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From Justice, with Baggage

By Annie Gausn | Jun. 2, 2006

Law Office Management

Jun. 2, 2006

From Justice, with Baggage

As a lawyer in the U.S. Justice Department, Jay C. Bybee made a name for himself by writing an infamous memo on torture. Now, as a Ninth Circuit Judge, what does he have to say about asylum?

by Peter Blumberg
      Four years after penning a memo on torture, Judge Jay Bybee wrestles with asylum cases.
      If the history books have anything to say on Jay C. Bybee's tenure as a Justice Department lawyer, it will be about a now-infamous torture memo he wrote in 2002. For physical harm to be considered torture, he reasoned then, it must be "equivalent" to the intensity of pain accompanying physical injury, such as organ failure, impairment of bodily function, or death. Widely believed to be at least part of the Bush administration's legal justification for the harsh treatment of suspected terrorists in detention, the memo proved such an embarrassment to the Justice Department that it was later repudiated.
      But since he was elevated to the Ninth Circuit Court of Appeals, Judge Bybee has had the opportunity to add to his legacy by ruling on more than 150 asylum cases. Here are some highlights:
      -In July 2004 Bybee voted to deny asylum to a man from India whose fear of persecution was based in part on his claim that his father "disappeared"; he suspected involvement by the Indian government. Bybee agreed with an immigration administrative judge who was wary of inconsistencies in the man's story, but Bybee was outvoted by two other judges, who granted asylum after finding the inconsistencies-confusion over the date of a family photo and whether a birth certificate was original-were not significant. (Singh v. Ashcroft, 103 Fed. Appx. 253.)
      -In September 2004 Bybee voted to set a high standard for asylum for a refugee from El Salvador who claimed that at the age of 13 he was kidnapped, raped, and beaten by a group of men for being gay. (The man also claimed that as a cross-dressing adult, his life would be in great jeopardy if he were sent back to his country.) Two other judges said immigration authorities were too quick to dismiss the man's application on the grounds that he didn't report the attack to local police when he was 13. They said it's enough that the man has a legitimate fear the government of El Salvador would not protect him from future persecution. Bybee agreed that the man should get another chance to seek asylum, but he insisted the applicant had to show that the El Salvadorian government had been aware of the rape but failed to take steps to protect him. (Reyes-Reyes v.. Ashcroft, 384 F. 3d 782.)
      -In March 2005 Bybee voted to deny asylum to a Peruvian known to have participated in torturing members of the left-wing guerrilla group the Shining Path. Bybee and two other judges took no issue with the man's claim that he feared reprisals, but the panel noted that asylum regulations are clear that the United States should not be a safe haven for torturers of any kind. (Zevallos-Diaz v. Gonzales, 125 Fed Appx. 139.)
      -In October 2005 Bybee voted in favor of asylum for a woman from Sri Lanka who claimed she was brutally raped by guerrilla fighters after she refused to let her son join the group. Although Bybee was outvoted by two other judges who reasoned that the rape wasn't linked to the woman's political opinions, Bybee argued that she was raped at least in part because of her ethnicity-a recognized basis of persecution. (Rodrigo v. Gonzales, 2005 U.S. App. LEXIS 23177.)
      -In December 2005 Bybee joined four other conservative judges in dissenting against asylum for a Russian child with cerebral palsy who, at birth, was dumped into a hospital waste-disposal bin, then institutionalized against his parents' wishes, denied medical care, and beaten and tortured until the family fled to California. Bybee reasoned that the parents shouldn't be piggybacking on the boy's plight just to live in America. (Tchoukhrova v. Gonzales, 430 F. 3d 1222.)
      -Later that month, Bybee again joined the court's conservative wing in dissenting against a ruling granting asylum to the parents of an Ethiopian girl on the grounds she probably would be forced to undergo female circumcision if the family returned to Ethiopia. The dissenters said it's wrong to allow parents who have themselves suffered no persecution to gain permanent residency in the United States based on a threat to their children. (Abebe v. Gonzales, 2005 U.S. App. LEXIS 29009.)

Annie Gausn

Daily Journal Staff Writer

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