Holy Family Denied Asylum






IN THE MATTER OF                                      )                              IN REMOVAL PROCEEDINGS

Joseph Davidson                                              )                              A217 001 001

Mary Davidson                                                 )                              A217 001 002

Jesus Davidson                                                 )                              A217 001 003


CHARGE:                              Section 237(a)(1)(C)(1) of the Immigration and Nationality Act

APPLICATION:                   Asylum, Withholding of Removal, and Withholding of Removal under the United  Nations Convention Against Torture

Written Decision of the Immigration Judge

The respondents are Palestinian Jews, who have come to the United States from territory of shared Roman/Herodian sovereignty. Their identity documents (from a Roman census taken about one years ago) are in order. They were detained while crossing into the United States at Nogales, Arizona, on December 25, and have been in family detention since that time. They have applied for asylum, withholding of removal, or protection under the Convention Against Torture (CAT). Because they cannot establish a nexus to one of the five protected grounds for asylum or withholding and because they have not shown torture to be more likely than not if they are returned to their place of origin, their applications are denied and the Court will order them removed to the Herodian Kingdom of Judah.

The adult Respondents testified in a manner consistent with each other and with their declarations of credible fear. While the Court finds that they do subjectively fear returning to their homeland, there are significant issues of credibility to their account. More importantly, even giving them the benefit of belief, their expectations of persecution directed against their infant child do not correspond to any of the grounds for which refugee status may be granted.

The Respondents assert that they fear returning to Judah because the Edomite King of that region, Herod, seeks to kill their child, Jesus. The State Department Country Conditions Report provides some support for this claim, as Herod has been known to execute not only the remnants of the Hasmonean kingdom that preceded him, but even members of his own family out of fears of a palace coup. The trial and execution of his Hasmonean wife, Mariamne, and the execution of their sons, Alexander and Aristobulus IV, are well documented, as are numerous other ruthless acts directed against those whom he supposed to be threats to his throne.

However, the adult Respondents’ fear that their son is under such a threat is difficult to credit. First, the female Respondent testified that this child was born when she was still a virgin. Granted, the child appears to have been conceived before the parents were married, but there are many more credible explanations for that fact than parthenogenesis. This first implausible claim, although it does not go to the heart of her case for asylum, bears negatively on her credibility.

Moreover, both parents assert that angelic visitors had (prior to and at the time of the child’s birth) announced that this child is the son of God. The respondents could not provide any corroboration for these tales, except for poorly authenticated statements from relatives still in Judah, one Elizabeth and her husband Zachariah. Those letters also feature angelic visions and other miraculous accounts which the Court must view with skepticism. There are also reports that the child was hailed as the Messiah (a long-awaited religious deliverer of the Jews) by two old people in the Temple at his circumcision. However, the Respondents admitted that those old people have now died and no written record was kept of their statements, except that the female Respondent has “pondered them in my heart.”

Respondents further assert that King Herod was informed of the child’s birth (and, implicitly, threat to his throne) not by any official investigation, but through a report by mysterious foreign astrologers who visited the King’s court near the time of the child’s birth. In connection with this, Respondents also point to several passages of Hebrew sacred writings which they say indicate the place and nature of the Messiah’s birth, and they say these indications were used by Herod to target their son for execution.

Respondents’ counsel has supplied the Court with ample documentary evidence from learned journals and other sources to show that even the nobility in these Middle Eastern countries do indeed believe and act based upon ancient prophesies and mystical interpretations of the movements of celestial objects. So it is believable that Herod and these astrologers thought that a new king was born at the time and place where the infant Respondent was. And the evidence in the record is sufficient to support the idea that Herod is sufficiently paranoid and ruthless to order the slaughter of innocent children if he thought a rival to his throne might be found among them.

For these reasons, the Court is willing to entertain the possibility that this family could anticipate a criminal act against the minor Respondent by King Herod.

Respondents claim that they were able to escape this threat – again, straining credulity – because they were warned by God in a dream to flee from the area of Bethlehem before the persecution began. Since they left before the alleged persecution even began, the Court strongly suspects that their actual motivation for migrating was economic and unrelated to the later-arising alleged threat.

In any case, asylum in the United States is not granted merely upon a showing that a threat of harm exists; the threatened persecution must be “on account of race, religion, nationality, political opinion, or membership of a particular social group.” In this respect, Respondents’ claim fails to justify the grant of asylum or withholding of removal.

The minor Respondent, being of tender years, clearly has no political opinions. His parents have acknowledged no affiliation with or adherence to any political party or movement which opposes either the Herodian dynasty or the Roman occupation of Judah. Consequently, no political opinion basis for persecution can exist. Since King Herod and the Respondent family are related ethnically, and because there is no evidence that the King has targeted all Jews for persecution, there is no racial or national basis for the alleged threat.

Respondents argue that religion is one basis for the threat they have experienced. But they have not alleged or shown that they follow any religion or sect of their religion to which Herod has expressed hostility. Respondents are ordinary Jews, observant but unremarkable. They are not part of any unusual sect of that religion; their belief in a coming Messiah is also common to most Jews of the region. There is no evidence that Herod himself has departed from that common belief or is attempting to exterminate it.

These parents believe that their son is the Messiah. It is natural for parents to entertain high aspirations for their offspring. However, such a belief does not a religion make. The family remains, for purposes of asylum analysis, simply observant Jews, and the record contains no evidence that the religion of Judaism suffers persecution under Herod, who follows that religion and is himself associated with the sect of the Sadducees. Hence, there is no religious basis for the alleged threat.

Similarly, Respondents have not shown that they belong to a “particular social group” which is under this threat. They assert that King Herod ordered the execution of all male children in the region of Bethlehem (the child Respondent’s birthplace) aged two or younger. Respondents have not provided documentary corroboration for this order, which might indeed have involved a fairly small number of potential victims, since Bethlehem and environs are rather sparsely populated. Although the alleged danger is possible, given the evidence of Herod’s capricious and jealous nature, the Court does not find sufficient evidence to establish it as “more likely than not.”

Even if this massacre was actually ordered and carried out by Herod, Respondents have not shown that the minor Respondent is within a “particular social group” threatened by King Herod. To show that such a group exists, a claimant must prove that the group is identified by one or more immutable characteristics, that it is socially distinct, and that it is particular. In other words, such a group must be unchangeable, socially recognized, and well-defined within the society.

The group to which the minor Respondent claims membership, “Hebrew boys two years old or younger in the vicinity of Bethlehem,” does not meet these criteria. First, all members of this group age out after only two years. The court notes that the minor Respondent here will soon do so himself. Hence, the group does not share an immutable characteristic. Furthermore, the term “in the vicinity of Bethlehem” is not sufficiently delineated to give the feature of particularity to this group. “Vicinity” is an especially vague term, which can describe an area measured in feet or, when related to astronomical objects, light-years. If defined broadly, it threatens to defeat the law’s requirement of particularity. If defined narrowly, the threat becomes localized, and Respondents cannot show that the threat of persecution exists throughout the country, another requirement for asylum.

Consequently, the Court concludes that even if Respondents’ somewhat implausible factual claims are accepted, they have not made out a case for persecution on account of a protected ground, and are therefore ineligible for asylum or withholding of removal.

Regarding protection under CAT, the Court finds that although the threatening agent is the King, who must be regarded as a government actor, and the threatened action is murder, which would fall under most definitions of torture, the credibility issues raised supra (the minor Respondent being the son of God, the virgin birth story, the angels, foreign astrologers, dreams, etc.) plus the lack of any corroborating press reports or documentation supporting the alleged royal order, render the probability of torture lower than 50 per cent. CAT protection is only available when a claimant proves that it is more likely than not that he or she will be tortured on return to the home country. That has not been shown here.

Although it is unfortunate if King Herod is indeed slaughtering male babies in Judea, unless that act fits the narrow legal definition of persecution based on “race, religion, nationality, political opinion, or membership of a particular social group,” it is not a basis for asylum in the United States.

The claims for asylum, withholding of removal, and protection under CAT are hereby DENIED and IT IS ORDERED that Respondents be repatriated to the Herodian Kingdom of Judah.



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Date                                                                                      MURGATROYD WESLEY

Immigration Judge

Phoenix, AZ

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