SDSHHH Prevails in Ninth Circuit: Asylum Applicants Granted Trial on Civil Rights Violations Against United States Based on Officer's Harassment and Extortion

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Today, the Ninth Circuit Court of Appeals, in a published decision, held that Xue Lu and Jie Hao are entitled to their day in court for crimes committed by a United States asylum officer in the course of their application for political asylum in the United States.

Powell abused his powers for his own benefit. In doing so, he acted within the scope of his employment as defined by California. To compensate his victims, spread the loss, and stimulate the government to greater vigilance in controlling aberrant behavior, California law makes the United States bear the cost of Powell's conduct, unauthorized but incidental to the asylum system.

Today, the Ninth Circuit Court of Appeals, in a published decision, held that Xue Lu and Jie Hao are entitled to their day in court for crimes committed by a United States asylum officer in the course of their application for political asylum in the United States.

In the Spring of 2000, United States asylum officer Thomas Powell attempted to extort payment and sexual favors in exchange for approval of both Ms. Lu and Ms. Hao's asylum applications, according to court documents. After Ms. Lu refused, her application was denied. Ms. Hao contacted her lawyer who then alerted the Justice Department. After a sting operation in which Ms. Hao wore a wire, Mr. Powell was arrested and subsequently convicted by a jury of deprivation of Ms. Lu's civil rights, and of seeking bribes from both Ms. Lu and Ms. Hao (Crim. No. 02-CR-667-ALL).    

In February 2001, Ms. Lu and Ms. Hao filed a civil action, Case No. 01-01758 CBM (Ex), against Powell and his employer, the United States. However, according to court documents, Judge Consuelo Marshall of the United States District Court for the Central District of California dismissed Ms. Lu and Ms. Hao's action for failure to state a cause of action under the Federal Tort Claims Act, finding that Defendant Thomas Powell's sexual assault and extortion of Plaintiffs were not within the course and scope of his employment as an asylum officer.

Today, the Ninth Circuit, in Case No. 08-56421, reversed the District Court's holding, and held that Ms. Lu and Ms. Hao could proceed on their claims of infliction of emotional distress and interference with their civil rights. In a published decision, Judge Noonan held, "Powell was part of a process in which he was expected to participate in a lawful way, reviewing the documentation of the asylum applicant, interviewing her, and assessing the credibility of her claims." Judge Noonan concluded that "Powell abused his powers for his own benefit. In doing so, he acted within the scope of his employment as defined by California. To compensate his victims, spread the loss, and stimulate the government to greater vigilance in controlling aberrant behavior, California law makes the United States bear the cost of Powell's conduct, unauthorized but incidental to the asylum system."

V. James DeSimone of Schonbrun DeSimone Seplow Harris Hoffman and Harrison, LLP, the attorneys representing Ms. Lu and Ms. Hao stated: "This is a great day for justice. After ten long years, we will take this case to trial to hold the United States accountable for its asylum's officers request for sexual favors and extortion."

For additional information contact:
V. James De Simone
SCHONBRUN DESIMONE SEPLOW HARRIS
HOFFMAN & HARRISON
(310) 396-0731 ext. 316
http://www.sdshh.com

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