Ninth Circuit Overturns Denial of Asylum to South African Family
Persecution Based on Familial Relationship to Hated Figure May Be Enough for Refugee Status, Court Says
By KENNETH OFGANG, Staff Writer/Appellate Courts
A family may qualify as a “particular social group” whose members qualify for asylum based on persecution for being part of that family, the Ninth U.S. Circuit Court of Appeals ruled Friday.
The ruling by a limited en banc court overturns a Board of Immigration Appeals ruling denying asylum to members of a white South African family who were allegedly persecuted by blacks based on the racist acts of a relative. The court sent the case back to the BIA for a determination as to whether David and Michelle Thomas and their two children meet the other requirements of the asylum statute.
The Thomases came to the United States as visitors in 1997 and applied for asylum within the one-year limitations period. At a 1999 hearing, Michelle Thomas told the immigration judge that the family’s home and car were vandalized, their dog was poisoned, and they were threatened with physical violence because David Thomas’ father, a construction foreman known as “Boss Ronnie,’ was a racist who the perpetrators believed verbally and physically abused his black workers.
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, she testified.
Immigration Judge’s Ruling
The immigration judge ruled that the Thomases did not qualify as refugees because they could not show that the violence, apparently perpetrated by individual black South Africans, was sponsored, promoted or condoned by the South African government.
A Ninth Circuit panel held last year, 2-1, that the Thomases were attacked because of membership in a social group consisting of their family. It also concluded that the immigration judge and BIA had erroneously analyzed the case as one of claimed racial discrimination, and that the petitioners were not required to show that the government was responsible for the attacks, only that it was unwilling or unable to protect them.
In yesterday’s decision, the en banc court held 11-0 that a family may be a protected group, depending on specific circumstances, and by a 7-4 vote concluded that the Thomases had shown that they were such a group.
Judge Kim M. Wardlaw, writing for the court, said the recognition of families as particular social groups is consistent with past rulings of the BIA, such as a 1996 case in which the board treated young women belonging to a specific Togolese tribe practicing female genital mutilation as a qualifying group.
Other circuits have reached similar conclusions, while Ninth Circuit authority has been “[i]nexplicably” conflicted, Wardlaw said. Unable to reconcile the circuit precedent, the judge wrote, the court will “overrule all of our prior decisions that expressly or implicitly have held that a family may not constitute a particular social group.”
Wardlaw went on to say that the Thomases qualified as a particular social group “because the family demonstrated that the harm they suffered was solely a result of their common and immutable kinship ties with Boss Ronnie.”
Attacks Not Random
The government’s contention that the Thomases were victims of random crime or of retaliation for personal conduct does not hold water, the judge said, in view of evidence that the perpetrators specifically mentioned Boss Ronnie, that some of them wore overalls bearing insignia with the name of Boss Ronnie’s company, and the timing of the attacks and threats, each of which followed some sort of confrontation at the company.
On remand, Wardlaw explained, the BIA will have to determine whether the attacks and threats rose to the level of persecution and whether the Thomases have a well-founded fear of future persecution, among other issues.
The opinion was joined by Judges Stephen Reinhardt, Michael Daly Hawkins, Barry G. Silverman, Susan P. Graber, and Richard A. Paez.
Judge Pamela Ann Rymer, joined by Judges Diarmuid F. O’Scannlain, Andrew J. Kleinfeld, and Carlos T. Bea, concurred in part and dissented in part.
Rymer argued that the issue of whether the Thomas family is a particular social group should be addressed by the BIA in the first instance.
Woodland Hills attorney Errol I. Horwitz represented the Thomases before the Ninth Circuit.
The case is Thomas v. Gonzales, 02-71656.
Copyright 2005, Metropolitan News Company