NIJC - 10th Cir re Matter of T-Z-, rejects state-created danger Due Process theory for asylum

10th Cir re Matter of T-Z-, rejects state-created danger Due Process theory for asylum

Monday, 14 July 2008

Elias v. Mukasey (7/14/08)

BRORBY McConnell Anderson

In a Guatemalan asylum case, the 10th Cir applied In re T-Z-, 24 I. & N. Dec. 163 (BIA 2007), finding that it clarifies that the test in Kovac v. INS, 407 F.2d 102, 107 (9th Cir. 1969) ("deliberate imposition of substantial economic disadvantage"), applies where the state takes away something economic, whereas the Acosta test (so severe as to constitute "threat to life or freedom") applies where the Govt keeps someone poor. Found Acosta test appropriate, and that indigenous Guatemalans do not suffer so severely as to be in danger of death. (In passing, noted that 10th Cir treats ultimate question of whether facts show withholding as a question of fact, not question of law, cf. Sun Wen Chen v. Att’y Gen., 491 F.3d 100, 109-10 (3d Cir. 2007); Mirzoyan v. Gonzales, 457 F.3d 217, 220 (2d Cir. 2006) (per curiam)).

Petitioner also argued a state-created danger theory, that it would violate substantive due process to return someone to a country where the US Govt created danger (in this case, see atrocities in Guatemala in 1980s). 10th Cir rejected without analysis, simply joining the 1st and 3d circuits. Accord, Enwonwu v. Gonzales, 438 F.3d 22, 29-31 (1st Cir. 2006); Kamara v. Att’y Gen., 420 F.3d 202, 216-18 (3d Cir. 2005).

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