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On Sept. 18, 1992, two armed and masked members of the Movimiento Revolucionario Tupac Amaru stormed into Robert Domingo Reyes-Sanchez’s grocery store in Lima, Peru. They held him and his wife, Sonia, at gunpoint and demanded payment of a monthly $800 “war tax.” Then they looted the store. Reyes-Sanchez went to the local police, but no one was arrested. Then members of the leftist revolutionary group followed his son home from grade school and threatened his life. Reyes-Sanchez decided to take his wife and son and flee to Miami, where they applied for asylum in December 1993. They didn’t get it. But U.S. Immigration Judge Denise N. Slavin in Miami allowed the family to stay under the United Nations Convention Against Torture, which prohibits countries from involuntarily returning people who face a substantial risk of torture. Last week, however, the 11th U.S. Circuit Court of Appeals, on an appeal by Reyes-Sanchez, upheld an immigration appeals board’s decision to send him — but not his wife or son — back to Peru. The ruling highlights the legal challenge for asylum seekers from many countries who claim they faced threats from nongovernmental groups in their home countries. Under U.S. law, however, asylum is only granted when there is a documented threat to the person from that person’s government or when the government goes along with the private group or does nothing to counter the threat. Reyes-Sanchez’s fear that he would be tortured or killed upon return to Peru and that the local police could do nothing to stop it is just not enough to allow him to stay, Judge Gerald B. Tjoflat wrote for the 11th Circuit in Reyes-Sanchez v. Ashcroft. “In short, what he said was, simply, that the [Movimiento Revolucionario Tupac Amaru] would kill him if he returned to Peru,” Tjoflat said. “Without evidence as to where he would settle in Peru and the business or occupation he would pursue there, a finding that the police would acquiesce in whatever harm might befall him would be based on nothing more than pure speculation.” “It’s a horrible ruling,” said Eduardo Canal, a solo practitioner in Coral Gables, Fla., who concentrates on immigration law and represented Reyes-Sanchez on appeal. “Basically what it says is that governments have to participate in the torture. And that’s not what the law says.” According to Canal, the law says that the government had to acquiesce in the torture for the asylum seeker to win the case. Reyes-Sanchez hasn’t yet decided whether he’ll ask for a rehearing. Dan Stein, executive director of the Federation for American Immigration Reform in Washington, D.C., said the 11th Circuit simply applied the law. Immigration advocates, on the other hand, blasted the ruling but said it was typical of the 11th Circuit, which they say is generally unsympathetic to asylum claims. “The 11th Circuit is the most hostile court in the United States toward noncitizens,” said Ira Kurzban, a Miami immigration attorney whose book, “Kurzban’s Immigration Law Source Book,” is soon to appear in its ninth edition. “The members of the 11th Circuit make the most outrageous decisions and show extraordinary deference to the government’s point of view in these cases.” Cheryl Little, executive director of the Florida Immigrant Advocacy Center in Miami, said there is no way Reyes-Sanchez could definitively prove that he would be harmed by the revolutionary group if he returned to Peru. That’s why judges in asylum and U.N. Convention Against Torture cases are given wide discretion. But judges on the 11th Circuit don’t seem to understand immigrants’ legitimate fears, she lamented. Nina Pruneda, spokeswoman for U.S. Immigration and Customs Enforcement, a division of the Department of Homeland Security, did not comment on the ruling against Reyes-Sanchez. But she said the department “is continuing to review the cases of his family members, which were separated from his.” In 2002, the most recent year for which statistics are available, the federal government reported in an annual report that 11,398 people applied for asylum in Florida and 777 cases were reopened. Of the cases decided that year, 34 percent, or 5,504 individuals, were granted asylum in 2002. Nationally that year, nearly 60,000 people applied for asylum. APPEALS BOARD CRITICIZED In 1991, Reyes-Sanchez started a supermarket in Lima, his hometown. As soon he opened the doors, members of the Movimiento Revolucionario Tupac Amaru began collecting a $400 “war tax” from him every two weeks. The guerillas called him at home or at work to tell him where to take the payments. They threatened to hurt him and his family if he failed to deliver the money. After more than a year of making payments, Reyes-Sanchez got angry, according the 11th Circuit opinion, and told the guerillas that he would no longer pay the tax. That’s when two members showed up at his store and robbed him. Local police took fingerprints and statements but made no arrests. In March 1993, Reyes-Sanchez and his family settled in south Miami-Dade County after entering the country on temporary, nonimmigrant visas. After overstaying those visas, the family applied for asylum in December 1993. Four years later, the Department of Immigration and Naturalization Services notified them that their requests were denied. That’s when Judge Slavin issued an order to show cause why they should not be deported. She held an evidentiary hearing at which only Reyes-Sanchez testified to the abuse and the failure of the Peruvian government to stop it. Slavin again denied his request for asylum. But in August 1999, she allowed the family to stay under the U.N. Convention Against Torture of 1984, which was ratified by the U.S. Senate in 1998. Slavin accepted Reyes-Sanchez’s claim that he would be tortured upon return to Peru. The convention prohibits countries from taking action to “expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture.” The federal government appealed in Reyes-Sanchez’s case, though not in the cases of his wife or son. Government lawyers argued that Reyes-Sanchez did not state a claim under the U.N. convention. Canal said the government filed for permission to belatedly appeal in the cases of the wife and son, but that the immigration appeals board denied the request. In August 2002, a three-member panel of the Board of Immigration Appeals, headquartered in Falls Church, Va., reversed Slavin’s order without hearing oral argument. That meant Reyes-Sanchez would have to return to Peru while his wife and son could stay. The Board of Immigration Appeals is part of the Executive Office of Immigration Review, which itself is a division of the U.S. Department of Justice. Over the past three years, the Bush administration has implemented a controversial set of changes in the board, which critics say were intended to make it much more difficult for immigrants to win appeals. The changes included expanding the use of solo appellate judges in place of three-judge panels, eliminating de novo appellate reviews, imposing stricter time limits for processing appeals, and reducing the board from 23 to 11 members. In January of this year, 7th Circuit Judge Richard A. Posner, an influential conservative, rebuked the Board of Immigration Appeals and immigration judges in a sharply worded opinion overturning the denials of two requests for asylum. He cited what he saw as “a pattern of serious misapplications by the board and the immigration judges of elementary principles of adjudication.” GANG OF THUGS Reyes-Sanchez appealed the board’s adverse ruling to the 11th Circuit, which hears appeals from Board of Immigration Appeals decisions. He argued that his government’s failure to protect him or arrest anyone in his case constituted government acquiescence in torture. That term is not defined in the U.N. convention or by the subsequent congressional act. Last week, in a 10-page opinion, a three-judge panel of the 11th Circuit unanimously affirmed the board’s decision to send him back to Peru. The 11th Circuit said that the Lima police investigation of the alleged terrorism Reyes-Sanchez and his family suffered is enough to show it did not acquiesce. “That the police did not catch the culprits does not mean that they acquiesced in the harm,” Judge Tjoflat wrote. “Indeed, were we to follow this reasoning, a person could obtain [UN Convention Against Torture] relief merely because he was attacked by a gang of neighborhood thugs whom the police were unable to apprehend. The CAT does not extend so far.” In the ruling, the 11th Circuit used a standard for asylum seekers to prove government acquiescence that’s more stringent than the one set out in the 9th Circuit’s 2003 ruling in Zheng v. Ashcroft. That was the first appellate case to elaborate on the meaning of acquiescence. In Zheng, the California-based 9th Circuit held that a person who suffered torture at the hands of a terrorist group in his or her country need not prove that the government willfully ignored or turned a blind eye to the torture. The person’s government only has to be aware of it.

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