No asylum for man who says family is gang target

A Guatemalan native whose brother and cousin were killed by a violent street gang in that country is not entitled to asylum based on a claim that the gang is targeting his family, the 4th U.S. Circuit Court of Appeals has held.

The court affirmed the Board of Immigration Appeals' decision to deny Rutilio Lopez-Soto's requests for asylum and relief under the United Nations Convention Against Torture.

Lopez-Soto had admitted deportability at a November 2000 immigration hearing, but claimed that asylum was appropriate since he faced persecution in Guatemala by a gang known as Mara 18 on account of his membership in a social group - in this case, his family.

The agency's finding to the contrary was not an unreasonable conclusion, the 4th Circuit held in a 2-1 split.

We take pains to make our reasoning as clear as possible: we do not find that evidence like the Petitioner's could not support a determination - that Lopez-Soto was targeted on account of his family status among other variables, Judge Roger L. Gregory wrote for the court. Rather, we hold only that the evidence does not compel such a conclusion.

Judge M. Blane Michael, dissenting in the case, drew no such distinctions.

The majority affirms the [immigration judge's] denial of asylum on the ground that Mara 18 did not persecute Rutilio on account of his family membership, Michael wrote. I respectfully dissent because any reasonable factfinder would have to have to conclude the opposite.

Elizabeth B. Wydra, a supervising attorney in Georgetown University Law Center's Appellate Litigation Program, said yesterday that the center is considering whether to seek a rehearing in the case. Former Georgetown law student James M. Sullivan argued the matter on behalf of Lopez-Soto in June as part of the Georgetown program.

As the majority notes, he does have a well-founded fear of harm from the gang, Wydra said, pointing out that Lopez-Soto's cousin, Elmer Lopez Mejia, was killed by Mara 18 members when he was deported back to his native Guatemala from Mexico. There's every reason to think the same fate might befall Mr. Lopez-Soto.

Counsel for the U.S. Department of Justice declined to comment on the case.

According to the opinion, gang members killed Lopez-Soto's older brother, Edgar, in 1990 after he refused to join the group. Another brother fled to the United States to escape a similar outcome and is now in this country legally.

In 1999, Rutilio Lopez-Soto and his cousin, then 16, fled Guatemala for Mexico to escape the continued harassment. Rutilio made it all the way to the Texas border before being detained by U.S. Immigration and Naturalization Service officials; Elmer, however, was caught in Mexico and was swiftly deported.

Elmer was shot in the head within days of his return to Guatemala, and died. Three months later, Elmer's brother Danny was shot five times by Mara 18 members but survived.

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At an April 2001 hearing on Lopez-Soto's asylum request, a Guatemalan expert testified that the gang typically targets the family members of persons they have already killed - as a way of heading off acts of revenge. The surviving brother, also, testified that his family was being persecuted for its continued resistance to the group.

The immigration judge concluded, however, that Rutilio was being targeted simply because he was a young man living in Guatemala.

And the Convention on Torture, the judge held, did not apply because the torture Rutilio feared upon deportation was not sponsored by the Guatemalan government. The agency affirmed.

On appeal, the 4th Circuit noted that asylum may be given to refugees unwilling to return to their native country because of a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

While the court went so far as to explicitly state that a family was a particular social group under the federal immigration statute - a question never before addressed by the 4th Circuit - it stopped short of holding that the persecution Lopez-Soto faced upon a return to Guatemala was on account of his family, giving deference to the agency.

On this record, there is no evidence so compelling that no reasonable fact-finder could fail to find causation, Gregory wrote, concluding that the gang threats to Lopez-Soto were not necessarily linked to the slaying of his brother Edgar.

The agency's finding that the Guatemalan government does not acquiesce in Mara 18's doings was supported by substantial evidence, the court held.

WHAT THE COURT HELD

Case:

Rutilio Lopez-Soto v. Ashcroft, Attorney General, US4th No. 03- 1331. Published. Opinion by Gregory, J.; dissent by Michael, J. Decided September 20, 2004.

Issue:

Did the Board of Immigration Appeals err in denying claims for asylum and for protection under the Convention Against Torture by a man whose brother and cousin died at the hands of a Guatemalan street gang?

Holding:

No. 1) The evidence does not compel the conclusion that the asylum seeker was targeted on account of his membership in a particular social group, i.e., his family. 2) The petitioner did not show that the torture would be inflicted with the consent or acquiescence of a public official, as required by the convention.

Counsel:

James M. Sullivan for petitioner; Victor Matthew Lawrence for respondent.

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