Court Denies Asylum for Failure to Show Legally Protected Ground

By Tanya Roth, Esq. on June 29, 2012 | Last updated on March 21, 2019

In order to support a petition for asylum, it's important to prove persecution or likelihood of future persecution. Without a showing of either of these two, a case for asylum becomes very difficult.

The First Circuit Court of Appeals looked at such a case last week. A Guatemalan native petitioned for review of her removal order, saying that the immigration courts erred when they denied her petition for asylum.

Let's have a look at her underlying asylum claim.

The petitioner, Maria Ayala, supported most of her case through oral testimony, which the Immigration Judge found to be credible.

In 1993, Ayala fled to the United States, after guerrilla fighters had killed, tortured and robbed several of her family members. In the process of fleeing Guatemala, Ayala left two children behind.

She arrived in California and eventually moved to Providence, Rhode Island.

She filed for asylum but was denied, despite the fact that her oral accounts were found credible. The issue here was one of not satisfying the burden in an asylum case.

In a valid asylum case, the petitioner must show that she has a well founded fear that she will suffer persecution on account of a legally protected ground if she returns to her home country.

Evidence of past persecution can support this fear. Ayala mentioned the attacks on her family members, attempting to show the Immigration Judge that she feared future persecution. The problem there was that the persecution had to be on account of a legally protected ground.

In this case, the court didn't go into an explanation of what "legally protected ground" means. But in any event, the court rejected the arguments that Ayala's family was opposed to the guerrilla fighters, citing that this didn't constitute a legally protected ground.

Nor did the fact that her return from the U.S. would give her the perception of wealth and thus, make her a target.

The First Circuit Court of Appeals rejected her arguments and upheld her order for removal.

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