Monday, October 18, 2010

Humanitarian Asylum Claim Remains in Limbo

From guest blogger, Professor Evelyn Cruz, Arizona State University:

Sholla v. Holder
2010 U.S. App. LEXIS 21306
8th Circuit Courts of Appeals
Oct. 15, 2010

Summary: In 2001 Mr. Sholla applied for asylum based on political opinion.  Mr. Sholla faced persecution in Albania because of his anti-communist political views and involvement in the Democratic Party.  The immigration judge (IJ) denied asylum and the Board of Immigration Appeals (BIA) affirmed.  Mr. Sholla appealed to the Eight Circuit.  The circuit court decided that Mr. Sholla had in fact established past persecution, entitling him to a rebuttable presumption of a well–founded fear of future persecution. The case was remanded to the IJ to reevaluate Mr. Sholla’s claim based on the circuit’s decision.
At the subsequent 2008 rehearing before the IJ, the government asserted changed circumstances.  In the years between Mr. Sholla’s original claim and his rehearing, Albania had undergone some political and social changes.  Mr. Sholla challenged the government’s claim that the changes were significant.  Additionally, he requested the IJ consider a grant of humanitarian asylum based on Matter of Chen, 20 I& N. Dec. 16 (BIA 1989) and Matter of S-A-K-, 24 I&N. Dec. 464 (BIA 2008).  The IJ refused to accept any evidence regarding humanitarian asylum, and denied the asylum claim based on changed circumstances.  The BIA affirmed the IJ’s basis for denial, and found that the record did not support a finding that Mr. Sholla endured the type of harm contemplated by Chen and S-A-K-.  Mr. Sholla again appealed to the Eight Circuit.  The Eighth Circuit agreed that the government had successfully demonstrated changed circumstances. However, in refusing to allow testimony regarding humanitarian asylum, the IJ had denied Mr. Sholla the opportunity to fully develop the record.  Therefore, the BIA’s conclusion that the record did not support a finding of humanitarian asylum was faulty.  The Eight Circuit remanded the case back to the BIA directing the court to permit Mr. Sholla to supplement the record on the issue of humanitarian asylum.
Commentary: Although we often focus on highlighting interesting unique cases, the more mundane cases truly demonstrate the challenges asylum seekers face in obtaining relief. Mr. Sholla’s case has been pending for over nine years despite having demonstrated that he was persecuted in his country.  He has appealed to the BIA and the Eight Circuit twice, and yet his case remains in limbo.


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