persecuted if forced to return to Armenia. In September 2011, the BIA denied the motion, reasoning that they failed to show how the changed political circumstances would be material to their claims. The business dealings with Azerbaijanis ended over thirty-two years ago and there was no indication of a continued intention of harassment for a family that had resided in the U.S. for the past eighteen years. The Gasparians appealed the BIA’s decision once again.

Appeal Denied

In order to reopen a case, there must be new evidence that establishes a prima facie case. The BIA did not err when they denied the motion. The potential war between Armenia and Azerbaijan is speculative and the threats occurred over thirty years ago. The BIA correctly assumed that the threats were unlikely to restart and escalate into persecution. The new evidence did not support asylum or withholding of removal or CAT relief. Because the Gasparian’s son was brought to the U.S. as a child and had pursued his education in the U.S., he cannot be blamed for remaining in the country and qualified for deferred action. Because this program requires a timely application, Haik Gasparian was given 90 days to apply for relief and his parents were also given time to file for relief to prevent splitting up a family. The BIA’s decision was affirmed.

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