News from the Courts

Posted on: February 28th, 2018
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CA5 Holds That Petitioner’s PTSD Did Not Have to Be Considered in Determining His Credibility

Jatinger Singh, a native of India, petitioned the Board of Immigration Appeals (BIA) decision which affirmed the decision of an Immigration Judge (IJ) denying his application for asylum, withholding of removal, and protection under the Conventions Against Torture (CAT).

Singh illegally entered the United States in December 2014 at the age of 18, and he was charged with entering the country without proper documentation by the Department of Homeland Security shortly after his arrival. Singh was interviewed by an Asylum Officer (AO) by the end of that month, before which Singh voluntarily waived his right to have his attorney present. During the interview, Singh disclosed that in 2013, the police in India arrested him based on his father’s affiliation with a rival political organization, the Simrat Mann Jit party. The Simrat Mann Jit party is a Sikh separatist party which advocates for a separate Sikh nation in Punjab called Khalistan. Subsequently, in January 2014, the police physically assaulted Singh on numerous occasions, going so far as to threaten his life because of his father’s affiliation. Upon being questioned, Singh denied his own membership in the organization, and then recounted Singh’s statement to border officials in which Singh explained that his fear of returning to India was predicated on the fact that, “he would be harmed very badly because of the party [he] supported.” When pressed to explain the discrepancy, Singh replied, “No. I did not say that. I was not with the party. It was my dad. First they beat my dad very badly too.” Expounding upon his reply, Singh stated that in 2011 police officers arrested his father and fatally injured him after repeated assaults. The When asked by the AO if he ever showed support for the Mann party, Singh denied any such support. After concluding the interview, the AO determined that Singh’s testimony contained substantial material inconsistencies and that Sigh was, “not credible.”

In March 2015, Singh filed an application for asylum, withholding of removal, and protection under the Conventions Against Torture (CAT), in which he declared he sought such protections based upon his religion, political belief, or membership in a particular social group. He expounded on this claim, stating that like his father, he too believed in the philosophies of the Simrat Mann Jit party, specifically for his claims, the separation of an independent Sikh nation, and that the police force in India actively suppressed these political opinions. Singh cited his own physical abuse at the hands of the Indian police force resulting from this motive, as well as his father’s death as the result of similar physical abuse. Leading up to Singh’s trial, his attorneys raised the attention of the Immigration Judge to Singh “manifesting mental incompetence symptoms.” In May 2015, Singh filed a motion for a mental competency, and a subsequent psychological report from the Center for Survivors of Torture found that the beating which resulted in the death of his father and the beatings he took himself resulted in Singh suffering from symptoms indicative of Post-Traumatic Stress Disorder (PTSD). Such symptoms experienced by Singh listed in the report included “difficulty sleeping,” “memories of the beatings he sustained and images of his father’s suffering and death,” “nightmares,” and “constant headaches.” Later that month, Singh’s attorney raised the motion for a competency hearing, but when questioned, Singh’s attorney stated that Singh was capable of understanding the proceedings, testifying to the court, and responding to questions. This led the IJ to the conclusion that further competency analysis was unwarranted and the hearing could continue to direct examination. During direct examination, Singh was asked to what extent if any he supported the political part warranting claims for relief. Singh stated that he put up fliers and that the president of the party granted him membership after the death of his father in 2011, and that he was beaten on two separate occasions by the police, who accused him of advocating for a Sikh nation and being a Sikh terrorist. During cross examination, Singh reiterated his membership beginning in 2011. He was asked why he denied this membership when asked by the Asylum Officer, which he answered by testifying, “even then I said that; I repeatedly said that I am a member of the party.” After the cross examination, Singh’s attorney declined the opportunity to conduct a redirect examination.

Citing multiple inconsistencies, the IJ found that Singh was not credible. In supporting the adverse credibility determination, the IJ pointed out that Singh’s testimony regarding his membership to and activity within the Simrat Mann Jit party varied from the initial credible-fear interview and the hearing, and when given an opportunity to clarify these inconsistencies, Singh failed to do so. The IJ also determined, despite Singh’s PTSD diagnosis, that his ability to communicate with his attorney and coherently relate his testimony indicated his competency to participate in the removal hearing. Singh appealed this decision to the BIA which affirmed the decision, dismissing the appeal. Singh petitioned this decision for review by the Court of Appeals, challenging that the determination of his credibility be based on his PTSD diagnosis. Judges are directed to attribute inconsistencies in testimonies of individuals with mental illness to said illness rather than a lack of honesty. According to the statement from Singh’s attorney, however, Singh’s PTSD diagnosis did not affect his ability to testify in a coherent, linear manner, meaning that this directive was not applicable to Singh’s situation. Furthermore, though no competency examination was conducted before Singh’s initial credible-fear interview, he had an opportunity to address and rectify the inconsistencies therein and failed to do so. Reviewing the decision of the BIA, the Court of Appeals found no verifiable reason compelling it to overturn the adverse credibility determination and denied Singh’s petition for review.

For more information, view the full case.

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CA1 Upholds Denial of Asylum Due to Failure to Show Membership in a Cognizable Social Group

Ana Marina Perz-Rabanales, a Guatemalan national, sought review of a Board of Immigration Appeals (BIA) decision which denied her application for asylum, withholding of removal, and protection under the Conventions Against Torture (CAT).

Perez-Rabanales resided in her native country of Guatemala until attempting to immigrate into the United States in 2014. She asserts that in 2003, a man named Rodrigo De Leon raped her on two different occasions, the second of which resulted in her pregnancy. She informed her mother of the assaults and subsequent pregnancy, and shortly thereafter De Leon left the country. As news of Perez-Rabanales’ pregnancy spread, family members of De Leon learned that she was carrying his child and began a series of physical and verbal assaults on Perez-Rabanales. Local hospital x-rays confirm that one such physical assault resulted in an emergency room visit as blood pooled in Perez-Rabanales’ brain after being thrown to the ground and struck in the head with a rock. De Leon’s family’s harassment persisted, even after Perez-Rabanales met another man, Raoul Mauricio, and had a child with him. After Mauricio emigrated to the United States, the harassment continued, prompting Perez-Rabanales in April 2014 to cross the border into Texas, without inspection along with her daughter. She was detained upon entry and conceded removability but filed for cross-applied for asylum, withholding of removal, and protection under the CAT. Supporting her claim, she asserted that past persecution and a well-founded fear based on her membership in a particular social group.

After the conclusion of Perez-Rabanales’ trial, the Immigration Judge determined that though her testimony was credible but denied her asylum and withholding of removal since her abuse suffered in Guatemala was not protected under statute. The IJ also denied CAT protection, since Perez-Rabanales failed to prove that, if repatriated, she would be the subject of torture as the direct result of a public official’s willful blindness, consent, or acquiescence.  The decision was appealed to the BIA which upheld the decision, and Perez Rabanales filed a petition for review.

Individuals applying for asylum are required to adequately demonstrate that they are a refugee, an individual who cannot return to their home country out of well-founded fear of persecution due to the individual’s race, religion, nationality, political opinion, or membership with particular social group. Perez-Rabanales sought relief through her membership to a particular social group, and in order to qualify for this, she was required to prove the group’s members share a common immutable characteristic, the group’s ability to be defined with particularity, and the group’s social distinction. The social group of which she claimed member ship was “Guatemalan women who try to escape systemic and severe violence but who are unable to receive official protection,” and both the IJ and BIA determined this group to be not legally cognizable.

Analyzing the BIA’s decision, the Court of Appeals agreed that though applying a lenient definition to gender as satisfying the immutable characteristic component of the requirements, her case falls short with regard to the particularity and social distinction aspects of the particular social group requirements. Furthermore, Perez-Rabanales’ applied for withholding of removal, a form of relief that requires a higher level of proof than asylum. Since the application for asylum was denied based on merit, it is only logical that an application which holds a higher threshold of merit would also be rejected. The third and final application put forth by the respondent was for protection under the CAT. The IJ, BIA, and Court of Appeals all concluded that insufficient evidence was put forth by Perez-Rabanales which would suggest her repatriation would result in torture which was either committed or ignored by the Guatemalan government.

Subsequently, though the Court of Appeals found Perez-Rabanales’ case to be both credible and sympathetic, it was not protected under any of the forms relief for which she applied, and her petition was denied.

For more information, view the full case.

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