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Herrera-Reyes v. AG of the United States

United States Court of Appeals for the Third Circuit

November 13, 2019, Submitted Under Third Circuit L.A.R. 34.1(a); February 28, 2020, Opinion Filed

No. 19-2255

Opinion

 [*104]  KRAUSE, Circuit Judge.

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.

I. Factual and Procedural Background

Petitioner claimed she experienced [**2]  past persecution as an active opponent of the Nicaraguan government. As reflected in the record and before the IJ, that government has a "de facto concentration of power in a single party"—the Sandinistas—"with an authoritarian executive branch exercising significant control over the legislative, judicial, and electoral functions." A.R. 55 (quoting a U.S. Department of State Human Rights Report for Nicaragua). Sandinista government officials and security personnel, with widespread impunity, have imposed "arbitrary arrest and detention of suspects; . . . multiple obstacles to freedom of speech and the press, including government intimidation; . . . and partisan restrictions on freedom of peaceful assembly." Id. (same). In recent years, according to a report by human rights observers, "police generally protected or otherwise gave preferential treatment to progovernment [Sandinista] demonstrations while disrupting or denying registration for opposition groups" and "did not protect opposition protesters when progovernment supporters harassed or attacked them." A.R. 56.

Petitioner's experience, according to testimony the IJ deemed credible, was a case in point. Before she fled to the United [**3]  States, Petitioner was the leader and president of an opposition group for Liberal Party youth and was "deeply involved" in local politics. A.R. 183. As a result, she was subjected to a pattern of threatening words and conduct that she claimed rose to the level of persecution.

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952 F.3d 101 *; 2020 U.S. App. LEXIS 6149 **

JEYDI L. HERRERA-REYES, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES of AMERICA, Respondent

Prior History:  [**1] On Petition for Review of a Decision of the Board of Immigration Appeals. (BIA No. A216-587-697). Immigration Judge: John B. Carle.

CORE TERMS

persecution, menacing, threats, concrete, mistreatment, verbal, violence, cumulative, imminent, corroborated, severe, physical harm, substantiated, experiences, cases, kill, death threat, gunpoint, affront, harmed, murder, cumulative effect, physical violence, harassment, unabridged, convoy, experienced, compatriot, trajectory, arrested

Immigration Law, Judicial Proceedings, Jurisdiction, Judicial Review, Scope of Review, Standards of Review, De Novo Standard of Review, Substantial Evidence, Asylum, Refugees & Related Relief, Refugee Status, Eligibility for Refugee Status, Asylum, Refugees & Related Relief, Asylum, Eligibility for Asylum