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Chinese Christian Indonesian asylum applicant can claim past persecution based on harm to child

Chinese Christians have historically been persecuted in Indonesia on account of their race and religion. The recent boat that sank off the coast of Australia is a reminder of the country conditions that Chinese Christians flee when they pursue asylum claims. http://www.voanews.com/content/migrants-boat-sinks-off-indonesia-australia-criticized/1709612.html

An individual is eligible for asylum if he or she can prove that they were persecuted in their home country on account of their race, religion, membership in a particular social group, nationality or political opinion. In sexual orientation claims, the applicant would fall under the "membership of a particular social group" category. If the government of the applicant's home country is not directly persecuting the applicant, the applicant may still be granted asylum if he or she can show that the government is unwilling or unable to protect them from the mistreatment at the hands of non-government actors.

We are very pleased with a recent federal court decision from the Ninth Circuit Court of Appeals that reversed an Immigration Judge's decision that a Chinese Indonesian Christian could not prevail on her asylum claim since she did not suffer any past persecution that was directed at her. The Immigration Judge would not give any weight to the fact that the applicant's infant daughter died after she was refused treatment in a hospital based solely on the fact that she was Chinese. In an inhumane decision, the Immigration Judge reasoned that the refusal of treatment was past persecution of the daughter, not the applicant.

The federal court reversed the Immigration Judge's decision that was later affirmed by the Board of Immigration appeals (BIA). The federal court reasoned the BIA committed legal error by failing to take into account the applicant's "infant daughter's death in evaluating whether she had suffered past persecution herself." The federal court explained that harm to a child can amount to past persecution when that harm is, at least in part, directed against the parent on account of the parent's race, religion, nationality, membership in a particular social group, or political opinion.

Over the years we have won many asylum cases based on harm suffered by a family member. However, the new case out of the Ninth Circuit is further legal authority that we can use in immigration court on behalf of our clients when we persuade the Immigration Judge that an asylum claim should be granted based on harm suffered by a family member.

Please follow this link for the full decision:

http://cdn.ca9.uscourts.gov/datastore/opinions/2013/07/25/08-73164.pdf

The panel held that the Board erred by failing to taking into account petitioner's infant daughter's death in evaluating whether she had suffered past persecution herself. The panel explained that harm to a child can amount to past persecution of the parent when that harm is, at least in part, directed against the parent on account of the parent's race, religion, nationality, membership in a particular social group, or political opinion.

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