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Court of Appeals and BIA Denies Petitioner’s Request for Withholding of Removal after Failing to Establish Grounds and Probability of Prosecution

file3431250395716The 1st Circuit Court of Appeals and the Board of Immigration Appeals (BIA) denied the appeal for withholding of removal by one Ronaldo Hernandez-Lima, a native and citizen of Guatemala, who asserted that he experienced past persecution in his home country on account of his political opinion and membership in the Democratic Christian Party.

Failing to Establish Grounds of Prosecution

Hernandez-Lima was admitted to the U.S. in 2004 using a B-2 tourist visa which allowed him to stay in the country until May 2005. He overstayed, however, and in January 2011 the Department of Homeland Security served him with a Notice to Appear, charging him with removability based on 8 U.S.C. § 1227(a)(1)(B).

Hernandez-Lima initially planned to apply for asylum, withholding of removal, voluntary departure, and protection under the Convention Against Torture (CAT). Ultimately, he did not apply for asylum, but the immigration judge (IJ) entertained his three other applications.

Despite finding him credible, the IJ denied Hernandez-Lima’s withholding of removal request because he failed to show that there was sufficient harm from the threats he received in Guatemala, and that he failed to establish clear probability of future persecution because all he was able to show was that he had been a victim of a crime unrelated to protected ground.

The IJ also denied his application under CAT, because he failed to establish that Guatemalan officials would turn a blind eye to any torture he could possibly face.

In the end, the IJ only granted his request for voluntary departure, because he complied with the necessary statutory requirements.

Appeal to the BIA

After the findings of the IJ, Hernandez-Lima was forced to submit an appeal to the BIA, arguing that the record evidence would have compelled reasonable factfinder to reach a different conclusion on his case. The BIA denied his petition and declared him ineligible for withholding removal, claiming that he failed to establish that the prosecution he faced in the past would likely happen in the future. The BIA also claimed that he failed to establish that the harm he could face in the future was both:

  • (1) severe enough to constitute persecution, and
  • (2) related to a statutorily protected ground

The BIA claims that, at most, Hernandez-Lima was able to establish that he faced a risk of danger from general conditions of strife – to which all persons are vulnerable.

Cases like these show the difficulty foreign nationals face in establishing grounds of past persecution and probability of future persecution in their native countries. If you or someone you know is facing a similar case, call Lyttle Law Firm at (512) 215.5225 and schedule a consultation with us.