CLAIM OF HARM BY WITCHES AND WIZARD
XRAYING THE CASE OF: R. EDI V. SESSIONS; NO 16-3421 (8TH Cir, 2017)
THE UNITED STATES COURT OF APPEAL FOR THE 8TH, CIRCUIT FINALLY LAID TO REST THE ASYLUM CLAIM BASED ON HARM BY SUPER NATURAL BEINGS.
Nigerian native and citizen R. EDI was admitted to the United States in December 2006 on condition that he attends college. In September 2010, R. E. petitioned for asylum withholding of removal, and relief under the Convention Against Torture and dropped out of college a few months later. While R. EDI’s petition was pending, the Department of Homeland Security charged him with being removable because he was no longer a student in accordance with 8 U.S.C. § 1227 (a)(1)(C)(i). R. EDI. conceded that he was removable but argued that he was entitled to the relief sought in his petition.
At his hearing, R. EDI testified that he was born in Nigeria in 1973, but his family later moved to India. When he was 16 years old, he saw a wizard kill his brother; the devil had commissioned the wizard to kill his father to transform R. EDI into a false prophet. After his father’s death, his family moved back to Nigeria, eventually settling in Lagos. There, R. EDI’s mother purchased rental property where the family lived along with tenants, some of whom became operatives for the devil. One tenant inserted a worm inside R. EDI while he slept; another tenant raised a furor by accusing R. EDI’s mother of witchcraft and R. EDI of wizardry after the tenant’s mother had died. Around this time, R. EDI began having visions and prophesying, and, when his prophecies did not come true; some in the community accused him of being a false prophet. At one point R. EDI was having a vision while cutting glass, and a spirit threw glass into his eye.
In 2001, an imbroglio erupted between EDI’s family and a tenant named Akpo. The family suspected Akpo of leaving stolen cars at the rental property, so they called police. When several officers arrived, Akpo prevented their entry by padlocking a gate; he proceeded to beat R. EDI and his mother with a tire iron. A few days later, another tenant assaulted R. EDI, his mother and his sister in the presence of police. The family was eventually able to evict the troublesome tenants around 2002 or 2003.
EDI also explained that the devil had placed demons inside him, causing various medical ailments. One particularly troublesome ailment was an offensive odor that marked R. EDI as demonic, leading the community to ostracize him. He underwent four exorcisms in Nigeria, but to no avail. He sought help from various medical and religious personnel, but nothing helped. R. EDI fears returning to Nigeria because people will again associate his smell with demonic forces and ostracize, harm or torture him. He maintains that belief in wizardry in Nigeria is common but not accepted.
The IJ (Immigration Judge) and the BIA (Board of Immigration Appeal) concluded that his fear was not objectively reasonable. According to them, the harms that R. EDI. describes were not persecution because they were not inflicted by the Government or private parties that the Government was not able to control.
In its judgment, the 8th Circuit court held that harm inflicted by supernatural forces is not “persecution’
The court further stated thus, “As for harm caused by the devil’ s human agents, we think that R. EDI is just as susceptible to such harm here (in the U.S.) as in Nigeria because, as the IJ observed, supernatural beings and their agents ‘are theoretically capable of targeting an Asylum applicant wherever he goes, including the United States.
Based on the above, it is very clear that the applicant misunderstood the Asylum law in the United States hence the decision he received from the Courts.
To file an Affirmative Asylum application, you must exercise due diligence and do the following.
1. Are you a Refugee as defined by the Immigration and Nationality Act (INA)
2. Were you persecuted in your country of residence, (if you are stateless, the last country of your habitual residence)?
3. Does the harm you suffered fall within the statutorily protected grounds? Viz. RACE; RELIGION; PARTICULAR SOCIAL GROUP (PSG); NATIONLITY; AND POLITICAL OPINION?
4. Did the Government or private party whom the Government is unable to control perpetrate the said harm?
5. Is there a place in your country where you can safely relocate?
6. Are you afraid of future persecution if you are returned to your country?
Affirmative vs. Defensive Asylum
The asylum status enables several categories of people to seek protection in the United States. Usually, this possibility is extended to individuals who have been persecuted because of their ethnicity, political views, nationality, race, or religion.
In the United States, there are two general opportunities for asylum qualification – affirmative asylum and defensive asylum. Affirmative asylum seekers are yet to be deported from the country. While in the case of defensive asylum application, these individuals will have to defend themselves from deportation in immigration court at the U.S. Executive Office of Immigration.
The type of asylum you apply for in the United States is dependent on timing. This means you don’t have the freedom to opt for one option or the other.
Affirmative Asylum Overview
Affirmative asylum processing involves your physical presence in the United States. Individuals are free to apply regardless of the manner in which they got to the country or their current immigration status.
There’s an application deadline for affirmative asylum seekers. You have to apply within one year of your latest U.S. arrival, unless you can prove extraordinary/ Changed circumstances. To apply for affirmative asylum, you’ll have to submit Form I-589, Application for Asylum and for Withholding of Removal.
According to the United States Citizen and Immigration Services (USCIS), affirmative asylum seekers are rarely detained. While the application is pending, you have the freedom to live in the United States. If your application is found ineligible, you can still remain in the U.S. while the application is pending with an immigration judge.
Defensive Asylum Overview
In the case of defensive asylum, the application occurs whenever you request asylum to prevent removal from the United States. The removal processing will already need to be in effect in order for the application to switch from affirmative to defensive asylum.
Defensive asylum processing occurs in one of two ways. One of the ways to get to this kind of procedure is to be referred to a judge after affirmative asylum ineligibility has been established. Alternatively, the application is possible whenever people are placed in removal proceedings because they were either caught at a U.S. point of entry without the required documents or they were caught by the U.S. Customs and Border Protection without proper documents and were placed in the expedited removal process.
During the court proceedings, the judge will hear from the defensive asylum applicant and the attorney representing the US government. If the applicant is eligible for defensive asylum, the judge will rule in his favor. Both parties have the right to appeal the decision of the immigration judge. If the asylum petition is denied, you will have 30 days to appeal. If you do not, immediate deportation may follow.
Establishing Fear of Persecution
To apply for United States asylum, a resident of another country will have to establish their fear of persecution upon returning home. This goal can be accomplished in several ways. If you’re attempting to get US asylum, you may want to contact an experienced immigration attorney. Your lawyer will advise you about the best ways in which you could demonstrate the possible consequences of returning home.
People who have suffered persecution in the past should make that clear. Depending on the specific information it contains, a personal testimony could be compelling enough to have the asylum granted. Additional evidence like newspaper articles and media reports, photos, video clips, books, and witness affidavits can also be utilized to paint a complete picture.
Keep in mind that in order to meet the asylum requirements in the United States, a person does not need to have fear of torture or imprisonment. Persecution is legally defined as the identification of harm or suffering inflicted by a government on a person that the said government is either unwilling or unable to control or overcome a specific trait of the individual (religion, political opinions, ethnicity, etc.).
Under both national laws and international treaties, the United States government has the obligation to face asylum seekers facing persecution in their own country. At the same time, however, the credibility of such claims will have to be confirmed first.
Difference Between Asylee and Refugee
There is a difference between asylum seekers (asylees) and refugees. The term refugee refers to a person who has no nationality outside their country of residence but is unwilling or incapable of returning home. The difference isn’t that big, but the procedures for applying for asylum and refugee status are different.
Those who wish to get refugee status will apply with an overseas USCIS office before entering the United States. Asylum seekers apply when they’re already in the country. Upon approval, both asylees and refugees have the right to remain in the U.S. indefinitely or at least until the conditions in their home country go back to normal.
Don’t wait until you are in an emergency situation before you contact an experienced Immigration Attorney.
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