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Guerilla Recruitment Target Doesn't Qualify for Asylum

By Robyn Hagan Cain on October 23, 2012 | Last updated on March 21, 2019

An asylum applicant won't win an immigration appeal simply because he's credible; the facts supporting his application must also meet the U.S. criteria for asylum.

Luis Escobar, a citizen of Guatemala, asked the First Circuit Court of Appeals to review the Board of Immigration Appeals' (BIA) decision denying his applications for asylum, statutory withholding of removal and protection under the Convention Against Torture. While the Boston-based court sympathized with Escobar, it rejected his appellate arguments.

In June 1989 Escobar, then age 18, arrived in the United States. Four years later, he applied for asylum, asserting that he had fled his native country due to political persecution after Guatemalan police had accused him of being a "guerrilla sympathizer."

In March 2006, after the Department of Homeland Security began removal proceedings against him, Escobar offered a different version of his claim: In his later account, Escobar said that he left Guatemala because he feared persecution by guerillas whose recruitment efforts he had twice resisted. He also described an incident in which guerrillas allegedly bombed a bus driven by his father, a second incident in which he and his mother witnessed guerrilla activity during a bus ride, and a subsequent bus ride in which guerrillas robbed his mother.

Escobar argued that he was the victim of past political persecution and that, if returned to Guatemala, he would also be subject to persecution on account of "membership in a particular social group," namely, "the particular social group of Guatemalan nationals repatriated from the United States."

Those arguments didn't fly with the immigration judge (IJ). While the IJ found that Escobar was a credible witness, the facts did not support his asylum application or other claims for relief. The BIA affirmed that decision.

The two statutory bases for persecution invoked here were "membership in a particular social group" and "political opinion." Escobar's problem was that he offered no indication that guerillas targeted his family based on his political beliefs.

Here, the First Circuit reasoned that Escobar and his parents were the unfortunate victims of "general harm attributable to the widespread civil strife that plagued Guatemala during that time," and that Escobar didn't qualify for asylum.

The court similarly rejected his theory that he would be the target of extortion upon repatriation because gangs would assume that he had "amassed significant wealth" in the U.S. The First Circuit noted that it had specifically rejected that legal theory last year in Sicaju-Diaz v. Holder.

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