In a recent pivotal ruling by the Ninth Circuit, the case of Milly Kalulu, a Zambian woman seeking asylum in the United States due to persecution over her sexual orientation, was given a second chance. This decision underscores the nuanced complexities and challenges faced by individuals seeking refuge from LGBTQ+ discrimination and violence, and it highlights the critical role of meticulous legal scrutiny and advocacy in immigration law.
The heart of Kalulu's plea for asylum stems from harrowing experiences of persecution in Zambia, a country where the LGBTQ+ community faces significant challenges and dangers. Her bid for asylum was initially thwarted by the Board of Immigration Appeals (BIA), which, according to the Ninth Circuit, failed to adequately assess the veracity and relevance of the evidence she provided, including crucial testimonies and medical records documenting her past persecutions.
A crucial point of contention in the case was the BIA's dismissal of a declaration from a cousin's neighbor, who had intervened during an attack on Kalulu. Despite the declaration bearing a stamp from a Zambian commissioner, an immigration judge and subsequently the BIA deemed it insufficient to establish authenticity. The Ninth Circuit, however, found this reasoning flawed, emphasizing the illogicality of discounting the declaration based on the authenticity of the stamp, especially when other documents were dismissed for lacking such certification.
Moreover, the BIA's disregard for a medical record indicating emergency treatment for a stab wound Kalulu sustained during an attack was questioned by the Ninth Circuit. The court noted the BIA's conclusion, which contradicted the immigration judge's finding that the medical record was consistent with Kalulu's account, was made "without analysis or explanation."
Kalulu's journey to the United States, initially under the guise of attending a world scouting jamboree in West Virginia with her Zambian Girl Scout troop, took a drastic turn upon her visa cancellation. This was due to unauthorized employment as a babysitter in California and the receipt of public health benefits, which were not permitted under her tourist visa status. Facing deportation, Kalulu sought asylum and other forms of relief, detailing the severe persecution she faced in Zambia, including physical assaults and threats to her life due to her sexual orientation.
The court's decision to remand the case for a more thorough examination of Kalulu's evidence, including the three declarations and the medical document, signifies a vital acknowledgment of the potential validity of her claims for asylum or withholding of removal. This decision not only offers Kalulu a renewed opportunity to argue her case but also sets a precedent for the importance of considering all evidence in asylum claims, particularly those involving persecution based on sexual orientation.
Dissenting in part, U.S. Circuit Judge Gabriel Sanchez raised concerns about the BIA's assessment of Kalulu's credibility, particularly its skepticism regarding her sexual orientation due to her lack of participation in "LGBT activities" in the U.S. Sanchez advocated for a more comprehensive reevaluation of the case, not only to reassess the supporting evidence but also to reexamine the credibility determination in the absence of the identified errors.
This case exemplifies the intricate interplay between legal advocacy, evidence evaluation, and human rights in the realm of immigration law, especially for those fleeing persecution. For potential clients seeking refuge and legal assistance, it underscores the importance of experienced and compassionate legal representation that understands the unique challenges faced by LGBTQ+ individuals in immigration proceedings.
The ruling in Kalulu v. Garland serves as a beacon of hope and a reminder of the critical need for diligent legal representation in advocating for the rights and protection of vulnerable populations within the immigration system.
Reference:
Rae Ann Varona, "9th Circ. Orders 2nd Look At Zambian Woman's Asylum Bid," Law360, March 11, 2024.
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