Tuesday, July 5, 2011
I’m helping to coordinate an amicus curiae brief on behalf of immigration law professors, in support of a petition for certiorari being filed before the Supreme Court on behalf of two Albanian refugees—a young woman and her teenage son. The case is Demiraj v. Holder, recently decided in the Fifth Circuit.
The facts of the case are jaw-dropping. An Albanian national cooperates with U.S. prosecutors by agreeing to testify against an Albanian mobster wanted for human smuggling and sex trafficking. The mobster escapes back to Albania (now a fugitive of American justice) and instead of protecting the government witness, they deport him to Albania where the mobster kidnaps him, tortures him, and shoots him. The witness miraculously escapes, returns to the U.S., and is granted Withholding or Removal. The mobster goes after his family, sending his parents into hiding, and his brother to Greece. He captures the witness’s nieces, traffics them to Italy and Germany, tortures them, and forces them into sex slavery. They escape to the U.S., and they are granted asylum. None of those facts is in dispute. Now the witness’s wife and teenage son (who are most certainly targets of the mobster if they are removed to Albania) apply for asylum and are denied. Why? Because they haven’t demonstrated that the persecution from the mobster is “on account of” their family membership, “as such.” The Fifth Circuit, unlike the First, Fourth, Seventh, or Ninth Circuits, takes the view that the Immigration and Nationality Act only protects refugees fleeing persecution based on family membership where the persecutor seeks to destroy the entire family line or wants to attack the family identity directly. Every other circuit to have looked at the Act has interpreted it to protect precisely the persecution here—in response to the acts of a family member.
If any law professor readers out there would like to participate in this amicus, please email me at email@example.com within the next few days. Thanks.