Ninth Circuit Case: Tchoukhrova v. Gonzales, 404 F.3d 1181 (9th Cir. 2005)

The Ninth Circuit has denied the government’s petition for rehearing en banc in Tchoukhrova v. Gonzales, 404 F.3d 1181 (9th Cir. 2005). This was the case involving a disabled Russian child who suffered horrible abuse and separation from his mother, who was the principal asylum applicant. The panel decision held that harm to the child could be considered (“imputed”) in determining whether his mother had suffered persecution. A dissent from the denial of the petition for rehearing en banc by Judge Alex Kozinski, joined by several other judges, argued that the panel in effect had created “reverse derivative asylum,” that the Board had not considered the construction of the statute argued before the circuit, and that the panel decision was “nothing but a big end-run around [INS v. Ventura, 537 U.S. 12 (2002) (per curiam)].” The full dissent is at 2005 U.S. App. LEXIS. There are memos on the case, as well as a copy of an amicus brief (largely written by Matt Muller) at http://www.gbls.org/immigration/index.htm

KJ