We received a good BIA decision today, granting the appeal we filed in the case of a member of the Batwa (or “pygmy”) tribe from Burundi.
Our client’s heartbreaking testimony about what she faced in Burundi before finally escaping to the United States was compelling, and the Immigration Judge found it to be credible. But instead of weighing the entire story in the aggregate to determine if what she had faced met the legal definition of “persecution,” the Immigration Judge focused on each particular act and said each one was not persecution.
The BIA reversed this finding and sent the case back to the Immigration Judge to reconsider his findings.
On appeal, we argued the Immigration Judge’s piece-by-piece analysis was akin to sitting in a bird cage, looking at each individual bar, and concluding that each individual bar is “not a bird cage.” You can’t tell if you’re sitting in a bird cage unless you look at all of the bars, as a whole.
Similarly, the BIA and most of the Circuit Courts require an Immigration Judge to look at the entire story of past persecution, especially when the asylum applicant claims a lifetime of discrimination and poor treatment.
Some persecution is easy to identify; for example: being locked in a dungeon and tortured. But when the “persecution” is 55 years of every day having rocks thrown at you, not being allowed to go to school or work, not being allowed to live in the town, to buy food at the store, or to ride public transportation, this too may be persecution, even if each particular rock may not be.
The Board said all the way back in 1966 that long and pervasive discrimination can amount to persecution. Matter of Salama, 11 I&N Dec. 536 (BIA 1966) (recognizing discrimination against Jews in Egypt as persecution).
Matter of Salama was one of the first BIA decisions construing the phrase “persecution on account of race, religion, or political opinion” in the Immigration and Nationality Act.
What today’s decision confirms is that the Board’s analysis in Salama, that “a government campaign of discrimination” may be persecution, remains true.
The full decision is below.