Iacob Both v. Jefferson Sessions
705 F. App'x 609
| 9th Cir. | 2017Background
- The Both family (parents Iacob and Elisabeta and eight children) sought asylum and withholding of removal, claiming ethnically motivated persecution in Austria due to their Romanian background.
- In 2002, their 12-year-old son D.B. was brutally beaten by Mr. Krammer (a local fire chief), left permanently deaf in one ear, and continues to suffer medical/psychological effects.
- The family reported incidents to authorities multiple times: the town mayor dismissed them; police declined to arrest Krammer initially; prosecutors pursued only an out-of-court restitution that Krammer later refused to pay; a higher restitution was sought in 2005 but went unenforced.
- Police assistance after a car accident was conditioned on the Boths identifying the perpetrator; the officer refused to investigate once he learned the family was Romanian.
- Country reports indicated increasing discrimination by government officials, including police, against ethnic minorities in Austria.
- The BIA denied asylum and withholding; the Ninth Circuit reviewed legal conclusions de novo and factual findings for substantial evidence and granted the petition, remanding for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Boths established past persecution on account of Romanian background | The Boths argued they suffered serious, ethnically motivated attacks and threats, reported to authorities, who failed to protect them | BIA argued the government took steps (police response, restitution) showing willingness/ability to control persecutors | Court held past persecution established; record compels conclusion that government was unable/unwilling to control perpetrators |
| Whether governmental response rebutted presumption of future persecution after past persecution is shown | Boths argued official responses were inadequate (dismissive mayor, non-arrest, unenforced restitution, biased police) triggering presumption of future fear | BIA argued available remedies and some police action rebut inability/unwillingness | Court held BIA’s conclusion lacked substantial evidence and remanded for agency to decide if government rebuts the statutory presumption |
| Adequacy of punishment/remedy for assailant’s crimes | Boths argued monetary restitution and delayed/enforced fines were mere "slap on the wrist" insufficient to deter or redress severe harm | BIA suggested prosecution and restitution indicated remedial action | Court held monetary fines and unenforced restitution were not commensurate with the severity of the attack and supported unwillingness/inability finding |
| Role of reporting to police in evaluating state protection | Boths emphasized their reporting and the police’s inadequate/biased responses as evidence of lack of protection | BIA implicitly relied on some official action to deny claim | Court reiterated that where persecution is reported, courts examine police response; here responses were inadequate to show protection |
Key Cases Cited
- Bringas-Rodriguez v. Sessions, 850 F.3d 1051 (9th Cir. 2017) (standard of review and examining police response when persecution is reported)
- Navas v. INS, 217 F.3d 646 (9th Cir. 2000) (punishment that is a mere "slap on the wrist" may not show government control of persecutors)
- Singh v. INS, 94 F.3d 1353 (9th Cir. 1996) (severity of punishment required to demonstrate effective government protection)
- Baballah v. Ashcroft, 367 F.3d 1067 (9th Cir. 2004) (showing past persecution creates a presumption of well-founded fear of future persecution)
- INS v. Ventura, 537 U.S. 12 (2002) (agency must be given opportunity to determine whether government rebuts presumption of future persecution)