Friday, December 10, 2010

Ninth Circuit Finds Constant Prolonged Harassment to Constitute Persecution

Javhlan v. Holder No. 06-71565

United States Court of Appeals for the Ninth Circuit

2010 U.S. App. LEXIS 24710 (December 3, 2010)


Ms. Javhlan a native and citizen of Mongolia worked at the British and Indian embassies as well as the UN Development Program.  She was approached a number of times over several years by secret police agents who threatened to assault, imprison, rape or kill her if she did not agree to act as a spy for them.  In 1995 Ms. Javhlan was arrested and interrogated for four or five hours by the secret police.  In 2001, she developed paralysis on the left part of her face because of her duress.  In 2002, Ms. Javhlan’s husband was inexplicably fired from his job, and shortly thereafter she received a threatening call telling her that the next time she was arrested she would be raped.  Ms. Javhlan and her husband fled the country.  After they left, the secret police contacted Ms. Javhlan’s mother and brother demanding to know Ms. Javhlan’s whereabouts.  The relatives refused to answer.  A car belonging to Ms. Javhalan’s brother was blown up one day after he was visited by the secret police.  Ms. Javhlan was driven to contemplate suicide by her experiences.

The immigration judge ruled that Ms. Javhlan had not established neither past persecution nor the threat of future persecution and denied relief.  The Board of Immigration Appeals affirmed without opinion. 

The Ninth Circuit reversed the BIA deciding that, “the cumulative effect of the constant threats by the secret police combined with the mental anguish and physical paralysis that Javhlan suffered as a result constitute persecution.”  The Ninth Circuit also refused to grant the government an opportunity on remand to provide proof regarding changed circumstances because the government had not made an argument before the IJ or the BIA concerning changed country conditions.  The Ninth Circuit concluded that Ms. Javhlan is eligible for asylum and withholding, and remanded the case to the BIA to exercise distraction as to whether to grant relief.

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