Denial of asylum upheld despite Board of Immigration Appeals error – Rhode Island Lawyers Weekly


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The 1st U.S. Circuit Court of Appeals has upheld the denial of an application for asylum despite finding that the Board of Immigration Appeals erred by failing to evaluate the severity of the applicant’s mistreatment as a teenager through the eyes of a child.

Petitioner Lilian Eugenia Varela-Chavarria claimed that she was afraid to return to El Salvador because of pervasive gang violence. By the time she was around 14, gang members allegedly threatened to sexually abuse her and otherwise hurt her if her mother refused to pay a “tax” for the “protection” of her children.

The BIA, however, ultimately affirmed an immigration judge’s denial of the petitioner’s application for asylum and withholding of removal.

“Here, Varela-Chavarria was fourteen years old when the gang began to threaten her, but neither the IJ nor BIA acknowledged its obligation to apply the childhood standard, mentioned Varela-Chavarria’s age, or explained why the facts described did not amount to persecution under that standard. Thus, the IJ and BIA’s conclusion that Varela-Chavarria’s harm was insufficient to constitute persecution was infected by legal error,” Judge Julie Rikelman wrote for the three-judge 1st Circuit panel.

“Under these circumstances, we struggle to imagine how Varela-Chavarria’s mistreatment could be classified as anything other than persecution,” Rikelman added.

“Proving persecution, though, does not suffice to obtain asylum. An applicant must also prove nexus: that the persecution was on account of race, religion, nationality, membership in a particular social group, or political opinion,” she continued.

“Because Varela-Chavarria did not delineate a particular social group to which she claimed to belong, she failed to link her asylum claim to any protected ground. Accordingly, the BIA appropriately denied the application for asylum, and, by extension, withholding of removal,” Rikelman wrote.

The 16-page decision is Varela-Chavarria v. Garland, Lawyers Weekly No. 01-222-23.

Click here to read the full text of the opinion.



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