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Top 3 First Circuit Immigration Decisions of 2012: Asylum Edition

By Corey Licht, Esq. on December 28, 2012 | Last updated on March 21, 2019

It's been a big year for immigration law. Many of the First Circuit Court of Appeals' most noteworthy decisions this year have dealt with asylum and what it takes to obtain "refugee" status.

Below, we've included three of the most interesting asylum rulings the appellate court has issued this year.

1. China's One-Child Policy and Per Se Refugee Status

Congress enacted 8 U.S.C. 1101(a)(42)(B) to help the victims of China's one-child policy attain asylum. In October, the First Circuit Court of Appeals ruled that while the statute applies to those who were forced to undergo an abortion, it doesn't automatically extend to their spouses.

Xian Tong Dong, a Chinese national, was seeking asylum in the U.S. after the Chinese government forced his wife to abort their second child. Xian claimed he was entitled to per se refugee status as "a person who has been forced to abort a pregnancy," arguing that a man whose wife is forced to abort a pregnancy loses the child the same way the mother does.

The First Circuit rejected Xian's argument, holding that the focus of the statute is on the persons forced to personally undergo the procedure, rather than on the results of the procedure. Now Chinese nationals seeking asylum based on the one-child policy, should either include the husband on the wife's application, or seek derivative asylum for the husband.

2. Unpleasantness Isn't Necessarily Persecution

Back in September, the First Circuit differentiated between systematic persecution and a series of unfortunate events. Olena Rebenko, a Ukranian woman, sought asylum in the U.S. after being harassed, beaten, and arrested in the Ukraine for her Pentecostal beliefs.

While Rebenko testified that she had been mistreated on account of her religion on four separate occasions, only one incident was attributable to the government: the May 1999 arrest of Rebenko and her religious congregation.

The appellate court held that a reasonable adjudicator could find that the arrest didn't qualify as persecution. The court also stated that the immigration judge could've reasonably concluded that the incidents Rebenko described weren't "systematic" mistreatment but rather a "series of isolated incidents."

3. Being Credible Isn't Enough

Luis Escobar, a citizen of Guatemala, appealed after the Board of Immigration Appeals' (BIA) rejected his application for asylum. Escobar claimed that he and his family became the targets of guerillas after he resisted their recruitment efforts on two separate occasions.

He described three incidents involving guerilla attacks: one incident in which guerillas allegedly bombed a bus driven by his father, another incident in which guerillas robbed his mother, and a third in which his mother witnessed guerilla activity while riding a bus.

The appellate court held that while Escobar was a credible witness, he failed to show that his family was targeted on account of his political beliefs. Instead, the First Circuit determined that Escobar and his parents were simply the victims of "general harm attributable to the widespread civil strife that plagued" the country.

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