Jersey City, New Jersey – On July 24, 2020, the Third Circuit Court of Appeals decided Ricardo Javier Blanco v. Attorney General United States of America, Docket No. 19-3658, reversing the Board of Immigration Appeals order of removal because it wrongly required Blanco to corroborate his claim without applying the required three-part test and because the BIA misapplied Third Circuit precedent for determining what constitutes past persecution. This is the latest of about fifteen consecutive published decisions by the Third Circuit granting a petition for review due to errors by the BIA.
Blanco was a Honduran citizen who participated in six marches with an anti-government corruption political party. At the sixth march, he was arrested, had a bag placed over his head, was repeatedly beaten and threatened that he and his family would be killed if he continued to support the opposition political party. He remained in Honduras, moving from place to place to avoid the police, while the threats to kill him persisted. The immigration judge found he had not been persecuted because he did not suffer any serious physical injuries and because the officers did not follow up on their threats. The immigration judge rejected his claim for relief pursuant to the Convention Against Torture (“CAT”) because Blanco did not corroborate his testimony that his name was on a list of opposition members. The BIA affirmed the immigration judge’s findings.
The Third Circuit found multiple errors in the lower courts’ holdings. Specifically they made three errors when finding no past persecution occurred (1) by requiring Blanco to show severe physical harm, (2) by requiring the death threats to be imminent, and (3) by considering the beatings and the death threats separately, rather than collectively. The Third Circuit clarified, as it has previously, that no physical harm is required to establish persecution, that threats must be concrete and menacing, but not imminent to establish persecution, and that harm is considered cumulatively, the threats and the physical harm together, rather than individually.
The Third Circuit found it was clear, not even a close call, that Blanco had suffered past persecution and remanded the case back to the BIA to reconsider the remaining elements of asylum that it had not considered.
This case does not establish any new rules, requirements or procedures. Rather, it affirms the Third Circuit’s precedent and, hopefully, reminds the BIA to apply the law fairly and appropriately rather than with the intent to deport as many people as possible by ignoring inconvenient legal precedents.