Amended dissent in Japarkulova

http://www.ca6.uscourts.gov/opinions.pdf/10a0241a-06.pdf


Previous blog: http://6thcir.blogspot.com/2010/08/harmless-error-in-asylum-adjudication.html#comments

The court issued an amended opinion to include a forceful and spirited dissent by Judge Martin.  This case raises the interesting question of whether an erroneous determination that an alien did not suffer past persecution can ever be harmless.  A finding of past persecution does two things.  One, it shifts the burden to ICE to prove by a preponderance of evidence that the applicant lacks the presumed well-founded fear or clear probability of persecution.  Two, it makes the applicant eligible for humanitarian asylum in the absence of a well founded fear.  Humanitarian asylum can be granted based on the severity of the harm or the reasonable possibility that the alien will suffer "other serious harm."  These determinations have to be made by the agency in the first instance.