US Court Denies Guatemalan Man’s Asylum Appeal

952313_gavel.jpgThe United States Court of Appeals for the Eighth Circuit recently denied a foreign national’s application for asylum last month because it did not demonstrate past persecution or a well-founded fear of future persecution.

Pedro Garcia-Colindres, a foreign national of Guatemala, had entered the United States without legal authorization along with his wife and son in 1994, and filed an initial application for asylum shortly thereafter. The US then began removal proceedings against him in 2005. He then filed an updated asylum application in 2006, which also was a request for withholding of removal.

In 2008, the Immigration Judge denied Garcia-Colindres’ asylum applications and withholding of removal. The Judge found that although he was credible, he did not demonstrate that he had suffered past persecution or that he had a well-founded fear of future persecution. The judge ordered him and his family removed to Guatemala. He filed an appeal with the Board of immigration appeals, which then affirmed the judge’s decision denying asylum. He then filed an appeal with the US Court of Appeals in 2012.

The court acknowledged that any foreign national may apply for asylum if the person is physically present in the United States and can establish that he/she is a refugee. The definition of refugee includes someone who is outside his or her country of nationality, and who is unable or unwilling to return, and is unable or unwilling to get protection of that country due to persecution or well-founded fear of persecution on the basis of that person’s political opinion or particular social group membership.

Garcia-Colindres claimed that he was persecuted in the early 1990s by the Guatemalan National Civilian Police (PNC). His claim alleged that the PNC briefly held him in custody and interrogated him for eight hours and gave him a minor beating including cigarette burns. He also alleged that the PNC murdered his son and daughter.

The Court of Appeals held that the brief interrogation and minor beating was not enough to rise to the level of past persecution required to obtain asylum. The court held that the asylum application lacked evidence that linked the PNC to the death of his two children. Finally the court held that the PNC was no longer in existence, and therefore he no longer had a future well-founded fear of persecution.

From the above opinion, it would seem that if his asylum application would have been adjudicated in 1994 when it was originally filed, it may have been granted on the basis that the PNC was still in existence, justifying a future well-founded fear of persecution.