Harm to woman's child was "past persecution" in removal case

April 11, 2014

Harm to woman's child was "past persecution" in removal case

Article provided by Fish Law Group LLC
Visit us at http://www.fishlawgroup.com

When a non-citizen, or "alien" makes a claim for withholding of removalfrom the United States, the alien must prove that his or her life or freedom would be threatened in their home county because of their membership in a particular social group, nationality, political opinion, race or religion. This burden of proof can be met by showing that the alien experienced past persecution in their home country on account of one of the five protected grounds or, generally, that it is more likely than not that he or she would face such persecution in the future if removed.

However, what if the persecution involved another member of the alien's family? For example, could a parent seeking the withholding of a removal action show that she had been persecuted based on the harm inflicted on her child?

The United States Court of Appeals case of Sumolang v. Holder discussed this situation.

A woman's child ignored at a hospital

The alien in this case was a native and citizen of Indonesia. The woman was a Christian and of Chinese descent, a minority group that has faced a long history of violence and discrimination in Indonesia. The woman faced discrimination at the school, taunted by anti-Chinese slurs, and harassed and groped by Muslim men when she rode public transportation.

When the woman and her husband brought her baby daughter to a hospital for treatment, she was ignored at first. Eventually, a doctor sought a bribe to treat the daughter and when the bribe was refused, he left without treating the child. When the child's condition deteriorated and the parents demanded that a doctor check the child, one doctor replied that, "you Chinese don't know your place." By the time a doctor finally saw the girl, it was too late and she died.

After time in the United States, the woman applied for withholding of removal. The immigration judge denied relief and ordered her removed to Indonesia unless she voluntarily departed within sixty days. The woman appealed this order.

Was the hospital incident past persecution?

The Ninth Circuit Court of Appeals found that, while the incidents of discrimination and harassment the woman had personally experienced did not rise to the level of past persecution, the incident involving the woman's child was a different matter. Harm to a child could, indeed, amount to past persecution of the parent when the harm was in part, directed at the parent because of the parent's race and religion.

The account of what happened at the hospital made clear that the doctors and nurses deliberately ignored the child's medical needs because her parents were Christian and her mother was Chinese. In fact, the motivation of the hospital staff could only be understood as directed against the parents, since a three-month-old infant lacked the capacity to adopt a religious faith.

Thus, the immigration case was remanded to the Board of Immigration Appeals for reconsideration, with directions to give full weight to the evidence concerning the child's death.

Achieving your immigration goals

If you are facing immigration issues, you should contact an experienced immigration attorney who can work to achieve a favorable outcome. Immigration is a complex area of the law and a variety of immigration laws could potentially pertain to your particular case, so ensure your attorney has the know-how and experience to improve your chances of achieving your immigration goals.