Sunday, April 29, 2007

Pro Bono Victory For Asylum Seeker Given Bad Immigration Court Decision

Ben Deutsch and Jane Kauh of Schnader Harrison Segal & Lewis LLP achieved a resounding Second Circuit victory in a pro bono case for a Russian Baptist woman. In Paltseva v. Gonzales, 2007 U.S. App. LEXIS 9517, No. 04-1260-ag NAC (2d Cir. April 25, 2007) (unpublished), the Second Circuit gave a full and complete victory on the appeal for someone seeking asylum.

The BIA and IJ Miriam K. Mills denied a request for asylum and asylum-related relief for a Russian Baptist woman for several reasons, each of which the Second Circuit ruled was an unjustified ruling.

First, the BIA ruled that what she suffered did not qualify as past persecution in direct contradiction to how the "virtually identical" harm suffered by two others in a precedential 1998 BIA case were enough to be considered past persecution. The BIA had no apparent justification for coming up with an opposite decision, so the Second Circuit overturned the BIA's decision and granted the appeal.

As if that weren't enough, the BIA also ruled that she did not show the government was unwilling to stop the persecution. However, she testified that she reported what happened to the police and they refused to take any action -- which is definitely enough to show that the government was unwilling to protect them. It is hard to see what the BIA might have been thinking.

There was also some discussion about how the BIA's reliance on optimistic hopes for improvement in a 2002 State Department report seems misplaced in light of how the 2006 State Department report believes Russia is retreating from the 2002 improvements.

Here's hoping that Ms. Paltseva's lawyers are awarded EAJA fees under the Equal Access to Justice Act, considering how it seems the IJ, BIA, and government lawyers took unfounded positions in the case.

Imagine how difficult it has been for Ms. Paltseva that after this successful appeal, she will have to do her asylum case over again -- thereby consuming the past 3.5 years of her life just to fight her way back to the same spot she was when she started. The injustice of having to go through this to fix the BIA and IJ's errors is very disappointing. Unfortunately, there is a long series of similar cases where the BIA and IJ have incorrectly ruled against asylum-seekers and after long appeals, the circuit courts step in to let the asylum-seekers get a second chance by bringing them all the way back to step one.


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