Herrera-Reyes v. A.G.—immigration—reversal—Krause

Today the Third Circuit granted a petition for review from the Board of Immigration Appeals, again. The introduction:

This case presents the question whether and under what circumstances threats of violence may contribute to a cumulative pattern of past persecution when not coupled with physical harm to the asylum-seeker or her family. We conclude the Immigration Judge and the Board of Immigration Appeals erred in holding that Petitioner Jeydi Herrera-Reyes— a Nicaraguan national who received death threats from members of the governing Sandinista Party after her home was burned down, a convoy in which she was traveling came under gunfire, and a political meeting she was organizing was robbed at gunpoint—had not suffered past  persecution within the meaning of the asylum statute. We will therefore grant the petition for review and vacate and remand to the BIA.

After reviewing the circuit’s precedent on when threats can establish persecution, the court concluded that the BIA misapplied it in two ways:

First, although they purported to consider the incidents “cumulatively,” in practice they evaluated the threats to Petitioner in isolation and without accounting for the broader campaign of intimidation, harassment, and violence substantiated by the record; second, they treated the absence of physical harm to Petitioner herself as fatal to her claim without acknowledging the significance of violence to Petitioner’s property and close associates.

(Footnote and record cite omitted). On the first point, the court explained that the BIA “paid lip service to our cumulative approach” but failed to actually give the meaningful consideration required.

Joining Krause were Ambro and Bibas. The case was decided without oral argument.