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Tuesday, May 28, 2024 | Back issues
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Guatemalan Gang Fears Sustain Bid for Asylum

(CN) - A man who claims that Guatemalan gang members have terrorized him since the murders of his father and cousin deserves one last shot at U.S. asylum, the Ninth Circuit ruled.

In partly granting Felix Flores-Rios' petition for withholding of removal Tuesday, a three-judge panel in Pasadena found that the Board of Immigration Appeals had failed to consider the immigrant's fear of persecution in Guatemala based on his family's opposition to a violent gang.

"The BIA did not address this social group claim - a failure that constitutes error and requires remand," Judge Margaret McKeown wrote for the federal appeals court.

In his application under the Convention Against Torture, Flores-Rios had claimed that removing him to his native country put him in danger because of a gang's vendetta against his family.

Flores-Rios, who entered the U.S. without inspection on September 10, 2007, also argued that his evangelical Christian faith made him a gang target.

In 2009, gang members killed his father outside of his evangelical Christian church in Guatemala. When Flores-Rios' cousin agreed to testify to the killing she witnessed, she was murdered the day before the hearing. Flores-Rios' sister began receiving threats next, even though she had not witnessed either killing, nor had she agreed to testifying against the gang.

When Flores-Rios lost his application for U.S. asylum, an immigration judge found that violence and witness intimidation - not religious persecution - led to the murders of Flores-Rios's relatives.

Though that ruling focused exclusively on Flores-Rios' religious claims, the crux of his appeal argues that his familial relationship puts him at risk of persecution.

"He does not claim to be a member of a social group comprised of witnesses against gangs," McKeown wrote. "Rather, he asserts that he is a member of a social group made up of his family and that he risks persecution by the gang because of its vendetta against his family."

While the BIA sided with the immigration judge, concluding that there is no link between the murder of Flores-Rios' father and his father's religious beliefs, the board bypassed his claim that he would be persecuted in Guatemala as a result of his family's opposition to the gang.

"In the face of Flores-Rios's social group claim and the evidence that gang members killed Flores-Rios's father, murdered his cousin and threatened his sister, the BIA erred in not addressing the family aspect of Flores-Rios's social group claim," McKeown wrote.

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