VIDEO: Asylum Seeker Does Not Have to Show Persecution of Everyone in Social Group

Does somebody seeking asylum in the United States have to show that everyone in their particular social group back in their home country suffers the kind of persecution that they fear? Hi, I’m Jim Hacking, immigration and asylum attorney here in St. Louis, Missouri. The Seventh Circuit Court of Appeals in Chicago recently handed down a decision reversing an immigration judge and the Board of Immigration Appeals decision on an asylum case. It’s an important case because of the principles that the court recognized in discussing the case.

You know, with asylum, you always have to show that you are being persecuted or will face persecution if you return home because of a certain characteristic. You can’t just say, “Well, times are hard for everyone back in my home country. Please give me asylum.” You have to show either that you’re going to be persecuted because of your race or your religion or your political opinion, and one of the categories that asylum allows for is when someone says they are a member of a particular social group and that because of that membership, they’re going to be persecuted if they are forced to return home from the United States. That’s the basis of their asylum claim.

In this case, a former Mexican police officer had sought asylum in the United States because he felt that if he were to return home, he would face persecution. The asylum office denied his asylum claim, and his case was sent to the immigration judge. Remember, in asylum, if you don’t win the first time with the asylum officer, you have the right to go in front of the immigration judge in deportation proceedings and seek asylum a second time.

In this case, the man and his wife both testified that after he left the police force, that in Mexico he continued to receive threats, that there were men looking for him, that he had heard that men were trying to kill him. People had come looking for him at various places, even though he had changed professions. He was no longer a police officer, trying to work in an office supply store, and the bad guys figured out who he was and where he was, and he had to flee. It was on this basis that he sought asylum in the United States because he argued that if he were to return to Mexico as a former honest police officer, that he was going to face persecution.

The Department of Homeland Security continued trying to deport him. They also argued that he shouldn’t get asylum because he couldn’t prove that it was his honest nature as a police officer that was going to cause him to be persecuted, and more importantly, they argued that he could not show that all honest police officers in Mexico faced persecution.

The immigration judge incredibly bought this argument, and the immigration judge said, “Well, because, young man, you haven’t shown that you will face persecution and that everyone in your former occupation faces persecution back in Mexico, because you can’t meet that almost impossible burden, we’re going to deny you asylum.” The case went to the Board of Immigration Appeals, and the Board of Immigration Appeals approved the immigration judge’s decision and said that the Department of Homeland Security was right, that the man from Mexico should not receive asylum in the United States.

It’s a good thing that his attorney kept persevering. It’s a good thing that the attorney realized the absurdity of the holding of the immigration judge and the Board of Immigration Appeals, and the attorney took the case to the Seventh Circuit. Now, the circuit courts are the courts just beneath the US Supreme Court, so it’s important to think about all the effort and energy that the attorney and the man from Mexico put into this case and how ridiculous it is that the government forced them to do all this work when it seemed readily apparent, even to the immigration judge, that the former police officer was very credible.

The judge did not make any factual findings contrary to the position of the man from Mexico, and by all accounts, he’d been an honest and upstanding person in the United States since arriving and that no one said that the claims he was making about why he would face persecution if he returned to Mexico were to be disbelieved. So everyone knew he was an honest person. Everyone believed him, but the immigration judge and the Board of Immigration Appeals said, “Well, even though we believe you, we don’t think you are showing that everyone who goes back to Mexico faces persecution from these bad actors and that the government couldn’t protect you from these bad actors.” It’s really sort of ridiculous.

The Seventh Circuit Court of Appeals thought the same thing. It’s a relatively short opinion. It’s only six pages, which is unusually short for an appellate court looking at an immigration/deportation case, but the court made clear that they weren’t going to just sit by and accept the thin analysis offered by the Board of Immigration Appeals and the Department of Homeland Security.

They noted that it was an impossible burden that the judge was asking this man to show, that every person who was an honest police officer back in Mexico would face persecution. It said that there’s no way for the officer to ever achieve that high level of scrutiny and to prove that persecution would occur for all people in his former line of work, so the court reversed the decision and said this case should go back to the Board of Immigration Appeals, back to the immigration judge to determine whether or not he himself had shown persecution.

The court also had another interesting paragraph at the end of its decision. In the opinion, the court asked why are we even deporting this man. Why does the Department of Homeland Security want to even deport this man? Clearly, he’s shown that he’s going to face persecution, and if the court below believes that he should not receive asylum … The court urged, the Seventh Circuit urged the prosecutors to exercise prosecutorial discretion. They said there’s no reason to deport this person back to Mexico. He’s done everything he’s supposed to do, and they really urged a rethinking of the entire case.

The Seventh Circuit is always willing to scrutinize the Board of Immigration Appeals very carefully. There’s some judges up there who really take a harsh view of some of the shoddy analysis done by the Board of Immigration Appeals, and we really applaud the court for taking that hardline stance and requiring the government to go beyond mere pleadings and to explain the real reasons why they’re making these somewhat irrational decisions. We wish every circuit court was as expansive in its view of scrutiny of the Board of Immigration Appeals, and we hope that continues.

If you have any questions about this very interesting case or about how asylum might apply to you, if you think you’re facing persecution if you return to your home country, please give us a call, 314-961-8200, or you can email me Jim@hackinglawpractice.com.  Thanks.