Tchoukhrova citations show there is life in the case.

Sunday, July 18th, 2010
By: Jonathan MontagJ.D.

In the mid-2000’s, I was involved in a case, Tchoukhrova v. Gonzales, 404 F.3d 1181 (9th Cir. 2005), vacated and remanded by Gonzales v. Tchoukhrova, 549 U.S. 801, 127 S. Ct. 57, 166 L. Ed. 2d 7 (October 2, 2006). The case stood for three propositions. The first was a relatively unexciting issue for the general public regarding judicial review of an administrative decision. The court held that when the Board of Immigration Appeals (BIA) adopts the decision of the immigration judge, the court of appeals can review the decision in its entirety and not just the portions specifically addressed by the BIA. Mindful of its low excitement level, I will simply add that this is important because the Supreme Court has instructed the courts of appeal that before the courts of appeal rule on an issue, the BIA must first rule on it. When the BIA adopts the underlying decision and the immigration judge was comprehensive in the decision, the Court of Appeals believes it is then free to review all aspects of the decision instead of sending some aspects back to the BIA for its analysis. See, it is unexciting.

The second proposition dealt with whether disabled children constitute a social group. This is important because to be eligible for asylum, a person must be persecuted “on account of” his or her race, religion, nationality, political opinion, or social group. The statutes do not define social group and the BIA and courts of appeal grapple with its meaning in decisions nearly every week. In fact, the Ninth Circuit Court of Appeals handed down a decision this week, Perdomo v. Holder, addressing whether Guatemalan women constitute a social group because of the high incidence of femicide in Guatemala.

The third proposition related to imputation of hardship. In the case a boy who was severely physically disabled was persecuted in his homeland, Russia, where persecuting the handicapped was virtually the rule of the land. The court found that the persecution to the child could be imputed to the parent. The court wrote:

We further hold that Russian parents who provide care for their disabled children are properly included in the particular social group. Parents who resist the harms inflicted by the Russian government upon their children often express a political opinion while doing so, and thus may be entitled to asylum on that basis as well. But, in providing care for their disabled children, parents are doing something more fundamental than engaging in politics: They are acting out of love and devotion for their children. Helping care for one’s disabled child is an act basic to one’s humanity. Parents who provide such care act in a manner that is “so fundamental” to their identities that they “should not be required to change.” Likewise, just as their children’s disabilities are “immutable,” so is a parent’s relationship to a disabled child. Because the parents and their disabled child incur the harm as a unit, it is appropriate to combine family members into a single social group for purposes of asylum and withholding. Furthermore, including parents in the social group with their disabled children is consistent with the definition of a “particular social group” that we sometimes employ, namely, “a collection of people closely affiliated with each other, who are actuated by some common impulse or interest.” The family interest in preserving the rights and protecting the welfare of a disabled child welds the parents (or those in loco parentis) together with the disabled child in a manner that qualifies all of them as members of a social group for purposes of our immigration laws. (Citations omitted).

The government hated the decision. Several judges on the court of appeals disagreed with it. (I don’t know for sure if they hated it.) The objection was that what the case was really doing was granting a parent asylum derivatively through a child. Under the U.S. asylum laws, if a person is granted asylum, his or her spouse and children can also be granted asylum on the same claim. However, if a child is granted asylum, the parents cannot also be granted asylum on the same claim. The government brought the case to the Supreme Court which vacated the decision and remanded it to the Ninth Circuit for reconsideration on October 2, 2006. Ultimately, Ms. Tchoukhrova settled her case with the Department of Justice and she withdrew her case from the Ninth Circuit. There was also objection by some judges in the Ninth circuit to the first, unexciting, proposition.

One might think if the case was vacated, one would not see it in legal decisions anymore. Shepardize it and you get a red stop sign, which is never good. I, for one, have refrained from citing it and was even concerned that citing it was counterproductive as there is an implication that the propositions in the case, particularly the third proposition, that a parent of a disabled child can receive asylum in her own right, was rejected.

However, in the nearly four years since the Supreme Court vacated and remanded the case, it has been cited at least ten times, nine times in appellate decisions in the 1st, 3rd, 7th, and 9th circuits and once in a District Court decision. Four of the appellate decisions were published. In three of the published decisions the case was used to address the third proposition. In two of those cases, one in the third circuit  and one in the seventh circuit, they were used to support the proposition.

In the Ninth Circuit decisions, the case was used to support the third proposition in one very recent case.  Some decisions were uncritical of its second proposition.


From the appearance of Tchoukhrova in these decisions, one must conclude that the case is legitimate to cite for the first and second proposition, and that it has persuasive authority in several circuits, including the Ninth Circuit, for its most controversial proposition, that the persecution of one family member is relevant to the asylum claim of another family member even when the other family member cannot point to an independent fear of future persecution.  Posted July 18, 2010.



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