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Justices Overturn Ruling on Asylum for South Africans
By a MetNews Staff Writer
The U.S. Supreme Court yesterday reversed a Ninth U.S. Circuit Court of Appeals ruling in favor of a white South African family seeking asylum in this country.
A limited en banc panel of the Court of Appeals ruled last year that Michelle Thomas and her family constituted a “particular social group” and were potentially eligible for asylum because they had been harassed as a result of their connection to Thomas’ father-in-law, who has clashed with black workers at a construction company in South Africa.
But the Supreme Court, in a per curiam opinion, said the Ninth Circuit should not have ruled on the “social group” claim because it was not resolved by the immigration judge, or the Board of Immigration Appeals, both of whom rejected the applicants’ claim that they were persecuted because of their race and their own political opinions.
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.
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 two years ago, 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 last year’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.
The Ninth Circuit said the case should go back to the BIA 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.
But the high court yesterday cited its ruling in INS v. Orlando Ventura (2002) 537 U. S. 12, in which it reversed a Ninth Circuit ruling in favor of a Guatemalan asylum applicant. The justices said the Ninth Circuit should have allowed the immigration authorities to determine, in the first instance, whether conditions in Guatemala had improved to the point where the applicant—who was related to a government official and claimed he feared being attacked by rebels who were at war with the government at the time of his asylum hearing—could safely return.
The Thomases, the high court said yesterday, had not shown any reason why Ventura’s “ordinary remand” rule should not apply.
Woodland Hills attorney Errol I. Horwitz represented the Thomases.
The case is Gonzales v. Thomas, 05-552.
Copyright 2006, Metropolitan News Company