Tuesday, September 11, 2001
Guatemala Peace Accord Doesn’t Compel Asylum Denial—Ninth Circuit
By a MetNews Staff Writer
The peace accord between leftist rebels and the government of Guatemala didn’t change conditions in that country enough to warrant deporting a man who was persecuted because of a family member’s position in the government, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The court reversed a decision of the Board of Immigration Appeals, and ordered that Fredy Orlando Ventura not be deported and be found eligible for asylum. The final decision on whether to grant asylum lies with the attorney general.
Ventura came to the United States in 1993, entering without inspection. He later applied for asylum and withholding of deportation, alleging that he would be persecuted by the rebels if he returned to his native country
He testified before the immigration judge that he left the country after guerillas spray-painted warnings on his house, on three occasions in 1992 and 1993, that he and his family would be harmed if he didn’t join the rebels.
He has also been threatened, he said, because members of his family—including a cousin with whom he is very close—serve in the army and an uncle is a military commissioner, responsible for recruitment.
A cousin who served in the army, and a friend who refused to join the guerillas, were both murdered, he testified. The immigration judge found the testimony to be credible, but said Ventura—who said he was unfamiliar with the ideological issues, but sympathetic to the government—failed to show that his fear was based on protected opinion.
The Board of Immigration Appeals affirmed, but Senior Judge David M Thompson, writing for the appellate court, disagreed.
Under Ninth Circuit precedent, Thompson noted, an alien persecuted because of a political opinion imputed to him or her by the persecutors may be granted relief regardless of what opinion he or she actually holds.
And while attempts at conscription alone do not constitute political persecution, persecution may be shown if those attempts are motivated by a “discriminatory purpose,” the judge said.
“Ventura’s evidence that his persecution occurred on account of imputed political opinion consists of his credible, uncontradicted testimony that the guerrillas targeted him because they believed he held anti-guerrilla sympathies; that his uncle was attacked and his cousin was killed by guerrillas because of their military affiliations; and that he is closely associated with his cousin Oswaldo, an army lieutenant,” the judge explained.
Thompson went on to say that it was unnecessary to remand the case to the BIA for a determination of whether conditions in Guatemala have changed sufficiently in the past eight years to render Ventura’s continued fear of persecution unreasonable. The evidence, he said, cannot overcome the presumption of future persecution that arises whenever past persecution is proven.
The judge acknowledged that conditions have improved since the December 1996 agreement between the government and the rebels’ umbrella group, the Guatemalan National Revolutionary Party.
But he cited a 1997 State Department report declaring that individuals involved in the past violence were continuing to seek “personal vengeance” and that the country had become more violent overall, despite the renunciation of violence by the guerilla movement.
Chief Judge Mary M. Schroeder and Eighth Circuit Judge Donald Lay, sitting by designation, concurred.
Copyright 2001, Metropolitan News Company