Wednesday, November 13, 2013

Tagaga v. INS case brief

Tagaga v. INS case brief summary
228 F.3d 1030 (2000)

Petitioner, along with his family, sought review of a decision of the Board of Immigration Appeals, dismissing petitioner's appeal and affirming the immigration judge's denial of his requests for political asylum and withholding of deportation under 8 U.S.C.S. §§ 1158,1253(h), of the Immigration and Nationality Act, 8 U.S.C.S. § 1101 et seq.

Petitioner, a citizen of Fiji and a career military officer, applied for asylum. The court found that petitioner had a well-founded fear of future persecution if he were to return to Fiji, and that he also met the higher burden for withholding of deportation. Petitioner established a substantial likelihood that he would be tried for treason if he returned to Fiji. Petitioner had already served a six-month sentence imposed by the military regime, and fled Fiji because he feared that the regime would prosecute him for his refusal to participate in the regime's persecution of Indo-Fijians. Petitioner adhered to higher principles of law by refusing to arrest Indo-Fijians and warning others of planned arrests.


  • For this conduct, his punishment of six months confinement was not disproportionately lenient. To the contrary, it was excessive, because it was unlawful. 
  • The Board of Immigration Appeals erred in concluding that any court-martial that petitioner would face on his return to Fiji would be unrelated to a statutorily protected ground because a future court-martial of petitioner would be motivated, at least in part, by his refusal to participate in the persecution of Indo-Fijians.

The denial of the request for asylum and withholding of deportation was reversed and remanded, as petitioner demonstrated that it was more likely than not that he would be subject to persecution in the country to which he would be returned.

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