Tuesday, September 7, 2004
Court to Review Ruling on Asylum for White South Africans
By DAVID WATSON, Staff Writer
The Ninth U.S. Circuit Court of Appeals on Friday agreed to review en banc a March decision by a three-judge panel holding that immigration officials wrongly denied asylum to a white South African couple and their two children who were allegedly persecuted by blacks based on the racist acts of a relative.
In a brief order, Chief Judge Mary M. Schroeder said a majority of the court’s unrecused judges had voted to review Thomas v. Ashcroft, 02-71656, in which the panel held that the Board of Immigration Appeals erred in determining that the claim for asylum and withholding of deportation was not supported by substantial evidence.
Judge Harry Pregerson, writing for himself and Judge Marsha S. Berzon, said in March that evidence in the case showed David and Michelle Thomas and their two children were subjected to an “escalating scheme of intimidation and a real threat of physical violence” when their pet was killed and their car and house were vandalized. Michelle Thomas was also told in the presence of her children that her throat would be cut, and one of the children was the target of a kidnapping.
Pregerson said an immigration judge was wrong to require the Thomases to show that the violence, apparently perpetrated by individual black South Africans, was sponsored, promoted or condoned by the South African government. Instead, he explained, it was enough if they could establish the South African police were—as they contended—unwilling or unable to protect them.
A remand was required to allow the immigration judge to evaluate that claim, the court said.
The violence, the Thomases claimed, was in retaliation for allegedly racist actions by David Thomas’ father, a construction foreman who the perpetrators believed verbally and physically abused his black workers.
Pregerson said the family relationship was sufficient to satisfy the statutory requirement that persecution, to qualify the victim for asylum, be based on membership in a particular social group.
The judge conceded that the case law on that question “had been somewhat unclear,” but contended that the Ninth Circuit’s January decision in Lin v. Ashcroft had “clarified that a family may constitute a ‘particular social group’ for purposes of asylum or withholding of removal.”
Senior Judge Ferdinand F. Fernandez dissented, saying the majority decision “expands and extends general language in our cases almost beyond recognition in order to foster a grant of asylum to people who are in no proper sense true refugees.” The court’s ruling, he asserted, “makes a mockery of the serious concerns that lie behind the virtually universal desire to protect people who are truly being persecuted in their own countries.”
Fernandez agued there was “little authority” in the Ninth Circuit “for the proposition that a family, as such, is a social group.” He added that the majority’s “use of that concept here shows just how poor an idea it is to extend social group status in that fashion.”
He said the majority had taken too broad a view of the types of persecution that could qualify an immigrant for asylum, in essence holding that “just any wrongdoer can be dubbed a persecutor.”
“If a disgruntled employee slugs his boss for cheating him out of his wages, that is decidedly not persecution. But, if the employee takes a cowardly swipe at his boss’s daughter-in-law, that, according to the majority, is persecution.”
Fernandez added there was “no evidence” that South African authorities were unable or unwilling to protect the Thomases from harassment.
“It should be pellucid that no government, no police force, can possibly solve every crime,” the dissenting judge declared. “That is especially true of anonymous crimes of petty vandalism and of crimes where the victims cannot, or will not, help to identify the perpetrator. In fact, the Thomases actively asked that an investigation of the final alleged crime not be conducted.”
Woodland Hills attorney Errol I. Horwitz, who represented the Thomases before the Ninth Circuit, said he was surprised by the decision to grant en banc review. He pointed out that last month the Ninth Circuit declined to rehear Lin en banc after one judge suggested it do so.
Copyright 2004, Metropolitan News Company