Violence in Fiji May Offer Chance for U.S. Asylum

(CN) - The 9th Circuit ordered a review of an Indo-Fijian Muslim's request for asylum, finding that the most recent takeover of the island nation by its military may put members of the ethnic and religious minority at risk for discrimination, rape and torture.

Indo-Fijians, whom the British brought to the South Pacific islands in the 19th century as contract laborers from India, make up about 38 percent of Fiji's population. They have suffered abuse, curtailed rights, harassment and in some cases torture at the hands of native Fijians since political unrest gripped the country in the late 1980s, according to a ruling published Friday.

The federal appeals court in San Francisco ruled that an immigration judge and the Bureau of Immigration Affairs (BIA) had failed to consider the fallout from a 2006 coup - the fourth military takeover of the country since 1987 - when it denied Jannif Ali's petition for review of his applications for asylum and withholding of removal.

The 9th Circuit has ruled on least 14 related Indo-Fijian asylum requests since 1995.

One such case from 2000, Gafoor v. INS, provides a chilling synopsis of some of the worst crimes committed against the Indo-Fijians, most of whom are Hindus and Muslims in a largely Christian nation.

"The Department of State received numerous reports of physical abuse of detainees by the military, some of whom were forced to run barefoot on blacktop roads in the hot sun for several kilometers or were dumped in pit latrines or in the sewage treatment holding plants," according to the case, quoted in Friday's ruling. "The most horrible reported attacks on Indo-Fijians include women raped in front of their children, political opponents brutally beaten, detainees forced to walk naked in the streets while holding human excrement, people forced to swim in sewage ponds, and children stripped and beaten for Sunday curfew violations and forced to rub their noses against a concrete floor until their noses bled. Ethnic Fijian youth gangs raided, stoned, and fire bombed Indo-Fijian homes. In 1989, five Hindu temples were burned. In October 1990, an Indian school was burned. Freedom of speech was severely constrained, and political meetings and demonstrations banned."

Fleeing such treatment, Ali and his family came to the United States in 1989 on visitors' visas. Ali applied for asylum in that year, but the government didn't interview him until 14 years later, when it began removal proceedings against him for overstaying his visa.

Ali claims that after the 1987 coups, he was harassed by native Fijian soldiers while praying at a mosque, and that soldiers beat him, vandalized his house and threatened to rape his wife, among other things.

In 2004, an immigration judge found that Ali had provided proof to establish past persecution, but concluded that he was not eligible for asylum. Citing the U.S. State Department's 1996 and 2004 country reports for Fiji, the judge ruled that the federal government had refuted Ali's claims with evidence that Fiji's political conditions had improved.

The BIA agreed with the immigration judge, and Ali appealed. While the appeal was pending, Ali moved to reopen his case, claiming that a 2006 coup in Fiji had renewed the dangerous conditions for Indo-Fijians. The BIA denied his petition in 2007, finding that that most recent coup had no bearing on the issue.

The three-judge appeals panel reversed that decision on Friday, saying that the immigration judge and the BIA had failed to give Ali an "individualized" determination as to whether Indo-Fijians still face discrimination and possible violence in Fiji.

"The BIA and IJ correctly afforded Ali the presumption of a well-founded fear of persecution," Judge Sidney Thomas wrote for the panel. "But their finding that the government had rebutted that presumption is not supported by substantial evidence because they failed to make an individualized determination of how the changed country conditions in Fiji impacted Ali's specific harms and circumstances. In addition, the BIA abused its discretion when it denied Ali's motion to reopen because it failed to analyze the effect of the 2006 coup on Ali's presumption of a well-founded fear of persecution."

Thomas added that "the new material, detailing the 2006 coup, could have made it more difficult for the government to rebut Ali's presumption of a well-founded fear of future persecution."

The panel granted Ali's petition for review and remanded the case back to the BIA for another look.

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