Garcia-Milian v. Holder

Summarized by:

  • Court: 9th Circuit Court of Appeals Archives
  • Area(s) of Law: Immigration
  • Date Filed: 09-18-2013
  • Case #: 09-71461
  • Judge(s)/Court Below: Circuit Judge Ikuta for the Court; Circuit Judge O’Scannlain; Partial Concurrence and Partial Dissent by Circuit Judge Paez.
  • Full Text Opinion

The threat of physical harm unrelated to a political opinion is not a valid ground for asylum; absent a showing of corruption or other inability to investigate by local authorities the threat does not raise an inference that public officials are likely to acquiesce in future torture.

Lydia Garcia-Milian, a Guatemalan native and citizen, petitioned for review denial of her applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”) by the Board of Immigration Appeals (“BIA”). While in Guatemala, Garcia-Milian was unaware that her husband was in a guerilla group as the two did not discuss politics. Two masked men appeared at her home looking for her husband because of his guerilla group association. She told the men a false location of her husband, and subsequently they beat and raped her. Before leaving they told Garcia-Milian that if they could not find her husband they would return and kill her. She reported the incident to authorities, but they did not investigate because she could not identify the men. Fearing they would return to kill her, she fled the country. The IJ and BIA denied Garcia-Milian’s claims because she failed to establish a nexus between the incident and protected grounds under the Act, and to establish that it would be more likely than not that she would face torture with consent or willful blindness of a government officer. Applicants for asylum bear the burden of proving persecution was based “on account of race, religion, membership in a particular social group, or political opinion.” The Ninth Circuit held that the facts did not compel a reasonable fact finder to conclude that Garcia-Milian was subject to persecution because of imputed political beliefs. Garcia-Milian also failed to establish she would likely be tortured if returned to Guatemala with the acquiescence of a public official. Here, the government did not acquiesce, but took steps to combat the violence. The panel denied Garcia-Milian’s petition because the evidence did not compel the conclusion that Garcia-Milian was persecuted because of an imputed political opinion and the attack occurred with the consent of the Guatemalan government. PETITION FOR REVIEW DENIED.

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