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Asylum Claims and Proof of Religious Persecution

Foreign nationals residing in the United States are permitted to seek asylum and apply for an order withholding removal if they can show a well-founded reasonable fear of political or religious persecution were they to return to their home country. Failing to show proof in asylum claims can result in denial of asylum. Such is the case of Natalya Lovna Chernykh, a citizen of Kazakhstan in which the United States Night Circuit Court of Appeals affirmed the Board of Immigration Appeals’ (BIA) refusal to reopen a petition for asylum or application for withholding of removal.

The petitioner, Natalya, claims that because she is an Evangelical Christian, she fears persecution if she were to return to Kazakhstan. However, she did not claim she was the victim of past persecution when she lived in her country. Rather she asserted that she would face harassment, disruption of religious services and possible fines or detention if returned to Kazakhstan. The Ninth Circuit cited prior case law in concluding that “Such harms do not rise to the level of persecution.” Furthermore, the appellate court found that many procedural deficiencies undermined her motion to have her original petition reopened. Many of the documents presented in the motion to reopen were available when she initially requested asylum. Neither she nor her attorney established why they could not have been produced then. Also, the newer submission on her behalf did not provide any new evidence her fear of persecution was objectively reasonable.

The court also noted that her counsel had failed to comply with certain deadlines applicable to such motions. It did withhold any judgment on the petitioner’s claim that her attorney rendered ineffective assistance of counsel. As with matters of criminal convictions, a petitioner for asylum may raise the claim their counsel did not provide effective assistance as the basis for getting a prior decision overturned. The Ninth Circuit remanded the case to the BIA for additional findings on that issue.

This case, Chernykh v. Holder, Nos. 11-70992 & 10-70310 (Ct of App., 9th Cir. 2014) underscores two important considerations in seeking asylum in the United States and obtaining a withholding of removal from the country. First, it reiterates the substantive need to accumulate and present all relevant information that can establish an objective basis for fearing persecution back home. Second, it validates the importance of retaining knowledgeable and competent counsel experienced in practicing immigration law.