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Tough going for deportation challenges

Immigrants to this country can face many hurdles to stay here. Seeking asylum here, illegal immigrants often raise claims that deporting them to their homelands would subject them to unfair persecution.

These claims are easy to assert but hard to substantiate. A trio of recent decisions of the 8th Circuit Court of Appeals shortly before the end-of-year holidays did not bring much cheer to the claimants.

In all three cases, assertions that they should not be deported were rejected by the Board of Immigration Appeals (the administrative agency that reviews immigration judges’ decisions), and all three decisions were upheld by the 8th Circuit.

HIV hopeful

An illegal immigrant hopeful of remaining in this country because deportation to his native Kenya would subject him to persecution due to his HIV-positive status was unsuccessful in R.K.N. Holder, 701 F.3d 535 (8th Cir. 2012). The Kenyan native sought asylum based upon his fear of returning to his homeland because his HIV-positive status and membership in an antigovernment group would subject him to adverse treatment. An immigration law judge (ILJ) rejected his claim, and the 8th Circuit affirmed.

The ILJ did not, as alleged, ignore the arguments made to resist deportation, but properly based his decision on adverse credibility determinations due to inconsistency in the immigrant’s testimony. The Board of Immigration Appeals properly incorporated the judge’s findings in upholding the decision.

The immigrant’s claim that his medical records showing that he was beaten because of his HIV status was improperly excluded from the hearing was rejected. The immigrant did not show that the outcome would have been different had the medical records been taken into account.

Political problems

A Cambodian woman who overstayed her six-month visitor VISA was unable to fend off deportation due to political problems at home in La v. Holder, 701 F.3d 566 (8th Cir. 2012). She sought to remain in the United States because she and her husband belonged to the opposition party at home, her husband was missing and presumed killed in Cambodia, and she feared she would be arrested if back in Cambodia.

The ILJ determined that there was insufficient evidence of past persecution, well-founded fear of future persecution or likelihood of torture at home. The 8th Circuit, affirming the Board of Immigration, deemed the past persecution only amounted to “low-level intimidation and harassment,” which was insufficient to bar deportation.

Her husband’s disappearance was not shown to be “politically related.” Her fear of future harm was genuine but “not objectively reasonable.” Therefore, her claims were rejected and her deportation upheld.

Guatemala gap

An illegal immigrant from Guatemala was not entitled to asylum in this country despite claims of detention, beatings and fear of future persecution in his homeland in Garcia–Colindres v. Holder, 700 F.3d 1153 (8th Cir. 2012). The ILJ denied the request for asylum, the Board of Immigration Appeals affirmed, and the 8th Circuit upheld that determination on grounds that there was a gap between the immigrant’s assertions and any involvement by the government in the deaths of his children.

The physical harm asserted by the immigrant was relatively insubstantial, and his past detention in his homeland was so “brief” that it did not rise to the level of “past persecution” in order to show that the immigrant had the statutorily required “well-founded” fear of future persecution.

The group that he claimed harassed him was no longer in power; therefore, he did not qualify for asylum as a refugee and was ineligible for asylum in order to avoid removal from the country.

These cases came at a time that the Obama administration is embarking on executive actions and on legislative programs to facilitate the road to citizenship for illegal immigrants.

Immigrants face a number of travails in their paths to citizenship in this country. These cases show some factors that trip them up in remaining in this country in the face of deportation proceedings.


Grounds to defeat deportation under Federal law

  • Big persecution by government or those in control
  • A well-founded fear of future persecution
  • Humanitarian reasons

Originally published in the February 25, 2013 edition of Minnesota Lawyer.