Metropolitan News-Enterprise


Monday, July 21, 2003


Page 1


Court Rejects Asylum for Low-Level Guatemalan Activists


By KENNETH OFGANG, Staff Writer/Appellate Courts


Political conditions in Guatemala have improved to the point that purported refugees who fled in the 1980s, but were not high-level leaders in government or in a party, do not need the protection of U.S. asylum laws, the Ninth U.S. Circuit Court of Appeals ruled Friday.

The court upheld the Board of Immigration Appeals’ ruling that Bernardo Gonzalez-Hernandez and four members of his family are removable aliens and not entitled to asylum.

Gonzalez, who admitted entering the United States illegally in July 1988, returning five months later to get his family, and entering illegally again, has been in deportation/removal proceedings since 1998. He claims that if returned to his native country, he will be persecuted as a result of his past association with the Christian Democratic Party.

Gonzalez testified that he was chosen by that party in 1987 to monitor an election.

On election day, he explained, he saw members of the rival Revolutionary Party stuff ballot boxes. When he confronted them, he said, he was struck in the head with the butt of a gun in the presence of police, who did not intervene.

A week later, he testified, he received a pair of threatening letters, and later heard rumors that Revolutionary Party members were going to harm him and his family. He fled with his family to Guatemala City, he said, but was told by friends and relatives back home that  members of the rival party were inquiring about his whereabouts, prompting him to flee to the United States.

An immigration judge found that Gonzalez had presented insufficient evidence to show that he had suffered persecution, or that he had good reason to fear persecution in the future. Even if he had been persecuted in the past, which as a matter of law would create a presumption that his fear of future persecution was well-founded, the presumption was rebutted by evidence that conditions in his home country had improved in the years since his departure, the IJ said.

The BIA disagreed with the IJ on the first issue, holding that Gonzalez had presented credible evidence of past harassment based on political opinion. But the board also concluded that the presumption of a well-founded fear of persecution had been rebutted.

Both the IJ and the board cited a 1997 State Department report. The report said that the Guatemalan civil war had ended, and that political harassment had ceased—except for “party leaders or high-profile activists,” who were generally able to safely relocate within the country.

The report did not mention the Revolutionary Party, a fact the IJ and BIA took to indicate that the party may no longer exist.

Judge Richard Tallman, writing for the Ninth Circuit, said the court was required to uphold the BIA ruling under a “quite narrow” substantial-evidence standard of review. Tallman was joined by Senior Judge David R. Thompson and Judge Stephen S. Trott.

The panel noted that Gonzalez was not a leader or high-level activist, having testified that his involvement in party politics was limited to his one-day stint as an election monitor 16 years ago. Even if he had held a more visible position, Tallman added, his admission that he was not persecuted while living in the capital, from which he said he fled only as a result of rumors reported from his hometown, is consistent with the State Department’s conclusion that victims of political harassment can safely relocate within Guatemala.

INS regulations, Tallman noted, say that an alien will generally not qualify for asylum if he or she may successfully relocate within his or her home country.

The judge acknowledged that the State Department report was ambiguous and contradictory in places, since it stated that political violence in the country had continued and that some activists had been subjected to threats or actual violence.  But in resolving such contradictions, he said, the BIA is deemed to have special expertise and its judgment is entitled to deference.

Tallman noted that in a case involving the same 1997 Guatemala report, INS v. Ventura, 123 S. Ct. 353 (2002), the high court summarily reversed a Ninth Circuit ruling that the BIA had erred in finding an applicant ineligible for asylum. The high court held that the required deference to the BIA necessitated that the court remand to the board if it found its decision unsupported by substantial evidence, and said the Ninth Circuit panel erred in substituting its judgment on the asylum issue for that of the board.

“The point is that the agency, not a court of appeals, must construe the country report and determine if country conditions have changed such that the applicant no longer has a well-founded fear of persecution,” Tallman wrote.

Attorneys on appeal were Susan E. Hill of Los Angeles for the petitioners and Norah A. Schwartz and Jamie Dowd of the Justice Department’s Office of Immigration Litigation for the government.

The case is Gonzalez-Hernandez v. Ashcroft, 02-72178.


Copyright 2003, Metropolitan News Company