CHICAGO (CN) – With an impassioned opinion by Judge Richard Posner, the 7th Circuit called on U.S. immigration officials to use more coherent standards in determining whether aliens qualify for asylum.
The stinging rebuke takes the government to task for failing to consider the persecution that might face a married Macedonian couple, Gjorgji Naumov and Ivanka Stanojkova, if removed from the United States.
The couple belonged to the Slavic ethnic majority in Macedonia, but Naumov refused to report for army duty when he was drafted in 2001 because he disapproved of the government’s effort to suppress the country’s Albanian minority.
At the time, Albanian extremists had begun an insurrection to fight for equal rights.
A few months after Naumov’s scheduled report date, three men broke into the home where the couple was living with Naumov’s parents. After knocking out the parents with a chemical spray, the attackers beat Naumov’s head with a gun and ripped the pajama top off his pregnant wife to fondle her breasts. The men said Naumov and Stanojkova were “betrayers of Macedonia” because Naumov “did not participate in the war” suppressing Albanian insurgents.
When the police responded after more than six hours, they declined to pursue the break-in because the assailants were “Lions,” a term used to describe members of Macedonia’s paramilitary special police force.
The couple fled to the United States without a visa and petitioned for asylum under the Convention Against Torture.
An immigration judge denied the petition, finding that the couple had not been persecuted. Then a single judge with the Board of Immigration Appeals issued a panel decision affirming the denial of relief and ordering removal.
On July 14, the 7th Circuit granted the petition for review.
Posner began by lamenting the deficient handling of the case to date. He called the immigration judge’s reasoning “garbled” and based on “warped logic.” To make matters worse, just one Board member handled the petition, constituting an “appellate tribunal.” Normally, three judges sit on such panels.
Naumov and Stanojkova’s experience rose from harassment to the level of persecution, according to the federal appeals court.
“What the opinions of the board member and immigration judge came down to is that one can imagine worse mistreatment than the Naumovs underwent,” Posner wrote. “That is not a reasoned basis for rejecting a claim of persecution.”
The problem was the lack of clear definitions of persecution and coherent standards for assessing asylum claims, the 12-page decision states.
Posner attempted to fill the gap by explaining that persecution could describe a physical attack on someone, locking a person in a cell and starving him, or psychologically attacking him by blocking the practice of religion.
“The line between harassment and persecution is the line between the nasty and the barbaric, or alternatively between wishing you were living in another country and being so desperate that you flee without any assurance of being given refuge in any other county,” Posner wrote.
The immigration board had once defined persecution as: “harm or suffering that is inflicted upon an individual in order to punish him for possessing a belief or characteristic a persecutor seeks to overcome.” But Posner said this is too vague and gives judges near-unilateral discretion.
“The result, well-illustrated by the administrative opinions in this case, is capricious adjudication at both the administrative and judicial level, generating extraordinary variance both in grants of asylum in similar cases at the administrative level and in reversals by courts of appeals of denials,” Posner wrote.
“Responsibility has by default devolved on the courts … yet only provisionally – only until the Board assumes the responsibility – to try to create some minimum coherence in the adjudication of claims of persecution, as we have tried to do in this opinion,” he added.
Justice Department statistics show that 59 U.S. immigration courts processed the 32,961 asylum petitions filed in 2010, ultimately granting less than 30 percent.