Mario Rajib Flores Molina put a great deal on the line to protest government corruption and the illiberal regime in his native Nicaragua, facing vandalism, beatings, and death threats. He eventually tried to reach safety in the United States, only for a federal immigration board to say his mistreatment didn't "rise to the level of past persecution" since the death threats weren't "especially menacing." It ordered his removal to Nicaragua. But last week, the United States Court of Appeals for the 9th Circuit said the board was wrong to deny him asylum.
In 2018, an opposition movement mobilized to protest President Daniel Ortega's regime and pension reforms that saw taxes go up and benefits go down. The Nicaraguan parliament passed a law in response that allowed the government to prosecute protestors as terrorists. In the crackdown that followed, state officials killed hundreds.
Flores Molina took to the streets of Estelí, Nicaragua, to join the demonstrations, where the police and paramilitary officers regularly shot and killed protesters. His repeated participation eventually put him in the crosshairs of government officials. They singled him out on social media and threatened him with imprisonment in a facility known for brutal torture of political dissidents.
He fled twice to what he thought were safer locations within Nicaragua, but government loyalists found him both times. During the second encounter, six members of the pro-Ortega Sandinista Youth beat him, warning, "This is what happens to the ones that want to be part of the coup. And at the next encounter, we're going to kill you." He knew he had to leave Nicaragua for good. Flores Molina journeyed to the U.S.-Mexico border, presented himself at a port of entry, and requested asylum.
Those eligible for asylum in the U.S. may qualify if "they have suffered persecution or fear that they will suffer persecution due to" political opinion, as Flores Molina did. An immigration judge found his testimony "consistent with the declaration he submitted in support of his application for relief" but held that he hadn't demonstrated past persecution or a well-founded fear of future persecution. This wasn't to say that Flores Molina hadn't been threatened or abused—simply that those experiences didn't qualify as persecution "for the purposes of asylum and withholding of removal."
He appealed, and in November 2019, the Board of Immigration Appeals (BIA) dealt his asylum case another blow, saying the threats he faced were "not the sort of 'extreme' or 'especially menacing' threats necessary to establish past persecution." It also pointed to the relatively small number of detained political activists in Nicaragua and the fact that "he was physically assaulted only once" to strike down Flores Molina's persecution claims.
After reviewing the BIA's decision, the 9th Circuit concluded last week that Flores Molina's past experiences did, in fact, constitute persecution. He was forced to flee home three times after being targeted for his political views, had credible experiences of death threats and violent confrontations with government-affiliated individuals, and was threatened in an escalating fashion "against the well-documented backdrop of the Ortega regime's violent crackdown on members of the political opposition," the 9th Circuit wrote.
"Any reasonable adjudicator would be compelled to hold that the repeated and specific death threats that Flores Molina experienced, amid the violence and menacing confrontations to which he was subjected, amount to persecution," the opinion reads. The BIA's denials of asylum and withholding of removal are now remanded for further consideration, and Flores Molina may ask the BIA to remand his case to an immigration judge in order to apply for legal status in the United States.
The 9th Circuit opinion pointed out several failures and oversights on the part of the BIA. "The Board cited the record selectively, relying on two news reports of the Ortega regime's release of 100 prisoners and its intention to release more, to support its assertion that Flores Molina's fear of future persecution was speculative," it explains. It also ignored documentation of poor detention conditions and abuse of political dissidents. "Moreover, the Board failed to discuss whether the repeated death threats and threats of violence Flores Molina faced were sufficient to inspire a well-founded fear of future persecution."
Flores Molina's initial hearing and appeal took place during the Trump administration. Former President Donald Trump expanded the BIA from 17 to 23 seats, with his administration selecting judges aligned with his immigration priorities. "Data from 2019 reveal that six immigration judges whom Attorney General William Barr elevated to serve as Board members had abysmal asylum grant rates," averaging just 2.4 percent, according to Gregory Chen, senior director of government relations for the American Immigration Lawyers Association.
Biden administration officials are now working to undo some of the harmful legal policies put in place by Trump-era attorneys general—less visible than controversial measures like the border wall and family separation, but nonetheless damaging to due process and punitive toward the people who seek asylum on American soil. Last June, Attorney General Merrick Garland scrapped rules that made it difficult for victims of domestic violence or gang violence, as well as family members of threatened individuals, to qualify for asylum.
Flores Molina's pursuit of asylum is receiving new life after a yearslong legal debate about the persecution he faced in Nicaragua. Despite that win, last week's opinion is a reminder that immigration courts are deeply shaped by the broader political climate and the discretion of the individuals who staff them.