(CN) – The 8th Circuit upheld the denial of asylum to an illegal immigrant from Guatemala who claimed he risked being targeted for violence and kidnapping due to his perceived wealthy social status.
Julio Matul-Hernandez has been finghting his deportation since 2005, pointing to a history of forced military service and violence perpetrated against his family.
Forced into the Guatemalan army as a teenager, Matul-Hernandez deserted the service at 17 and made his way to Mexico, where he worked in a fruit market for five years before illegally entering the U.S. in 1993.
Between then and his coming to the attention of U.S. immigration officials, Matul-Hernandz returned to Guatemala several times to visit his family and, on one occassion, was threatened by three armed men in his father’s grocery store.
Both his uncle and brother were victims of violent crime — his brother having been beaten by several men who were particularly targeting the family, and his uncle was kidnapped and killed after the family was only able to pay half of a $125,000 ransom.
Matul-Hernandez applied for asylum, or, in the alternative, the privilege of voluntarily leaving the United States based on his membership in a particular social group, namely, “Guatemalans returning from the United States who are perceived as wealthy.”
An immigration judge granted his request to depart the country voluntarily, finding that while his testimony was credible, Matul-Hernandez’s failed to meet the requirements for a grant of asylum.
He then turned to the Board of Immigration Appeals (BIA), which also found Matul-Hernandez’s asylum request unconvincing on the grounds that he “did not meet his burden of showing past persecution or a reasonable probably of future prosecution, that he did not show that the government of Guatemala was unable or unwilling to control alleged persecutors and that there was little evidence that his social group would be perceived as a group by society or subject to a higher incidence of crime that the rest of the population.”
With that, Matul-Hernandez turned to the 8th Circuit, challenging the BIA’s decision – while simultaneously seeking a grant of asylum – under the Convention Against Torture, or withholding of removal.
Under the Convention Against Torture, relief can be granted if an individual can show that it is more likely than not that he would be subjected to torture if he returned to his home country, and that such torture would be inflicted with the consent or acquiescence of a public official.
Writing for the three-judge panel, Judge Roger Leland Wollman said in reviewing the case, the court was look for an abuse of discretion by either the BIA or immigration judge, and also must determine whether their decisions where based on substantial evidence.
In regard to Matul-Hernandez’s asylum request, “[t]he BIA found that Matul-Hernandez did not meet his burden to show a well-founded fear of persecution upon return to Guatemala on account of his membership in a particular social group, namely Guatemalans returning from the United States who are perceived as wealthy,” Wollman wrote. “This determination was based on the IJ’s factual finding that although Matul-Hernandez was threatened by… three men in his father’s store, he has not been physically harmed by gangs or criminals in Guatemala.
“The BIA’s determination that Matul-Hernandez’s experiences do not rise to the level of past persecution is supported by substantial evidence in the record,” Wollman continued. “The BOA and IJ also found that Matul-Hernandez had not established a well-founded fear of persecution based on membership in a particular social group because Matul-Hernandez failed to establish membership in such a group. We agree.”
Indeed, Wollman noted, the BIA found that “affluent Guatemalans” do not constitute a particular social group within the meaning of the INA, because the group lacked the requisite particularity and social visibility that could be attached to something like gender, race, kinship or, in some cases, past experiences.
Further, the judge endorsed the BIA’s contention that “‘Guatemalans returning from the United States who are perceived as wealthy’ are a not particularly and socially visibile group such that could be perceived as a group and targeted for persecution.”
“The BIA relied on the IJ’s factual findings that although ‘crime and violence are significant problems’ in Guatemala, ‘the respondent did not demonstrate that it is a common pattern or practice in Guatemala to kidnap individuals returning from the United States based on their perceived wealth.'”
Before the 8th Circuit, Matul-Hernandez raised the additional argument that he is part of a second social group, “family members of kidnapped and murdered victims in Guatemala.”
But Wollman held that panel couldn’t consider the issue as it had not been raised before the BIA.
A similar failure to raise a prior claim also doomed Matul-Hernandez’s argument under the Convention Against Torture.
“The word ‘torture’ does not appear in the brief, government consent or awareness of violent crime before it occurs is not mentioned, and in his conclusion Matul-Hernandez requests only that ‘this court grant his asylum, or in the alternative Withholding of Removal, or Voluntary Departure.’ The IJ did not address the issue, and the BIA explicitly noted that ‘[t]he respondent did not seek protection under the Convention Against Torture, and [such protection] is thus deemed waived,'” Wollman wrote.
The 8th Circuit also rejected Matul-Hernandez’s request for a Withholding of Removal, holding that “[b]ecause [he] did not establish the well-founded fear of persecution required for asylum, he did not meet the more rigorous burden of showing a clear probability of persecution.”