LAL V. INS: 9TH CIRCUIT REJECTS BIA'S REQUIREMENT THAT APPLICANTS FOR HUMANITARIAN EXCEPTION IN ASYLUM CASES MUST SHOW ONGOING DISABILITY
Immigrants' Rights Update, Vol. 15, No. 6, Oct. 8, 2001

A divided panel of the Ninth Circuit Court of Appeals has held that the Board of Immigration Appeals erred in requiring an asylum applicant to show that he has an ongoing disability in order to qualify for the humanitarian exception articulated in Matter of Chen. In reversing the BIA's denial of asylum, the court ruled that the BIA impermissibly departed from the plain language and clear intent of the regulation codifying the exception, as well as the agency's own case law and Ninth Circuit precedent.

The appeal arises from the asylum application of Jaswant Lal and his family. Lal is an Indo-Fijian who was a prominent member of the Fijian Labor Party, a nonviolent organization comprised of Hindu Fijians of Indian descent. Lal served as the branch secretary for the party and distributed posters, coordinated events in his region, and, on election day, provided transportation services. In 1987 Lal's party won a majority of seats in the Fijian Parliament. In 1988, however, the Fijian military staged a coup and subsequently persecuted Labor Party members.

After the coup, soldiers dragged Lal from his home at gunpoint, detained him for three days, and beat and tortured him. Lal was forced to endure unspeakable acts of torture: he was stripped of his clothes, urine was forced into his mouth, he was cut with knives and singed with burning cigarettes. He was also deprived of food and water. When he asked for a drink, officials gave him meat that he could not eat because of his religious beliefs. After Lal was released, soldiers returned to the Lals' home and, in the presence of Lal, sexually assaulted his wife. During the next four years, the government detained Lal at least three times. His house was set ablaze twice and placed under constant surveillance. The Lals' son was mocked and taunted and, because of his race and religion, was denied placement in a well-known school. On three occasions, the Lals were intercepted in their attempts to flee Fiji. The family ultimately escaped and applied for asylum in the U.S.

Under the regulations governing asylum, once the applicant establishes past persecution (on account of race, religion, nationality, membership in a particular social group, or political opinion), he or she is accorded a rebuttable presumption of a well-founded fear of future persecution. The Immigration and Naturalization Service may rebut the presumption by showing, through a preponderance of the evidence, that conditions in the applicant's country of origin "have changed to such an extent that the applicant no longer has a well-founded fear of being persecuted if he or she were to return."

The immigration judge found Lal credible and ruled that he had suffered past persecution. Finding that no evidence was presented to rebut Lal's fear of future persecution, the IJ granted asylum. The government appealed the grant to the BIA.

Relying solely on a State Dept. report on country conditions in Fiji, the BIA ruled that conditions there had sufficiently changed such that Lal no longer had a well-founded fear of future persecution. The BIA also held that, because Lal did not suffer from an ongoing disability, he did not qualify for the Matter of Chen humanitarian exception to the rule regarding changed country conditions.

Matter of Chen is a BIA decision involving a Chinese man who suffered extreme persecution during the Cultural Revolution in China. Although Chen no longer feared persecution from the Chinese government, the BIA carved out an exception based on general humanitarian principles and waived the requirement that an individual who has suffered past persecution must also demonstrate a well-founded fear of future persecution. That holding was later codified in asylum regulations.

In its analysis, the Ninth Circuit acknowledged that it must defer to the BIA's interpretation of its own rules. However, it also noted that such deference is due only where the agency's reading is consistent with the rule's plain language and intent and has practical consequences that are neither arbitrary nor unreasonable. Because its requirement of an ongoing disability treats torture victims differently based on an arbitrary distinction (whether "one has the good fortune to recover from [one's] injuries" or not), the BIA's approach is not due deference, the court held. Quoting the regulation itself, the court stated that a person who has been persecuted and seeks asylum qualifies for the humanitarian exception if he or she has "compelling reasons for being unwilling to return to his or her country . . . arising out of the severity of the past persecution." According to the BIA, the Ninth Circuit stated, Lal's experience of persecution was not sufficiently severe to qualify him for the exception "because he does not, for example, have a permanent limp or suffer a loss of hearing." Such an interpretation does not comport with the regulations, the court ruled.

The court buttressed its conclusion by relying on Matter of Chen. According to the court, cases resulting in regulations codifying a rule created by their holdings may be referred to for insight into the regulations' intent and history. The Ninth Circuit noted that Chen never refers to permanent disability as a requirement for the humanitarian exception. The court also examined previous BIA cases as well as Ninth Circuit precedent that had applied the Matter of Chen exception. Although ongoing mental or physical disability may be a factor in determining the severity of an applicant's past persecution, the court held, neither past BIA cases nor Ninth Circuit case law has treated lasting disability as a requirement for granting the exception.

The court was careful to distinguish the Lal case from INS v. Aguirre-Aguirre, 526 U.S. 415 (1999). In Aguirre-Aguirre, the Supreme Court admonished the Ninth Circuit for substituting its own interpretation of a statute for the BIA's. However, according to the lower court, the Supreme Court did not then proceed to blindly defer to the BIA. Rather, the Court carefully examined the statute in question and decided whether the BIA's approach was consistent with the plain language of the statute. Having followed the approach laid out by the High Court, the Ninth Circuit rejected the BIA's interpretation of the humanitarian exception rule in Lal.

The Ninth Circuit next addressed the BIA's decision on country conditions. The BIA had based its reversal of the IJ's grant of asylum on a State Dept. report indicating that widespread human rights abuses in Fiji had diminished. The Ninth Circuit held that assessing whether or not a particular applicant's fear is rebutted by changed country conditions requires "individualized analysis" focusing on "the specific harm suffered and the relationship of the particular information contained in the relevant country reports." As the BIA failed to undertake such an analysis, the court rejected the BIA's determination as insufficient. Accordingly, it reversed the BIA's decision on asylum and found Lal eligible for withholding of deportation.

Lal v. INS, 255 F.3d 998 (9th Cir. July 3, 2001).