For one to establish eligibility for asylum in the U.S. from their home
country, a link, also referred to as a nexus, must be established between
a protected ground, i.e., race, religion, national origin, social group,
or political opinion, and the very persecution one fears. However, sometimes,
a person is persecuted simply because the persecutor, i.e., the government
or people whom the government is unwilling or unable to control, believes
the person to be of a certain race, religion, national origin, social
group, or political opinion despite that actually not being the case.
This perception oftentimes is enough to establish eligibility for asylum
because the nexus between a protected ground and the persecution has been
established. Indeed, one can imagine scenarios involving military sweeps
wherein the government merely perceives all of the people within a certain
area to be sympathetic to whatever group the military is attempting to
target and consequently targeting even those who are not sympathetic to
that group simply because of their proximity to that group.
Nevertheless, the U.S. Court of Appeals for the Ninth Circuit ("Ninth
Circuit"), which is the federal appeals court that hears petitions
for review from the Board of Immigration Appeals ("BIA") regarding
removal proceedings conducted within the Western states including California,
Nevada, Arizona, and Washington, made it more difficult last week for
asylum applicants to prove the necessary nexus specifically based on perceived,
or imputed, political opinion. The case,
Garcia-Milian v. Holder, involved a Guatemalan woman who applied for asylum in the U.S. based
on her being
beaten and raped
by military personnel who confronted her regarding the whereabouts of
a man, with whom she formerly had a common-law-marital relationship but
who unbeknownst to her was a guerrilla. Although the woman was deemed
credible, she was denied asylum both by an immigration judge and later
on appeal by the BIA because allegedly there was "no evidence to
suggest that she was harmed
based on any real or imputed
political opinion."
The Ninth Circuit
agreed, finding that there existed neither any direct evidence showing that the
government imputed any political opinion to the woman nor any circumstantial
evidence that the woman was attacked based on a perceived political opinion.
Although one of the judges of the three-judge panel
dissented
based on the perceived family-based relationship the woman had with the
guerrilla for whom the government was searching, such dissent represented
only the minority view. Therefore, a prospective asylum applicant should
seek the guidance of a skilled immigration lawyer before attempting to
apply for asylum based on a perceived nexus.
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