Metropolitan News-Enterprise


Thursday, April 23, 2020


Page 1


Ninth Circuit:

Family That Doesn’t Qualify for Asylum Might Be Able to Avoid Deportation

Persecution by Gangs in Homeland, Partially Based on Ethnicity, Might Entitle Citizens of Guatemala to Withholding of Removal


By a MetNews Staff Writer


A family of Mams—a people indigenous to Guatemala who were a part of the ancient Mayan civilization—is not entitled to asylum in the United States based on being the prey of gangs in their native land, the Ninth U.S. Circuit Court of Appeals held yesterday, but might be able to remain here if, upon further examination, it is determined that “withholding of removal” relief is appropriate.

A three-judge panel—comprised of Chief Judge Sidney R. Thomas, Senior Judge Ferdinand F. Fernandez, and Judge William A. Fletcher—acted upon a petition by Florentina Carreto-Escobar and her three minor children for review of a Board of Immigration Appeals (“BIA”) dismissal of their appeal from an immigration judge’s adverse action on their bid to avoid deportation.

In a memorandum opinion, it denied review of the BIA’s dismissal of the appeal from the denial of asylum and relief under the Convention Against Torture (“CAT”). It held that asylum was not sought on a “protected ground” and that the family did not show a likelihood of torture if there were a return to Guatemala.

The petition was granted, however, with respect to the BIA’s dismissal of the appeal from denial of an application for withholding of removal.

Substantial Evidence Lacking

“[S]ubstantial evidence does not support the BIA’s determination that the harm petitioners suffered does not constitute persecution,” the opinion says.

It recites testimony by Carreto-Escobar that gang members attempted to abduct and rape her daughter, had on several occasions struck her sons (which they corroborated), had stolen money from the family and had thrown rocks at their home in the nighttime,

“These acts contribute to a finding of persecution,” the opinion declares.

It goes on to say:

“The fact that Petitioners were ‘victimized at different times over a period of years’ further supports a finding of persecution….Taken together, this testimony compels the conclusion that the harm Carreto-Escobar suffered rises to the level of persecution.”

Different Standard

The BIA made note of testimony that there is widespread gang violence in Guatemala and found that asylum was not available to the Carreto-Escobar family because it was not shown that their ethnicity was “one central reason” for the persecution by gangs—with which the Ninth Circuit agreed. However, the panel pointed out that to qualify for withholding of removal, there is a less onerous requirement: showing that ethnicity was “a reason.”

The BlA’s order dismissing the appeal said:

“Nothing in the record indicates that the gang members would have treated the respondents any differently if they were not Mam.”

Disagreeing, the Ninth Circuit panel said:

“However, we note that Carreto-Escobar testified that the gang members who harassed her and her children were ‘Latino,’ spoke only Spanish, and harassed Mams. Further, her  oldest son testified that gang members ‘would harass people that speak Mam.’ ”

The matter was remanded to the BIA “to consider Carreto-Escobar’s claim for withholding of removal in a manner consistent with these findings.”

The case is Carreto-Escobar v. Barr, 18-71073.


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