Michelle Thomas David George Thomas Tyneal Michelle Thomas Shaldon Waide Thomas v. John Ashcroft, Attorney General

359 F.3d 1169 Michelle THOMAS; David George Thomas; Tyneal Michelle Thomas; Shaldon Waide Thomas, Petitioners, v. John ASHCROFT, Attorney General, Respondent. No. 02-71656. United States Court of Appeals, Ninth Circuit. Argued and Submitted November 6, 2003 — Pasadena, California. Filed March 2, 2004. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Errol I. Horwitz and Edward M. Bialack, Woodland Hills, California, for the petitioners. Hillel R. Smith (argued) and Alison Marie Igoe (brief), Office of Immigration Litigation, Department of Justice, Washington, DC, for the respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Before Harry Pregerson, Ferdinand F. Fernandez, and Marsha S. Berzon, Circuit Judges. Opinion by Judge Pregerson; Dissent by Judge Fernandez. OPINION PREGERSON, Circuit Judge. 1 This matter comes to us from the Board of Immigration Appeals ("BIA"). The petitioners seek review of the BIA's denial of their application for asylum and withholding of deportation. For the reasons discussed below, we grant the petition and remand. FACTUAL AND PROCEDURAL HISTORY 2 Michelle Thomas, her husband David Thomas, and their two…

This matter comes to us from the Board of Immigration Appeals (“BIA”). The petitioners seek review of the BIA’s denial of their application for asylum and withholding of deportation. For the reasons discussed below, we grant the petition and remand.

FACTUAL AND PROCEDURAL HISTORY

Michelle Thomas, her husband David Thomas, and their two children, Shaldon Thomas and Tyneal Thomas, are citizens and natives of South Africa. They entered the United States as visitors at Los Ange-les, California on May 28,1997. Apparently within one year of their arrival, they filed requests for asylum pursuant to § 208 of the Immigration and Nationality Act, 8 U.S.C. § 1158 . Michelle Thomas is the principal asylum applicant; David, Shaldon, and Tyneal are derivative applicants.

At a hearing on December 2, 1998, the petitioners conceded their removability and requested asylum and withholding of removal. On May 12, 1999, the Immigration Judge (“13”) held an evidentiary hearing. Michelle Thomas was the only petitioner who testified at the hearing.

Michelle testified that the petitioners came to the United States to avoid threats of physical violence and intimidation they were subjected to…

dissenting.

I dissent from the grant of the petition on multiple grounds.

First, in this circuit there is little authority for the proposition that a family, as such, is a social group, 1 and the use of that concept here shows just how poor an idea it is to extend social group status in that fashion.

Second, I see no basis for deciding that every blow or crime perpetrated against a person is persecutory, without any real consideration of who did it and why. If a disgruntled employee slugs his boss for cheating him out of his wages, that is decidedly not persecution. But, if the employee takes a cowardly swipe at his boss’s daughter-in-law, that, according to the majority, is persecution. Of course, this is part and parcel of the anomaly wrought by the majority’s decision that a family is a social group and, therefore, that the members ipso facto have a free-standing claim to refugee status. 2 It is also an emanation from the concept that just any wrongdoer can be dubbed a persecutor, which leads to the majority’s next immigration law error.

Third, while we have said that persecution can be by groups, we have never, as far as I know, extended that concept to the point of saying…