Filipinos Win Asylum Cases at Court of Appeals

In two decisions that were way too long in the making, the United States Court of Appeals for the Ninth Circuit reversed the Board of Immigration Appeals (BIA) and granted political asylum to two Filipinos due to NPA persecution. The two decisions mark the end of a long line of denials of similar claims. These precedent decisions offer new hope for thousands of Filipinos whose asylum cases were denied in Immigration Court and at the BIA.

Under INA Section 208(a) persons who have suffered persecution, or fear persecution in their native country “on account of” their political opinion, may apply for asylum in the United States. The law allows for an individual to establish eligibility for asylum, even if he never has expressed a political opinion, if he can show that his persecutor has “imputed” a political opinion to him. Furthermore, case law holds that the asylum applicant need not identify the exact motive of his persecutor, but that his persecutor was motivated, at least in part, by the applicant’s actual or imputed political opinion.

Despite these standards, the Immigration Judges, the BIA and, until recently, the Federal Courts, would deny the asylum claims of Filipinos based on persecution in the past or future retribution at the hands of the communist New People’s Army (“NPA”) in the Philippines. The NPA for years has been responsible for deaths, disappearances and destruction of individuals and property in The Philippines. Since the NPA often targeted its victims in the first instance to obtain money, crops or services, the asylum applicant was usually denied as having been a victim of “extortion” rather than persecution on account of political opinion.

The Ninth Circuit, in companion cases Briones v. INS and Borja v. INS, reversed the BIA and held that even if the suffering the asylum applicant endured began as an extortion attempt, at some point the victim’s refusal to comply with NPA demands becomes an expression of political opinion. Additionally, the Court held that in participating with a Government investigation and anti-NPA campaign, an individual necessarily was involved in a “political debate,” such that the reprisals he feared due to that involvement constitute persecution.

My office recently relied on these cases to obtain reversal of a BIA decision denying asylum to Filipinos who fear the NPA. I believe that it is about time the Courts recognized the validity of the NPA’s threat in the Philippines, and the harsh reality of its communist reign of terror throughout the country.