Law School Case Brief
Grava v. INS - 205 F.3d 1177 (9th Cir. 2000)
Purely personal retribution is, of course, not persecution on account of political opinion. Thus, retaliation completely untethered to a governmental system does not afford a basis for asylum. However, many persecutors have mixed motives. In such instances, personal retaliation against a vocal political opponent does not render the opposition any less political, or the opponent any less deserving of asylum.
Dionesio Grava, a native and citizen of the Philippines, entered the United States in July 1991 as a non-immigrant visitor authorized to stay one year. In 1994, Grava requested asylum. In his application, Grava claimed that based on his political beliefs and activities as a policeman and customs officer he suffered and feared future persecution from all sides: Marcos Loyalists, Communist insurgents in the New People's Army and the Philippine military and police force, including his former supervisors. Grava also claimed he was subject to persecution as a whistleblower for his efforts in uncovering entrenched government corruption by his supervisors. The Immigration and Naturalization Service ("INS") denied his request for asylum because he had not proven persecution on account of a protected ground. Subsequently, the INS issued an order to show cause charging the deportable offense of remaining in the United States longer than permitted, in violation of 8 U.S.C.S. § 1251(a)(1)(C)(i), transferred to 8 U.S.C.S. § 1227(a)(1)(C)(i). Grava conceded deportability and requested political asylum and withholding of deportation. At the deportation hearing, the Immigration Judge denied the asylum application. On appeal, the Board of Immigration Appeals ("Board") criticized Grava's failure to testify at the hearing and stated that it could not consider his written application as evidence absent a stipulation that the oral testimony would be consistent with the written assertions. The Board rejected the asylum claim on that basis, but noted that even if it had considered the written application, it would reject it because it did not show that the persecution suffered was on account of political opinion. Instead, the Board concluded that it was a matter of personal retaliation. Grava filed a petiton for review.
Did the Board properly deny Grava's request for asylum?
The court ruled that the Board erred in holding that Grava's written application could not be considered absent a stipulation that his oral testimony would be consistent with his written application when Grava affirmed under oath that all of the material in the application was true. In addition, the court ruled that a whistleblower who exposed government corruption in the course of his official duties could claim asylum on account of persecution arising from those activities. The Board found that Grava failed to establish a nexus between his political opinion and his fear of persecution, but did so on erroneous legal premises. The court granted the petition for review and remanded to the Board for consideration of whether Grava had proven a well-founded fear of persecution arising from his whistleblowing activities.
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