VIDEO: St. Louis Asylum Attorney Jim Hacking Discusses New National Origin & Religious Freedom Case

Hi, I’m Jim Hacking, immigration and asylum attorney practicing law here in St. Louis, Missouri. The Board of Immigration appeals recently handed down a very interesting decision. It involved a man from Kazakhstan. He was an ethnic Russian, he was not a native Kazakhstan, and so the man had filed for asylum in the United States.

He argued that he was entitled to asylum for two reasons, the first being that he had suffered persecution in the past based on his Russian ethnic background, and the second based on his religion as a Christian. Kazakhstan is a mostly Muslim country with a harsh military rule, and the man had sought asylum before an immigration judge.

When he went in front of the immigration judge, the immigration judge found him credible, and found that his testimony was believable. What the immigration judge concluded was that the man had not demonstrated enough past persecution to trigger a presumption. Presumptions are very important in an asylum, and that’s sort of what I wanted to talk about today.

A lot of times, in immigration land, the burden is on the person seeking the immigration benefit to prove the matter asserted. That is, that sometimes most of the time, the burden is on the person seeking the immigration benefit to show certain things, so as to being entitled to that benefit. There are certain times where that burden gets shifted from the person seeking the benefit to the government, and then the asylum work, the way this works is that if the individual shows that they’ve suffered past persecution, then the burden shifts to the government to demonstrate that the person is not going to face persecution if they are to return back home.

This is a reason why demonstrating past persecution in asylum cases is so important. The reason is it’s important is because it shifts that burden from the individual to the government. In this case, this man demonstrated four separate instances of past persecution. In one of them, he was beaten and robbed and kicked and yelled at for being a Christian and for being a Russian in Kazakhstan. There were other times where the man had interacted with law enforcement, and they had mentioned his Russian background, his Russian politics, and his Christian background.

Despite all that, despite the four different instances and despite the fact the immigration judge had found the man credible, the judge refused to shift that burden and to place that presumption onto the government, and to force them to prove that the man would not face persecution if he were to return back to Kazakhstan.

The man appealed to the Board of Immigration Appeals. The board, after noting he was credible, and after noting the four separate instances the man had suffered over a 10 or 15-year period, said this man has shown us enough by his credible testimony and by the stories that he’s told, and the corroborating evidence that he had that the government was then going to have to show that if he were to return home, he would not face persecution.

The court reversed the finding of deportability, and sent the case back to the immigration judge so as to allow the Department of Homeland Security an opportunity to rebut that presumption. It wasn’t an outright win for the fellow, but he’s going to have another shot at it in front of the immigration judge, and this time, the government’s going to have to demonstrate that it’s unlikely that he’ll face persecution if he were to return home.

It’s a real interesting case. Very instructive for people who want to file religious-based or political-based or ethnic-based asylum applications. If you have questions about this case or are thinking about filing your own asylum case, I want you to pick up the phone and give us a call, (314) 961-8200. Thanks a lot.