Background
The petitioners sought asylum, withholding of removal, and protection under the Convention Against Torture after facing persecution by their brother and uncle in Guatemala. The Immigration Judge and the Board of Immigration Appeals denied these applications, finding that the Guatemalan government was able and willing to protect the petitioners, citing a protective order issued against the brother. The Board noted that the brother violated the order but the petitioner did not report the violation to authorities.
The court’s reasoning
The court held that the Board of Immigration Appeals may have failed to consider highly probative evidence regarding the Guatemalan government’s inability to protect the petitioner, including the lack of an interpreter, failure to arrest the brother, and failure to refer the case for criminal charges. Consequently, the asylum and withholding of removal claims were remanded. However, the court found substantial evidence supported the denial of Convention Against Torture protection because the petitioner’s fear of future torture was speculative and the record lacked evidence that the government would acquiesce to such torture.
The dissent
This is substantial evidence supporting the BIA’s decision. Still, the majority faults the agency for ignoring six facts. But the BIA specifically looked to the IJ’s findings on the record, and concluded that given the record as a whole, the Guatemalan government’s willingness and ability to protect the respondent was a permissible view of the evidence.
Judge R. Nelson
What it means going forward
The case is sent back to the Board of Immigration Appeals to reconsider the asylum and withholding of removal applications with a full review of the evidence regarding Guatemala’s judicial and law enforcement responses. The denial of Convention Against Torture protection remains in effect.