In a decision that could affect scores of political asylum cases, the U.S. Court of Appeals for the 9th Circuit ruled Friday that a South African family could qualify for refugee status because it was persecuted in retaliation for a relative's abusive and racist treatment of his workers.
Appellate Judge Kim M. Wardlaw, writing for the majority, said a family unit can be "a protected social group" under asylum law. The decision by the San Francisco-based court means others can apply for asylum if they are oppressed because of kinship.
In the 7 to 4 ruling, the majority overruled Justice Department lawyers, who rejected the notion of a family unit as a protected category.
Harvard University law professor Deborah E. Anker, who filed a friend-of-the-court brief in the case, said the government's position represented a radical departure from 20 years of established law and would have "created chaos" if it had been accepted by the 9th Circuit. The 9th Circuit considers many asylum cases.
Friday's ruling came in a case lodged by Michele Thomas, a South African woman, her husband, David, and their children Tynel and Shaldon, who live in Ventura County, Calif. The Thomases came to the United States in 1998 "to avoid threats of physical violence and intimidation to which they were subjected because of abuses committed by David's father, 'Boss Ronnie,' who was a foreman at Strongshore Construction in Durban, South Africa," Wardlaw wrote. "Boss Ronnie was and is a racist who abused his black workers both physically and verbally," the judge added.
At a 1999 immigration hearing, Michele Thomas testified that an escalating series of attacks had rendered the family deeply afraid of what would happen if they remained in South Africa. In February 1996, the family dog was poisoned. The next month, their car was vandalized and the tires were slashed. When the Thomases told David's father about the incident, he told them he had just had a confrontation with his workers and that they should buy a gun. In 1997, four men, one wearing Strongshore overalls, tried to grab her daughter from her arms, Michele Thomas said.
An immigration judge did not question Michele Thomas's credibility but rejected the family's request for political asylum, saying she had failed to prove that her family's persecution fell under any of the five statutory grounds set out for refugee status. Under U.S. law, the attorney general may grant asylum to any immigrant who is a refugee, defined as a person who is unable to return to her home country "because of persecution, or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion."
The decision was upheld by the Board of Immigration Appeals.
Last year, however, the 9th Circuit overturned the immigration judge's opinion in a 2 to 1 decision. Friday's ruling stemmed from a rehearing by a larger panel of judges that the court granted at the Justice Department's request.