BIA Holds a Minor's Age Does Not Automatically Transform Harm Into Persecution

The Board of Immigration Appeals has sustained DHS's appeal from a grant of withholding of removal to a Russian respondent who was struck by police as a 17-year-old, holding that the immigration judge erred by treating the respondent's status as a minor as itself sufficient to elevate the harm to persecution.

The Board held that age is one relevant factor in the cumulative persecution analysis but does not create a categorical rule, and that the calibration warranted here was slight given the respondent was only months from turning 18. The Board also held that a pattern-or-practice theory of persecution requires an objective, not subjective, showing of a clear probability of harm, and remanded for the immigration judge to address nexus and reconsider the claim, including CAT protection, under the correct standards.

The full text of Matter of I-U-V- can be found here: https://www.justice.gov/eoir/media/1455276/dl?inline

Third Circuit Finds that Arrest and/or Physical Harm not Required to Establish Well-Founded Fear of Persecution

The Third Circuit has determined that an asylum seeker is not required to “shelter in place” until he is arrested by a repressive regime, nor is he required to present evidence of physical harm, to establish a well-founded fear of future persecution. “As we have stressed, but apparently must emphasize yet again, we have never required someone to actually subject themself to physical harm or arrest before finding that his or her fear of returning to a country is reasonable. Merely stating such an absurdity demonstrates how illogical and impractical such a requirement would be. The contrary proposition (which the BIA relied upon here) is so unreasonable that it should have been self-evident to any neutral tribunal.” The court also reminded the BIA that remaining in hiding is not the same as safely relocating within a country. Finally, the court concluded that there is a pattern or practice of persecution of political opponents in the Democratic Republic of the Congo.

The full text of Nsimba v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/203565p.pdf

Tenth Circuit Remands Congolese Withholding Claim

The Tenth Circuit has remanded a withholding of removal claim for further analysis of whether the government of the Democratic Republic of the Congo engages in a pattern and practice of persecution of political dissidents.

The full text of Matumona v. Barr can be found here:

https://www.ca10.uscourts.gov/opinions/18/18-9579.pdf