[Blog]

The Judge granted this case because the clients fear returning to Zimbabwe based on the abuse they, their family, and their friends have experienced and the pattern and practice of abuse against whites in Zimbabwe. Additionally, the government argued that the husband should be barred from asylum as a persecutor because of his involvement in the Rhodesian military during the Bush Wars. The Judge found that under 8th Circuit caselaw, his involvement lacked persecutory intent and was not sufficiently tied to the alleged persecution carried out by the Rhodesian military.

This issue of the persecutor bar was a surprise sprung on us by the attorney for the government. The government attorney showed up to the hearing with 100+ pages of “rebuttal” evidence, arguing that the husband had been a persecutor in his time with the Rhodesian military. Since we didn’t present any evidence on the matter, and it was not the subject of the asylum office’ referral notice, nor any other prior decisions or discussions, it seemed to me that it was not properly classified as “rebuttal” evidence, and should have been submitted in advance of the hearing as required. The Judge let it in, and we spent the next hour or so listening to detailed testimony on his involvement in the military. The rules for Immigration Court state that all evidence needs to be submitted 15 days before the hearing, unless they are rebuttal witnesses/evidence. In this case at least, that was simply not the case.

My client, almost 80 years old now, did an amazing job of remembering minute details of his military service under very detailed and potentially exhausting questioning by the government's attorney. At the next hearing, the government's attorney called an “expert” who seemed to me to be particularly biased, and who had done fairly limited research on the subject. Even after all this testimony (8 hours) and government expense and effort, this almost 80 year old man will get to remain in the United States, at least for now.

The government can, and I am assuming will, appeal the decision of the IJ, so this is not the last we will hear on this case. However, after fighting so hard, it feels really good to have this victory, even if it is only the beginning.

***Update*** The time for appeal has passed without an appeal being filed. I am very thankful that the government decided not to proceed with an appeal in this case. This post was altered after a few days, because I felt that some of my comments about the government's attorney's behavior were a bit out of line. I stand by its current content, and appreciate the government not continuing to prosecute this case.