Background
Leidy Azucena Mendez-Lemus and her two minor children, natives and citizens of Guatemala, sought review of the Board of Immigration Appeals dismissal of their claims for asylum, withholding of removal, and protection under the Convention Against Torture. The petitioner alleged she faced persecution due to her political opinion and sought relief based on the government’s inability to protect her from her persecutors.
The court’s reasoning
The court held that the Board of Immigration Appeals committed legal error by declining to address the petitioner’s involuntary sterilization claim on the basis that she failed to raise her political opinion claim before the immigration judge. The court found the claim was sufficiently raised because the petitioner checked the political opinion box on her application and testified about the sterilization. Regarding the asylum and withholding claims, the court determined that the arrest and prosecution of the petitioner’s former domestic partner and others on unrelated matters did not demonstrate the government’s ability to protect her. Furthermore, a three-month delay in the commencement of a police investigation after the petitioner reported imminent death threats did not evidence the police’s willingness to control her persecutors. The court concluded that the Board’s dismissal of the Convention Against Torture claim could not be sustained because evidence of police inability or unwillingness to oppose the crime, combined with awareness of the activity, may prove acquiescence.
What it means going forward
The case is remanded to the Board of Immigration Appeals to consider the political opinion claim in the first instance and to decide any remaining issues. The motion to stay removal is granted pending the agency’s further proceedings.