Consequences of “Whistle Blowing” Can Be the Basis of a Political Asylum Claim
May 5, 2000

The U.S. Court of Appeals for the 9th Circuit, which has jurisdiction over cases filed in California – among other west coast states, generally can be expected to issue decisions providing aliens with the most protection in the face of imminent deportation by the U.S. Immigration & Naturalization Service. Consistent with that trend, a Filipino asylum seeker, whose claim was based on his fear of persecution back home as a result of his “whistleblowing” and anti-corruption activities as a law enforcement official in the Philippines, was recently granted a reprieve by the 9th Circuit. With this decision, the Court of Appeals paved the way toward the applicant receiving lawful permanent residence in the U.S.

Prior to entering the U.S. as a tourist in 1991, the applicant worked as a policeman and customs officer in the Philippines. During his tenure in these positions, he uncovered and spoke out against corruption at many levels of government. As a result, his corrupt superiors, who ultimately maintained their authority, transferred him to different positions in an effort to minimize his impact. Not unexpectedly, according to the applicant, his bold stance brought on death threats from several directions, including Marcos loyalists, the New Peoples Army, and even the Philippine military and police force.

After obtaining a visa and successfully escaping to the U.S., our former government official applied for asylum. His case was denied by the INS at the initial stage, and the denial was subsequently upheld by the Immigration Judge in deportation proceedings and more recently, by the Board of Immigration Appeals (BIA). The BIA ruled against the applicant because a) when appearing before the Immigration Judge, he chose not to testify and instead rested on the contents of his written application (an option offered to him by the Immigration Judge), and b) even if her were to testify, the threats that are the basis of his fear of returning to Philippines do not adequately establish a case for political persecution as required under the law.

While I find it generally inadvisable for an asylum applicant who is before the Immigration Judge to opt not to testify and merely swear to the facts as set forth in their application, such a choice is entirely acceptable under INS regulations. And pursuant to the clear language of the applicable regulations, the 9th Circuit found improper and in violation of the law, the BIA ruling summarily rejecting his claim due to his failure to testify.

As to the substance of the applicant’s claim of persecution, the 9th Circuit similarly rejected earlier findings and concluded that the applicant’s “whistleblowing” acts while in the government do indeed constitute the exercise of political opinion and therefore meet the legal requirements under asylum law. More specifically, the court concluded that whistleblowing will not always add up to the exercise of political opinion, however, “where the whistle blows against corrupt government officials, it may constitute political activity sufficient to form the basis of persecution on account of political opinion”. In support of its conclusion, the court found the “alleged corruption (to be) inextricably intertwined with governmental operation (and) the exposure and prosecution of such an abuse of public trust is necessarily political.”

Clearly the 9th Circuit went out its way not to prejudge the filing or take anything for granted, as is the general tendency of courts reviewing cases of asylum seekers fleeing a democratic nation with significant diplomatic ties to the U.S.

For more details on this interesting case, see the federal appeals court’s opinion published at 205 F.3d 1177 (9th Cir. 2000).

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