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Supporting Prosecution Of Perpetrators Of Genocide Can Be A "Political Opinion" Leading To Asylum, Rules An Immigration Judge In Arlington, Virginia

by David Cleveland, Esq.

IJ Paul Schmidt granted asylum to Mr. R, [not his real name] from Rwanda, who suffered harm because of his political opinion: that people responsible for genocide should be prosecuted and punished. This 14-page opinion, dated April 20, 2007, is available at

Mr. R testified that in April 1994, he witnessed four men, Mr. A, B, C, and D, kill his relatives with machetes. "During this attack, the men said they would kill Tutsis, whom they called 'cockroaches.'" In 1999, Mr. R joined the Genocide Survivors Students Association. In September 2005, Mr. R saw the four men, living in his hometown. He filed a criminal complaint against them; the men were arrested, and Mr. R testified against them in court. The men were taken into custody, found guilty, but were then released!

Soon thereafter, Mr. R received a threat via telephone. Next, bullets were fired at his house. Mr. R gave the IJ a letter from a friend, who wrote that Mr. R was "shot." Then, another phone threat. So, Mr. R decided to flee from his country. He went to the U.S. Embassy and told a lie to get a visa.

After arriving in the United States, R stated in Form I-589 that he had five children. In court, he stated that he had but one biological child. The other four "children" consisted of three cousins and one niece.

The Department of State reports that unidentified individuals killed approximately 15 witnesses to the genocide during the year 2005, that the police investigated at least some of the killings, and that there were "significantly fewer" killings during 2005, compared with 2004.

R filed Form I-589 after May 11, 2005; therefore, the REAL ID Act of 2005 applies to this case.


"I may grant an application solely on the basis of credible testimony, without further corroboration." [Page 2 of Opinion].

Consistency is important. In making credibility determinations, the IJ may consider inconsistencies and falsehoods, even if they do not go "to the heart of" the asylum claim.

Even in cases where respondent does not testify credibly, if there is "independent evidence" that establishes the claim, respondent could still be granted asylum. Camara v. Ashcroft, 378 F.3d 361 (4th Cir. 2004). The IJ may grant asylum when "the chance of future persecution is as low as 10 percent."


Mr. R listed three cousins and a niece as his children on the I-589. He stated that he "thought that he could petition for them, and now realizes that he will not be able to do so." [The IJ stated nothing further on this subject]

Mr. R' "misrepresentation" to the U.S. Embassy "does not undermine his credibility. Considering Respondent's stated desperation to leave Rwanda, Respondent's explanation of why he lied to obtain a tourist visa is consistent with his overall claim." [Page 10]

The statement of the friend that Mr. R was "shot" is "somewhat troubling. I accept Respondent's argument that the word 'shot' to a non-native English speaker could encompass 'shot at.'" [Page 10]

Mr. R did present corroboration, which is encouraged by S-M-J-, 21 I&N Dec. 722 (BIA 1997). His testimony was "consistent with his asylum application." [Page 9].

The IJ found that Mr. R had suffered past persecution on account of his political opinion. The threats and "destruction of the home" rise to the level of persecution, in the aggregate. [Mr. R apparently suffered no physical harm to his body].

"Although not argued by either party, I find that public opposition to genocide in Rwanda and supporting prosecution of the genocide's perpetrators is a political opinion. I find that Respondent was punished for his public efforts against the perpetrators..." [Page 12]


Mr. R was granted asylum even though he:
  • listed three cousins and a niece as his "children;"
  • lied to the U.S. Embassy to get a tourist visa;
  • suffered no physical harm to his body.
Another judge might summarize this case as follows: some criminals became angry because Respondent testified against them; this is a mere "personal" dispute. Respondent prevailed in this case, in part because he presented several letters of corroboration, including a certified letter from the criminal court. Furthermore, the 1994 genocide in Rwanda is an enormous, very public crime which continues to be litigated.

About The Author

David L. Cleveland a staff attorney at Catholic Charities of Washington, DC, is a former Chair of the AILA Asylum Committee.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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