noting that “threats of violence and death are enough to constitute persecution”
How later courts described this case
- noting that “threats of violence and death are enough to constitute persecution”
- “escalating scheme of intimidation and a real threat of physical violence” deemed persecution
- asylum and withholding of removal
- "Threats of violence and death are enough to constitute persecution."
Written by the judges who cited it.
The opinion
FERNANDEZ, Circuit Judge,
dissenting.
I dissent from the grant of the petition on multiple grounds.
First, in this circuit there is little authority for the proposition that a family, as such, is a social group, 1 and the use of that concept here shows just how poor an idea it is to extend social group status in that fashion.
Second, I see no basis for deciding that every blow or crime perpetrated against a person is persecutory, without any real consideration of who did it and why. If a disgruntled employee slugs his boss for cheating him out of his wages, that is decidedly not persecution. But, if the employee takes a cowardly swipe at his boss’s daughter-in-law, that, according to the majority, is persecution. Of course, this is part and parcel of the anomaly wrought by the majority’s decision that a family is a social group and, therefore, that the members ipso facto have a free-standing claim to refugee status. 2 It is also an emanation from the concept that just any wrongdoer can be dubbed a persecutor, which leads to the majority’s next immigration law error.
Third, while we have said that persecution can be by groups, we have never, as far as I know, extended that concept to the point of saying that a few disgruntled employees, who attacked the hated boss’s family, come within that group concept for asylum purposes. 3
Fourth, there is no evidence that governmental authorities in South Africa are “unable or unwilling” to protect the Thom-ases, and others, from crimes committed against them. See Singh v. INS, 94 F.Sd 1353, 1358-59 (9th Cir.1996); Arteaga v. INS, 836 F.2d 1227, 1231 (9th Cir.1988). It should be pellucid that no government, no police force, can possibly solve every crime. That is especially true of anonymous crimes of petty vandalism and of crimes where the victims cannot, or will not, help to identify the perpetrator. In fact, the Thomases actively asked that an investigation of the final alleged crime not be conducted. I recognize that the IJ used infelicitous language in reaching what, until today, was an ineluctable decision to deny relief, and that, at least, leads *1181 to a remand rather than to issuance of an outright decision that the Thomases are eligible for asylum and entitled to withholding. Still, the brazen facts are clear; but for the other mickle mistakes of immigration law in the majority opinion, there would be no reason whatsoever to remand this case to the BIA. 4
Finally, the record cannot support a determination that the Thomases could not protect themselves by moving to another city in South Africa, rather than by coming all the way to the United States. 5 Would those employees really leave their jobs and pursue the Thomases all over South Africa? There is no reason to think so. 6
In short, this case expands and extends general language in our cases almost beyond recognition in order to foster a grant of asylum to people who are in no proper sense true refugees. See 8 U.S.C. § 1101 (a)(42)(A). It makes a mockery of the serious concerns that lie behind the virtually universal desire to protect people who are truly being persecuted in their own countries. Really, on the theory of this case, hundreds of United States citizens are being subjected to persecution every year because of attacks by criminal groups and others. 7 If Congress had wished to extend immigration benefits to all those who have been injured by others and are displeased with the conditions in which they find themselves at home, it could have. In the meantime, because we are not porphyrogenites we should not be issuing our own ukases rather than abiding by the laws that Congress did adopt. In other words, the significant errors of immigration law in this case will be found in the majority opinion rather than in the decisions of the BIA or the IJ. 8
Thus, I must respectfully dissent.
.Indeed, our law has generally been quite the contrary. See Hernandez-Montiel v. INS, 225 F.3d 1084 , 1092 n. 4 (9th Cir.2000); Estrada-Posadas v. INS, 924 F.2d 916, 919 (9th Cir.1991); cf. Sangha v. INS, 103 F.3d 1482, 1490-91 (9th Cir.1997) (attack on son because of father's position was not political persecution). That said, I am aware of Lin v. Ashcroft, 356 F.3d 1027, 1039-41 , 2004 WL 112637 , No. 02-70662 (9th Cir. Jan. 26, 2004), which I disagree with. Lin went a long way toward saying that a family is a social group, but there, at least, the whole government family planning program was of a persecutory nature, and family planning is directed at families in a unique way.
. At least other family group cases have tended to involve situations where an attack on the family member has been for reasons that would constitute persecution if the primary "victim” had been attacked. See supra n. 1. But this case shows what the sometimes attractive arguments in those cases can lead to.
. Here, as far as the record shows, this dastardly and uncontrollable group consists of five (or maybe only four) individuals.
. There is no need to remand where that would be a futile act. See Valderrama-Fonseca v. INS, 116 F.3d 853, 857 (9th Cir.1997); Chinnock v. Turnage, 995 F.2d 889, 893-94 (9th Cir.1993); Tejeda-Mata v. INS, 626 F.2d 721, 726-27 (9th Cir.1980).
. I recognize that the IJ did not reach this point — he had no need to do so. I mention it because it is obvious from the record and serves to evidence the radical nature of the decision in this case.
. It is notable that the hated father-in-law had retired before the Thomases filed their petition for asylum — this further attenuates the possibility that the employees would seek out the Thomases.
. Consider, for example, the not unusual Southern California situation where there is an unsolved drive-by shooting by a street gang into the family home or automobile of a rival gang member, who has crossed the gang in some way. Despicable and deplorable? Of course! Grounds for asylum for family members? Of course not! But it seems that the majority would say "yes.”
. It is a pity that the majority has also fallen into floccinaucinihilipilification of my word choices.