Asylum Law Does Not Protect Against Threats or Attacks Solely Motivated by Criminal Intent
The procedural history, facts of record, holding and rationale in Guevara-Fabian v. Garland (October 25, 2022) No. 20-60627 are as follows:
Case History
The Petitioner applied for asylum and withholding of removal before an Immigration Judge.
The Immigration Judge denied all of the Petitioner’s relief applications.
The Petitioner appealed the denial of his relief applications to the Board of Immigration Appeals (“BIA”).
The BIA affirmed the denial of the Petitioner’s relief applications by the Immigration Judge without opinion.
The Petitioner then filed a petition for review of the BIA’s decision.
Facts
- The Petitioner shares a family relationship with an uncle who was attacked and beaten after he refused to carry contraband into the prison where he worked.
- The Petitioner’s uncle has avoided further attacks.
- The Petitioner’s family members that remain in El Salvador have
- not been threatened or harmed
- Although the Petitioner had been targeted for extortion, she no longer owns the business that made her an extortion target.
Held
Petition for review DENIED
Rationale
The Petitioner sought asylum and withholding of removal based on membership in a proposed particular social group described as family members of an uncle who had been attacked and beaten after refusing to carry contraband into the prison where he worked.
The Fifth Circuit Court of Appeal reasoned as follows:
- The Immigration Judge found that no factual nexus exists between the Petitioner’s familial relationship to her uncle (even if that family is a particular social group) and the harm that the Petitioner experienced (even if that harm is persecution).
- Rather, there is substantial evidence that the Petitioner was the target of an extortion scheme, that she was safe so long as she paid, and that the extortionists targeted her because she owned a profitable business; not because she was a family member of an uncle who had been physically harmed.
- With regard to the Petitioner’s claim to a well founded fear of persecution, her uncle has himself avoided further attacks, the Petitioner’s family members that remain in El Salvador have not been threatened or harmed, and the Petitioner no longer owns the business that made her an extortion target.
- Under section 242(b)(4)(B) of the Act, the Immigration Judge’s factual findings are conclusive “unless any reasonable adjudicator would be compelled to conclude to the contrary.”
- The record does not compel any contrary findings.
- Therefore, the Petitioner’s petition for review must be denied.
Commentary
Guevara-Fabian v. Garland (October 25, 2022) No. 20-60627 is unusually brief; only about two pages in length, including the title page.
However, the scope of the decision covers a broad field of asylum law related to the requirement of a nexus between the motive of the alleged persecutor and one or more of the five recognized grounds for asylum: race, religion, nationality, membership in a particular social group and political opinion.
Many unsuccessful asylum applications fail because the applicant cannot establish a connection between the motive of the alleged persecutor and at least one of the five statutory grounds in the definition of refugee.
It is not enough to establish egregious punishment or harm or a risk of egregious punishment or harm that should be classified as persecution. For example, there might be a risk of death or severe punishment or harm if an alien is removed from the United States. However, if that risk of death or severe punishment or harm is not motivated by race, religion, nationality, membership in a particular social group or political opinion the alien is not eligible for asylum in the United States.
In Guevara-Fabian v. Garland, the Petitioner’s uncle suffered punishment and harm for refusing to carry contraband into a prison and the Petitioner was targeted for extortion. However, threats or attacks motivated by criminal intentions without more do not provide a basis for protection under asylum law. See Thuri v. Ashcroft, 380 F.3d 788, at 793 (5th Cir. 2004). See, also, Sanchez v. United States Attorney General, 392 F.3d 434 (11th Cir. 2004) (evidence that either is consistent with acts of private violence or merely shows that a person has been the victim of criminal activity does not constitute persecution based on statutorily protected ground).
Persons fearing retribution over purely personal matters will not be granted asylum on that basis. Matter of Y-G-, 20 I&N Dec. 794, at 799 (BIA 1994). See, also, Matter of S-P- I&N Dec. 486 (BIA 1996).