9th Circuit Expands Definition of “Past Persecution” for Asylum Seekers

By Attorneys Robert L. Reeves and Eric R. Welsh

Asylum is generally recognized as a basic human right, and under United States immigration law, asylees and refugees can obtain permanent resident status in the United States.  Asylum provides a mechanism to escape persecution and resettle in a safe country, free from fear and harm.  In the U.S., asylum seekers have the burden of proving that they suffered persecution, or that they have a “well-founded fear” of persecution, should they return to her home country.
The U.S. Immigration & Nationality Act (“INA”) defines a “refugee” as a person “who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, [her home] country because of persecution or a well-founded fear or persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” If the applicant has been persecuted in the past, this past persecution raises a presumption that the applicant will be persecuted in the future.
An applicant for asylum must prove that the harm feared (or the harm actually experienced) rises to the level of “persecution.”  Persecution does not have a strict definition, but has been described by the Ninth Circuit Court of Appeals as “an extreme concept, marked by the infliction of suffering or harm […] in a way regarded as offensive.”  The Ninth Circuit recognizes that persecution can come “in many forms,” including “physical, economic, and emotional harm.” 

The applicant need not establish that he or she suffered one particular incident that rises to the level of “persecution,” but rather may show that a series of events that individually may fall short of “persecution” are, considered together, an act of long-term “persecution.” 
On February 7, 2012, the Ninth Circuit published a decision that expands upon the definition of “past persecution,” and clarifies that persecution suffered by the very young must still be considered in assessing eligibility for asylum. 

In Mendoza-Pablo v. Holder, the Ninth Circuit reversed an Immigration Judge’s denial of asylum to an ethnic Mayan from Guatemala.  When Mendoza-Pablo’s mother was pregnant with Mendoza-Pablo, Guatemalan government forces attacked his mother’s ancestral village, burned it to the ground, and massacred its inhabitants, including Mendoza-Pablo’s grandparents and aunts.  His mother fled to the mountains where Mendoza-Pablo was born, premature and severely malnourished.  Later, he and his mother fled to Mexico, where Mendoza-Pablo was unable to attend school, and where he struggled to find work. 

The Immigration Judge (and the Board of Immigration Appeals) had found that Mendoza-Pablo did not suffer “persecution” because his experiences only constituted “second hand exposure.”  According to the Immigration Court and the Board, the Mendoza-Pablo was too young to personally experience the harm, and thus, he had not established that he suffered past persecution.

The Ninth Circuit disagreed.  The Ninth Circuit found that Mendoza-Pablo’s experiences as a prematurely born, severely malnourished infant must be considered and should not be dismissed merely by the fact that these harms befell a very young child.  The Ninth Circuit also found that the persecution suffered by Mendoza-Pablo’s mother when she was pregnant with Mendoza-Pablo should be considered, in light of the fact that her suffering materially impeded her ability to care for her infant child. 

The Ninth Circuit found that the Immigration Court and the Board had erroneously ignored the harms suffered by Mendoza-Pablo as a child—including the likelihood of permanent trauma and social maladjustment—and failed to consider the economic and social harms he experienced as a young man on account of his family’s reasonable fear of harm.  These factors, according to the Ninth Circuit, cumulatively amount to a finding of past persecution.
Decisions like Mendoza-Pablo instruct asylum applicants to probe deeply into all relevant facts that might constitute a claim for asylum, and to creatively consider all possible harms that might have been suffered by the claimant.  Asylum is a complex and thorny area of immigration law that requires extensive credible evidence and careful legal analysis.  If you believe you may have a claim for asylum because of past persecution or a fear of persecution in your native country, you should consult with an experienced immigration attorney to assist you in analyzing your claim and applying for relief.