In order to be eligible for asylum, an applicant must demonstrate that she or he is a member of one of the protected classes (race, religion, nationality, political opinion or particular social group) and that there is a well-founded fear she or he would be persecuted if returned to his or her native country. When determining whether a well-founded fear of future persecution exists, having suffered past persecution creates a presumption the person would be persecuted again in the future. Sometimes we encounter cases where it seems so obvious a person should be granted asylum it is hard to imagine the government objects to such status. And sometimes, these cases are useful for establishing, or affirming, case law that may be used to help other applicants.
Such is the situation recently decided by the United States Court of Appeals for the Third Circuit in Sumaila v. Attorney General, decided on March 31, 2020. Mr. Sumaila was born and raised in Ghana. When his family observed him in a homosexual relationship, the response was immediate, verbally agressive, and violent. While disparaging and insulting his actions, his family and a crowd of others beat Mr. Sumaila and his partner with stones, wooden sticks and iron rods and dragged them into a courtyard. The mob debated how to kill them, by burning or beheading, while dousing the men in kerosene and brandishing a “cutlass,” which is a curved sword with a sharp edge like a machete. Mr. Sumaila managed to flee, naked and bleeding, and a friend drove him to a neighboring country. He has heard his father publicly disowned him and has pledged to kill him if provided the opportunity. Eventually, Mr. Sumaila found his way to the U.S. where he applied for asylum.
At the immigration court in New Jersey, the immigration judge found Mr. Sumaila did not suffer past persecution or have a well-founded fear of future persecution because he could keep his homosexuality a secret. The Board of Immigration Appeals agreed and affirmed the immigration judge’s decision.
In its review, the Third Circuit confirmed that homosexuality is a protected Particular Social Group. The Third Circuit rejected the lower courts’ conclusion that the abuse Mr. Sumaila suffered was not on account of his homosexuality. There could be no question the violence was based on his homosexuality based on the sequence of events and language used by the mob. The Third Circuit also clarified the standard for determining when death threats constitute persecution: death threats that are highly imminent, concrete and menacing and that cause significant actual suffering or harm are considered persecution. A threat is concrete when it is corroborated by credible evidence and it is menacing when it reveals an intention to inflict harm. Physical harm is not a requirement, but may be considered. The question to ask is, “Whether the aggregate effect of the applicant’s experience including or culminating in the threat, put the applicant’s life in peril or created an atmosphere of fear so oppressive that it severely curtailed his liberty.”
Having established these legal standards, the court soundly rejected the government’s argument to require actual harm or execution of the threat because doing so. The reasoning is obvious, such a standard would require the victim to gamble on his life rather than secure his safety, which is exactly what asylum and refugee law are trying to prevent. The court also rejected the lower courts’ mistaken exclusion of the threats in their analyses and their mistaken beliefs that a single incident could not constitute persecution or that physical harm or medial treatment is a requirement.
The Third Circuit concluded by warning the immigration judge to be more open-minded, to be more sensitive, and to ask more appropriate questions.
This opinion was a harsh rebuke of the BIA and the immigration judge. It is historically uncommon for appellate courts to criticize lower courts so harshly, but it is becoming more common as the immigration courts and immigration judges become more focused at deporting people at all costs rather than on fair and scholarly review of facts and application of law. It is sad that non-citizens must be able and willing to litigate for so long and at such great expense in order to even get a fair chance, but it is comforting to know that such a chance still exists.