Immigration – Asylum – Past persecution

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Where the petitioner, a Salvadoran national, seeks review of an order of the Board of Immigration Appeals approving the denial of his applications for asylum and withholding of removal, the petitioner has failed to establish past persecution and accordingly, the petition must be denied.

“To demonstrate past persecution, [petitioner Julio Faustino] Guerrero must produce ‘convincing evidence of a causal connection’ between the harm that he endured and a statutorily protected ground — in this case, his political belief. …

“The petitioner challenges the agency’s determination that the mistreatment that he suffered was ‘more in the nature of [] forced conscription than of persecut[ion].’ He emphasizes that unlike in … related cases, the guerillas knew his political view and even attempted to change it by forcing him to attend political meetings. On the basis of this evidence, he asserts that whatever the guerillas’ other reasons for targeting him for mistreatment, one of their motives was clearly his political opinion. For the reasons discussed below, we do not believe the evidence mandates a finding to that effect.

“We begin with the evidence, credited by the IJ and BIA, that the petitioner’s political opinion was either known or presumed by the guerillas. While such evidence is certainly necessary to the petitioner’s claim … it is not sufficient. It is not enough to point to the guerillas’ presumed knowledge of Guerrero’s opposition to their cause, or even to argue, as the petitioner does, that the guerillas had ‘very little regard for his safety and well-being’ because of it. To demonstrate persecution ‘on account of’ his political belief, the petitioner must also provide specific evidence that the [Farabundo Martí National Liberation Front (FMLN)] targeted him as a means to punish him for the pro-government, anti-guerilla view that they attributed to him. …

“That the guerillas forced the petitioner to attend political rallies along with his fellow villagers does not unarguably demonstrate such politically-motivated punitive intent. While the Board might have inferred that the guerillas forced the petitioner to attend these rallies in order to punish him for and to overcome his opposition to their cause, it could also have reasonably concluded that the events had less to do with the petitioner’s political beliefs than with the guerillas’ own political and military strategy. … It is plausible, for example, that the guerillas rounded up the petitioner and his fellow villagers in order to create an illusion of greater popular support for what was, after all, alleged to be a popular cause. They may also have sought, in a classic tactic of guerilla warfare, to blur the lines between their forces and the civilian population. … A fortiori, the record evidence does not compel the conclusion that the petitioner’s forced attendance at political rallies — much less any of the other incidents that comprise his claim — bore a nexus to a protected ground.”

Guerrero, et al. v. Holder (Lawyers Weekly No. 01-032-12) (10 pages) (Howard, J.) (1st Circuit) Julio A. Vázquez and Vázquez & Shin on brief for the petitioners; Tony West, Melissa Neiman-Kelting and Anthony J. Messuri on brief for the respondent (Docket No. 10-2286) (Jan. 31, 2012).

Click here for the full-text opinion.