Perez-Ajanel v. INS

United States Court of Appeals for the Ninth Circuit (No. 02-72556)

The Petitioner claimed that he was a member of a student organization that made efforts to help Guatemalan refugees located in southern Mexico.  The Guatemalan government approached members of this organization and ordered them to cease any aid to these refugees.  Members of the organization then received death threats and two members were kidnapped.  One member was found tortured and murdered, while another member is still missing.  The Immigration Judge found the Petitioner’s testimony to be credible and substantial evidence of a well-founded fear of persecution on account of political opinion and granted him asylum.  The BIA found that unfulfilled threats did not constitute past persecution and that the circumstances were changed in the Petitioner’s native country, therefore vacating the order of asylum.

The Ninth Circuit Court of Appeals granted the alien’s petition.  The Court found that the kidnappings and murder indicated a direct causal nexus between the persecution and the Petitioner’s membership in the documented political and humanitarian organization.  In addition, while the BIA relied upon a U.S. State Department report indicating changed country conditions, the Court found that evidence indicated that the violence against student groups persisted in the alien’s native country even after other circumstances had changed.

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Kaur v. Ashcroft

United States Court of Appeals for the Ninth Circuit (No. 02-71986)

The Petitioner, Harjeet Kaur, a native and citizen of India, sought judicial review of a BIA holding dismissing her appeal from a decision from an Immigration Judge.  The IJ denied the Petitioner’s application for asylum and withholding of removal on the basis that the Petitioner failed to establish either past persecution or a well-founded fear of future persecution.

The Petitioner testified that she was beaten, raped, and threatened by police.  The Ninth Circuit Court of Appeals reviewed the decisions of the BIA and the IJ and found that rape or sexual assault may constitute persecution.  The appellate court quoted Lim v. INS and held that “a petitioner’s family’s continued safety does not rebut the petitioner’s well-founded fear of future persecution when there is not evidence that the family is ‘similarly situated or subject to similar risk, and nothing in the record supports an inference that their safety ensures that [petitioner] will be safe.” 

The court held that the reasons cited by the IJ for finding the Petitioner not credible were not legitimate or substantial, and reversed and remanded the case for further proceedings consistent with that result.