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Ninth Circuit:
Private Threats for Practicing ‘Witchcraft’ Relevant to Asylum
Opinion Says Immigration Board Failed to Consider Whether Warnings, Harassment by Neighbors So Interfered With Petitioner’s Ability to Freely Worship as to Amount to Persecution
By Kimber Cooley, associate editor
The Ninth U.S. Circuit Court of Appeals held yesterday that an asylum seeker’s claims of harassment and threats by neighbors in Brazil over her practice of a religion that some locals associate with witchcraft must be considered in connection with her claim of persecution as the experiences may have impacted her ability to freely practice her faith even if the actions would not otherwise rise to the level required for relief from deportation.
In order to be eligible for asylum, an applicant must establish a well-founded fear of persecution on account of race, religion, political views, or other protected categories.
Under governing regulations, if a petitioner is able to establish past persecution, an immigration court will presume the existence of a “well-founded fear” and that relocation within the country of origin would not be reasonable, even if the harassers are not government actors.
“Persecution” is not defined by the Immigration and Nationality Act, but case law has established that it requires extreme circumstances and refers to something more than discrimination or harassment.
At issue is whether the neighbors’ harassment of the religious petitioner amounted to “past persecution” under the standard announced by the court’s 2018 decision in Guo v. Sessions, which dealt with an applicant who claimed that local police in China arrested and beat him for attending a Christian “home church.”
In Guo, the court said that “in evaluating religious persecution claims,” judges must consider “how substantially the government (or other individuals that it was unable or unwilling to control) have restrained a petitioner’s practice of his or her religion.”
Religious Conversion
The question arose after Silvana De Souza Silva sought asylum in the U.S. after fleeing Brazil due to purported harassment in her former hometown after she converted to the Afro-Brazilian religion Candomblé, which was brought to the region by African slaves. The sect is unpopular among many in the South American country, as critics point to rituals involving animal sacrifice and spiritual possession.
Silva claims that after a neighbor’s father was murdered for his involvement with Candomblé, she and her husband became the target of harassment. She says that her home was frequently vandalized by graffiti bearing the words “Witch” and “Sorcerers,” and that she had to pull her children out of the local school due to bullying.
In September 2021, a masked man with a gun allegedly broke into the family home and grabbed Silva by the neck. The invader purportedly told her:
“Witch, leave this town with your black magic family. This is just a warning….Next time you won’t live to see another day.”
During a hearing before an immigration judge (“IJ”), the petitioner presented country conditions evidence regarding religious-based violence against those who follow Candomblé, which noted that a growth in evangelicalism in the country has brought with it a hostility to the religion. According to Silva, over 200 temples closed in 2019 due to threats or fear.
Asylum Application Denied
After Silva’s testimony, the IJ denied her asylum application, finding that the harm she experienced did not rise to the level of persecution and that she could safely relocate to another part of Brazil. Agreeing with the immigration judge’s decision, the Board of Immigration Appeals (“BIA”) affirmed; Silva filed a petition for review in the Ninth Circuit.
In yesterday’s opinion, written by Senior Circuit Judge Richard A. Paez, the court said:
“[I]n determining whether De Souza Silva experienced harm rising to the level of persecution, neither the BIA nor the IJ considered the impact of her past experiences on her ability to freely practice her religion. The agency’s failure to consider the harm to her religious practice is legal error and affects the agency’s internal relocation analysis. Thus, we grant the petition and remand for the agency to reconsider its past persecution determination and the remaining elements of De Souza Silva’s claim for asylum.”
Circuit Judge Kim McLane Wardlaw and Senior Circuit Judge Carlos T. Bea joined in the opinion.
Religious Persecution
Addressing the petitioner’s religious persecution claims, Paez said:
“There is ample ‘highly probative record evidence’— none of which was mentioned or analyzed by the IJ or BIA— that the harms and abuses De Souza Silva faced, including harassment, recurring and escalating vandalism, and an armed death threat during a home invasion, caused her to practice Candomblé underground and eventually flee….She testified that if she were to go back to Brazil, she would not be able to practice her religion ‘openly.’ She similarly testified that Candomblé practitioners in her neighborhood keep their religion confidential to avoid harm.”
Based on this testimony, he opined:
“Practicing in secret is particularly burdensome for Candomblé practice, as Candomblé practitioners wear ‘traditional garb or adornments’ and practice through ‘easily identifiable’ ‘worship music, generally rich in percussion.’…De Souza Silva testified that, in Brazil, she could not ‘live without being afraid of practicing her religion,’ could not ‘dress with [religious] colors and clothing,’ and felt scared that if people knew where she lived, they would cause her harm. There is no indication that the IJ or BIA considered any of this testimony or evidence in their decisions.”
Internal Relocation
Paez said that “the burden of demonstrating that relocation is safe and reasonable” also “depends on whether De Souza Silva establishes past persecution.”
He noted that amendments, enacted in 2020, to the applicable federal regulations, found at 8 C.F.R. §1208.13(b)(3), would eliminate the presumption that a petitioner who had established past persecution does not have reasonable relocation options within the country if the perpetrators of the abuse are private as opposed to government actors.
However, he said that an injunction, issued by the U.S. District Court for the Northern District of California in the Pangea Legal Services et al v. U.S. Department of Homeland Security, is “in effect preventing the implementation, enforcement, and application of the December 2020 amendments to the regulation.”
Under these circumstances, he declared:
“Under the effective version of the provisions, even if her persecutors are not government or government-sponsored actors, a past persecution determination would entitle De Souza Silva to a presumption that internal relocation would be unreasonable.”
The case is De Souza Silva v. Bondi, 24-834.
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