Wednesday, August 5, 2026
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Asylum Unavailable Where Threats Were Never Followed by Harm—Ninth Circuit
Dissenter Says Family Not Injured Only Because They Remained in Home, Hired Security-Guard Protection; Balks at Remand Not Being Ordered
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals has denied a bid for review of a decision by an administrative body giving the go-head to the deportation of a woman and her minor child to Guatemala, with a dissenter arguing that there should be a remand with instructions to rethink whether asylum should be granted based on multiple threats of harm causing the petitioners to stay cooped up at home and protected by a private security company.
Senior Circuit Judge Marsha S. Berzon wrote that while she agrees with the majority’s memorandum opinion that neither a withholding of removal nor relief under the Convention Against Torture is warranted, the application by Yenifer Leticia Orozco Aguilar for asylum should be considered further by the Bankruptcy Appeals Panel (“BAP”).
Aguilar and family members were apparently subjected to threats of serious injury, while in Guatemala, if they did not acquiesce to demands by perpetrators of a protection racket, with threats continuing since they arrived in the United States.
Lack of Harm
But, the panel’s majority—comprised of Circuit Judge Jennifer Sung and Senior Circuit Judge Susan P. Graber—stressed in Monday’s opinion, no harm was actually inflicted during the Guatemala three-and-a-half year period from the time Orozco and her daughter arrived in the U.S. and the hearing before an immigration judge. They acknowledged that one month after Orozco came to the U.S., the gang attempted to shoot her brother, who was still in Guatemala.
That occurrence, the judges said, “may reflect that the gang’s threats were serious,” but, they added, “the BIA permissibly weighed that incident against the lack of other harm to Petitioner’s family….”
Sung and Graber said the BIA reasonably determined that threats by the gang were “undermined” by the “continued well-being” of Orozco and her daughter.
They quoted the BIA as remarking that the family “spent enough time at home in their hometown that gang members could have harmed them had they so desired.”
Berzon’s Dissent
Berzon protested:
“[T]he record shows that the family’s survival was not because the gang did not try to follow through on these threats. Orozco’s brother was shot at shortly after she left the country. He survived because his family was paying for private security and the guards were able to protect him. The record also indicates that the family’s survival came at a steep price—family members’ ability to go out in public was constrained, they had to regularly change phone numbers, and the family moved houses around the country frequently to avoid the threatened violent attacks.”
She wrote:
“I am not aware of any case law regarding the impact of restrictions on a family’s daily lives and the reliance on security personnel on the analysis of the objective prong of the well-founded fear analysis.
“Given this gap, I would remand to the BIA to address the impact of the private security and the resulting restrictions on the family’s freedom of movement on the well-founded fear inquiry and therefore respectfully dissent.”
The case is Orozco Aguilar v. Blanche, 21-1288.
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