Appellate Law

CA1: First holds that District Attorneys, even if their work is political, are not politically oppressed

By S. COTUS

Hernandez Cabana v. Mukasey, No. 07-1800.  I have to try and avoid the snark on this one.  Essentially, the First holds that a former Colombian Assistant District Attorney is not entitled to withholding of removal.  Under Matter of Fuentes, 19 I. & N. Dec. 658, 661 (BIA 1998), ?the BIA held that ?the dangers faced by policemen as a result of that status alone are not ones faced on account of race, religion, nationality, membership in a particular social group, or political opinion.??

At this point I don?t get it.  The grounds for withholding of removal require that someone would be threatened because of their religion, or political opinion or membership in a social group. 
But, the First says that ?In this case, Hernandez-Cabana chose to work as an assistant district attorney, a position that made her a highly visible embodiment of the power of Colombia.?  But wait, even if a District Attorney is a ?career? prosecutor, they still strive to uphold various political beliefs.  For example, in Columbia, as I understand it, the ideal economic system is an open question.  A prosecutor that, say, prosecutes a shoplifting is inherently taking a political position (i.e. that property doesn?t belong to the people, and that the state has the power to punish people take their disagreement beyond more than an academic level).  Therefore, someone a prosecutor that is threatened, in my view actually IS being threatened because of their beliefs.  Moreover, unless someone goes though the trouble of denouncing all the prosecutors (and most lawyers for that matter) stand for (which wouldn?t be good for client retention), I think it is a fair bet that once someone becomes a prosecutor, they will likely always be viewed as supporting the state.

The First then goes on to say that it might be a better case if she was threatened because of her status as a *former* prosecutor, since that is an ?immutable characteristic? whatever harassment she suffered stopped when she resigned.

Full post as published by Appellate Law and Practice on February 05, 2008 (boomark / email).