In a decision that could affect scores of political-asylum cases, the 9th U.S. Circuit Court of Appeals in San Francisco has ruled that...
In a decision that could affect scores of political-asylum cases, the 9th U.S. Circuit Court of Appeals in San Francisco has ruled that a South African family could qualify for refugee status because it was persecuted in retaliation for a relative’s abusive and racist treatment of his workers.
Writing for the majority on Friday, 9th Circuit Judge Kim Wardlaw said a family unit can be “a protected social group” under asylum law. The decision means other applicants can apply for asylum if they are oppressed because of kinship ties.
In the 7-4 ruling, the majority overruled Justice Department lawyers, who rejected the notion of a family unit as a protected category.
The government’s position represented a radical departure from 20 years of established law and would have “created chaos” if it had been accepted by the 9th Circuit, which considers many asylum cases, said Harvard University law professor Deborah Anker, who filed a friend-of-the-court brief in the case.
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The ruling came in a case lodged by Michele Thomas, a South African woman, her husband, David, and their children, Tynel and Shaldon, who live in Ventura County, Calif.
The Thomases came to the United States in 1998 “to avoid threats of physical violence and intimidation to which they were subjected because of abuses committed by David’s father, ‘Boss Ronnie,’ who was a foreman at Strongshore Construction in Durban, South Africa,” Wardlaw wrote. “Boss Ronnie was and is a racist who abused his black workers both physically and verbally,” the judge added.
At a 1999 immigration hearing, Michele Thomas testified that an escalating series of attacks had rendered the family deeply afraid of what would happen if it remained in South Africa. In February 1996, the family dog was poisoned.
The next month, their car was vandalized and the tires slashed. Feces was thrown at their home. Finally, in 1997, she said that as she stood outside her house with her daughter Tynel, four black men, including one wearing Strongshore overalls, approached and tried to take the child from her arms. The men ran off after a neighbor, hearing her screams, came out of his house.
Michele Thomas said she believed her family, rather than her father-in-law, was attacked, because armed with weapons and living in what she described as “a fortress,” he was impregnable.
An immigration judge did not question her credibility but rejected the family’s request for political asylum, saying she had failed to prove her family’s persecution fell under any of the five statutory grounds set out for refugee status.
Under U.S. law, the attorney general may grant asylum to any alien who is a refugee, defined as a person who is unable to return to his home country “because of persecution, or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion.”
The decision was upheld by the Board of Immigration Appeals.
Last year, however, the 9th Circuit overturned the immigration judge’s opinion in a 2-1 decision. Friday’s ruling stemmed from a rehearing by a larger panel of judges that the court granted at the Justice Department’s request.
“The [Justice Department] argues that the threats and violence against the Thomases were merely retaliation for personal conduct or a result of the country’s high crime rate,” Wardlaw wrote. “However … the record compels the conclusion that the harm suffered by the Thomases was not the result of random crime, but was perpetrated on account of the family relationship with Boss Ronnie.”