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Why It Is So Hard To Win Asylum In The United States: A Straighforward Case Becoming A Complicated Nightmere

Author: New York Asylum Lawyer Alena Shautsova

With so many talks about immigration and a rising number of asylum seekers and refugees, it is almost not a strange thing to talk about yet another asylum seeker. Why is his case special? Why was he denied asylum? What led to the threats on his life?

These are some questions this article seeks to answer.

Mario Rajiv Flores Molina fled his home country, Nicaragua due to the threats of torture, imprisonment, and possible death meted out by government officials. Although he was once denied asylum when he first presented himself, a new court ruling has given hope to his pursuit of asylum in the United States.

Molina gave his all when he protested against the government of Nicaragua for its high level of corruption and illiberalism which resulted in beatings, vandalism, arrest, and death threats. After several attempts, he fled Nicaragua for the United States to seek asylum. To his utmost dismay, a federal immigration board ruled that the treatment he received in his country did not "rise to the level of past persecution" since the death threats he received weren't "especially menacing." As a result, the board ordered his removal to Nicaragua. Luckily for Molina, the United States 9th Circuit Court of Appeals ruled that the immigration board was wrong not to grant him asylum.

Problems started for Molina when in 2018 a protest began against the regime of President Daniel Ortega and pension reforms that resulted in higher taxes but lower benefits. In response to the uprising, the Nicaraguan Parliament passed a law that permitted security operatives and the state to treat the protesters as terrorists. Hundreds of people were killed in the crackdown that followed.

Mario Molina eventually joined the protest in Esteli streets in Nicaragua, where the police and other security operatives constantly shot at and killed protesters. He got into trouble with government officials when he audaciously appeared repeatedly in demonstrations. Soon enough, he was singled out on social media and was threatened imprisonment in a facility well known for brutally torturing political dissidents.

Seeking safety, he fled twice to locations in Nicaragua he thought were safer, but government supporters found him on both occasions. The second time he was caught, six members of the pro-Ortega Sandinista Youth mercilessly beat him up with a warning, "This is what happens to the ones that want to be part of the coup. And at the next encounter, we're going to kill you." At this moment, he knew he had to flee for his life. He set out for the U.S.-Mexico border where he requested asylum.

One may be qualified for asylum in the U.S. if "they have suffered persecution or fear that they will suffer persecution due to" political opinion as in Molina's case. His testimony was consistent with the declaration he submitted in support of his application for relief by an immigration judge. Yet the judge held that he hadn't demonstrated past persecution or any fear of future persecution. This wasn't because Molina wasn't threatened and abused but the judge held that it didn't count as persecution. Hence, he can't be granted asylum or his removal cannot be withheld.

A similar verdict was given by the Board of Immigration Appeals (BIA) in November 2019 following Molina's appeal. The board ruled that the threats faced by Molina weren't extreme or menacing enough to establish past persecution. In a bid to demean his persecution claim, the board cited the relatively small number of political activists detained in Nicaragua, and how Molina was only assaulted once.

After sitting to review the decision of the BIA last week, the 9th Circuit Court of Appeals ruled against the decision of the BIA citing the failures and shortcomings on the BIA's part. The 9th Circuit revealed that the BIA relied on two selected reports on the release of 100 prisoners and a speculation to release more by Ortega's regime. Hence, the BIA deemed Molina's fear of future persecution to be unfounded without giving thought to the continuous and repeated death threats thrown at Molina.

Molina's initial hearing and appeal were conducted under the Trump administration with judges who were likely to favor the Trump-era policies on immigration. Significantly since Trump increased Board members from 17 to 23 as well as selected judges who agreed with his take on immigration. Hence, the 9th Circuit Court of Appeals has remanded the cases already decided by the board for another hearing.

It has also been gathered that the Biden administration is working earnestly to undo some of the policies developed by the Trump era as they are deemed harmful to legal processes. The border wall and family separation policies are some that are currently being scrapped.

Previously, Attorney General Merrick Garland discarded laws that made it difficult for victims of gang or domestic violence to seek asylum.

However, the problem here, as one can see that asylum relief (if you want to admit to it or not) often depends on subjective perspective of an administrative representative. In other words, some judges or asylum officers will agree that a person has suffered persecution, but some would consider the misfortunes suffered to be only minor, or motivated by some other, unprotected grounds. That is why it is absolutely a must that each asylum seeker has the best legal representation possible. Currently, advocates are working on making sure that for those who cannot afford it, the government will be providing free Immigration services. There are free immigration services now as well, but their resources are extremely limited, and often, they are overwhelmed with the amount of cases before them. Nevertheless, non-for profits such as Catholic Charities, do an amazing job helping thousands of persons in the United States, regardless of their religious denomination.

30 June 2022
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