United States Supreme Court in Demiraj v. Holder
Wednesday, August 10, 2011
Posted by: Taylor Stockdell
The NACC recently signed on to an amicus curiae brief (filed July 25) in support of a cert petition before the United States Supreme Court in Demiraj v. Holder. The brief was authored by Miguel Ruiz, counsel for amici curiae and an attorney from the firm Milbank, Tweed, Hadley & McCloy LLP in Los Angeles, CA.
The case is primarily an asylum case. The brief argues, in sum, that the Fifth Circuit improperly interpreted/applied federal law to exclude children from asylum protection where their persecution is in retaliation for the acts of a family member.
Summary of Case:
An Albanian national cooperated with U.S. prosecutors by agreeing to testify against an Albanian mobster wanted for human smuggling and sex trafficking. The mobster escaped back to Albania (now a fugitive of American justice) and instead of protecting the government witness, they deported him. When he returned to Albania, the mobster kidnapped him, tortured him, and shot him. The witness miraculously escaped, returned to the U.S., and is granted Withholding of Removal. The mobster goes after his family, sending his parents into hiding, and his brother to Greece. He captured the witness's nieces, trafficked them to Italy and Germany, tortured them, and forced them into sex slavery. They escaped to the U.S., and were granted asylum. None of those facts is in dispute. Later, the witness's wife and teenage son (who are most certainly targets of the mobster if they are removed to Albania) applied for asylum and were denied. Why? Because they were unable to demonstrate that the persecution from the mobster was "on account of” their family membership, "as such.” The Fifth Circuit, unlike the First, Fourth, Seventh, or Ninth Circuits, takes the view that the Immigration and Nationality Act only protects refugees fleeing persecution based on family membership where the persecutor seeks to destroy the entire family line or wants to attack the family identity directly. Every other circuit to have looked at the Act has interpreted it to protect precisely the persecution here—in response to the acts of a family member. Of course we believe that the INA protects family members under the circumstances and we hope the Court will correct this error.
To read the entire brief click here.