On February 28, 2020, the United States Court of Appeals for the Third Circuit published a precedential opinion to answer a difficult question: whether and under what circumstances threats of violence may contribute to a cumulative pattern of past persecution when there is no physical harm to the asylum seeker or their family.
The Third Circuit ultimately found the petitioner’s experience in Nicaragua, receiving death threats from members of the governing Sandinista party after her home was burned down, a convoy she was travelling in came under gunfire, and a political meeting she organized was robbed at gunpoint, was within the purview of the asylum statute to establish past persecution.
The petitioner in this case attempted to establish past persecution by showing the court she was an active opponent of the Nicaraguan government, of which the Sandinista party has control. In Nicaragua, the government was found to have a “de facto concentration of power” in the Sandinistas, “with an authoritarian executive branch exercising significant control over the legislative, judicial, and electoral functions. The Sandinista party that controls is known to have imposed arbitrary arrest and detention of suspects, have blocked freedom of speech and the press, and placed partisan restrictions on peaceful assembly rights of Nicaraguan people. Additionally in recent years, the Sandinista party controlling the Nicaraguan government did not protect opposition protesters when pro-government supporters were harassing or attacking them for their views, and the police forces generally protected or gave preferential treatment to those in the country who were holding pro-government demonstrations and would break up or deny registration for anti-government demonstrations.
Prior to leaving Nicaragua to escape to the United States, petitioner was a leader and president in a Sandinista opposition group for liberal party youth and was very deeply involved in local politics. She claimed that as a result of her oppositional views to the controlling government party, she was subject to actions that she claimed rose to the level of persecution for asylum purposes.
When petitioner arrived in the U.S. and filed for asylum based on past persecution, the Government did not dispute she was targeted on account of her political opinion, but the immigration judge concluded her experiences did not rise to the level of past persecution, though he claimed not to doubt her fear of returning to Nicaragua as a result of her political opinion. The IJ found that she was not persecuted because she was not physically harmed, arrested, imprisoned, or threatened by a government official. The BIA adopted this analysis and affirmed the IJ’s holding, agreeing that her experiences did not constitute past persecution for the purpose of seeking asylum.
However, when the case reached the Third Circuit Court of Appeals, the court found the IJ and BIA both erred in holding the threats experienced by petitioner did not meet the standard for past persecution. The Court draws three lessons from three previous cases; first that threat cases are not an exception to the general rule of cumulative analysis for considering if a petitioner’s experience rises to the level of persecution, but simply applications of the rule. Second, that when evaluating whether a threat within an overall trajectory of the petitioner’s mistreatment is enough to establish persecution, in other words, whether that threat was concrete and menacing. Finally, that the “concrete and menacing” language not be a unique persecution standard for cases that involve threats. Instead, that language is just a term that reflects the Court’s ultimate determination that the cumulative effect of the threat and its corroboration presents a real threat to the life or freedom of the petitioner seeking asylum.
Focusing then on the cumulative effect of petitioner’s experiences, the court found the IJ and BIA failed to properly consider the aggregate effect of her mistreatment. Instead of considering all the instances of persecution the Petitioner cumulatively, the IJ determined that no single incident rose to the level of past persecution and therefore found she failed to satisfy that prong of the asylum process.
The Court also found the IJ and BIA erred by finding no persecution existed because the petitioner was never physically harmed. The Court states in its opinion they never reduced persecution analyses to a checklist or suggested physical violence is a required element, but instead approach asylum claims on a case-by-case, fact specific analysis.
Doing a proper evaluation of persecution, the Third Circuit found the Sandinistas’ threats to the petitioner, when considered within the entire context of her experience in Nicaragua, were absolutely sufficient to establish persecution because of the concrete and menacing death threat. This death threat was substantiated by a pattern of harassment, making it concrete, and the Sandinistas’’ murder of her political compatriot showed the threats were menacing as well.
Finding the Petitioner was subjected to past persecution, the court held she was entitled to a rebuttable presumption of a well-founded fear of future persecution. However, the IJ erroneously found to the contrary of this and the BIA affirmed, whether this presumption could be rebutted was not determined. For these reasons, the Court vacated the BIA’s order, and remanded to the agency for further proceedings. Additionally, the Court vacated the BIA’s order affirming Petitioner’s CAT claim, because the IJ failed to consider and discuss why the record was not sufficient in establishing government acquiescence.
This decision was precedential and may be immensely helpful to Petitioners who did not necessarily experience physical harm themselves but due to their circumstances, and threats, remained in an oppressive fear for their lives. Their applications for asylum and CAT will be aided by the Third Circuit’s specification and reminder to use all circumstances combined for a case-by-case analysis, so that IJ’s and the BIA may not simply deny applications because they feel it lacks one “element” which is not actually an element by itself.
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