Author: LegalEase Solutions

QUESTION(S) PRESENTED

1. Is there case law dealing with asylum sought by indigenous Guatemalans and indigenous Guatemalan business people claiming that they were persecuted because they were indigenous? 

2. Is there case law supporting the proposition that where the interpreter speaks another dialect of the same language the asylum seeker is denied due process? 

3. How many Achi dilects are there in Guatemala? 

4. Are there any relevant and trustworthy articles and reports which talk about indigenous business men and leaders being persecuted and killed?

SHORT ANSWER(S)

1. There is case law that deals with asylum sought by indigenous people of Guatemala claiming that they are persecuted because they are indigenous. No case law was found which specifically deals with persecution of indigenous business people of Guatemala. There are decisions by the 9th Circuit Court of Appeals allowing petitions claiming asylum. The Sixth Circuit Court of appeals have affirmed decisions of Board of Immigration (BIA) on the basis that the alien has failed to establish persecution. 

2. Although there is no particular case law where the interpreter speaks another dialect of the same language spoken by the asylum seeker. There is general case law by the Sixth Circuit Court of Appeals stating that there is denial of due process when an asylum seeker is denied a translator who can adequately translate the testimony.

3. There are two Achi dialects in Guatemala. They are Cubulco Achi and Rabinal Achi.

RESEARCH FINDINGS

1. Is there case law dealing with asylum sought by indigenous Guatemalans and indigenous Guatemalan business people claiming that they were persecuted because they were indigenous? 

Generally, “[t]he Attorney General may grant asylum to a ‘refugee,’ 8 U.S.C. § 1158(b), defined as an alien unwilling to return home ‘because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.’” Pascual v. Mukasey, 514 F.3d 483, 485 (6th Cir. 2007) (quoting § 1101(a)(42)(A)). Further, “[a]pplicants who establish past persecution are entitled to a presumption that they cannot return home based upon a well-founded fear of future persecution . . . .” Id.

In Mendoza-Pablo v. Holder, 667 F.3d 1308, 1315 (9th Cir. 2012), the petitioner was a member of an indigenous Mayan ethnic group from Guatemala. The petition was filed to review the decision of BIA denying his application for asylum, withholding of removal, and relief under CAT on the basis that petitioner did not suffer past persecution. The court of appeals for 9th Circuit observed that “[t]he Attorney General may, in his discretion, grant asylum to applicants determined to be refugees within the meaning of the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1).” Id. at 1312. Further, “an applicant has a ‘well-founded fear of future persecution,’ and is therefore eligible for asylum, where he presents proof establishing his past persecution.” Id. at 1313 (quoting Fisher v. INS, 79 F.3d 955, 960 (9th Cir.1996) (en banc)).

The court considered “whether [Petitioner’s] early deprivations growing directly out of the unquestionable persecution of his mother and, more generally, his and his parents’s fear of further persecution growing directly out of the Guatemalan government’s across-the-board persecution of Mayans, constitutes persecution under the INA.” Id. Remanding the case to BIA for further consideration, the court reasoned that:

where a pregnant mother is persecuted in a manner that materially impedes her ability to provide for the basic needs of her child, where that child’s family has undisputedly suffered severe persecution, and where the newborn child suffers serious deprivations directly attributable not only to those facts, but also to the material ongoing threat of continued persecution of the child and the child’s family, that child may be said to have suffered persecution and therefore be eligible for asylum under the INA.

Id. at 1315.

In Duarte de Guinac v. I.N.S., 179 F.3d 1156 (9th Cir. 1999), Petitioner was a member of indigenous Quiche Indian ethnic group of Guatemala. The petition was filed to review the decision of BIA denying petitioner’s application for asylum and withholding of deportation. “In support of his application for asylum, [Petitioner] credibly testified that after his forcible conscription into the Guatemalan army in July of 1994, he was frequently beaten and insulted by superior officers on account of his race.” Id. at 1159.The court considered “whether [Petitioner] established ‘past persecution’ and thereby met the objective requirement.” Id. at 1161.

The court observed that “the petitioner was physically harmed because of his race, religion, nationality, membership in a particular social group, or political opinion.” Id. The court reasoned that “[t]he suffering inflicted on [Petitioner] because of his indigenous heritage was not simply a minor disadvantage or trivial inconvenience. Rather, it amounted to the infliction of suffering or harm upon [one] who differ[s] (in race, religion, or political opinion) in a way regarded as offensive.” Id. at 1162.  Also, the court concluded that the “incidents constitute persecution is further strengthened by the fact that the treatment was conducted by an arm of the Guatemalan government.” Id. Additionally, “[t]he physical harm and threats of harm [Petitioner] suffered on account of his race create a presumption that he is entitled to withholding of deportation.” Id. at 1164. The case was remanded to BIA for further action.

In Ixcoy v. Holder, 416 F. App’x 522 (6th Cir. 2011), the “Petitioner argued that the Guatemalan government persecutes Mayan Indians as leftists, while the guerillas persecute Mayan Indians as pro-government. Petitioner further asserted that he feared returning to Guatemala because he had previously rejected an invitation ‘to be part of a guerilla group or of a gang.’” Id. at 523. The IJ had observed that “the Affidavit of Sister Felix, ‘shows persisten[t,] ingrained discrimination and bias against indigenous peoples, including Mayans, in Guatemala.’ But . . . this evidence “falls short” of the requisite probability of persecution, noting that Petitioner’s fear of ‘general gang violence’ is an insufficient basis upon which to grant relief.” Id. at 525.

The BIA affirmed this decision and observed that “that Petitioner failed to show that the guerillas harmed his father “to inflict harm on [Petitioner], nor does the evidence reflect that [Petitioner] himself was actually attacked or even verbally threatened before he left Guatemala.” Id.  The court of appeals for the 6th circuit observed that “[h]aving failed to establish persecution, Petitioner may obtain relief only by demonstrating a probability of future persecution.” Id. at 528.  Denying Petitioner’s request for review the court held that “[t]he IJ agreed with Petitioner that pervasive discrimination against Mayan Indians exists in Guatemala. but . . . this discrimination must rise to the level of persecution to entitle Petitioner to relief.” Id.

In Escalante-Hernandez v. Holder, 552 F. App’x 508 (6th Cir. 2014), Petitioner was the member of indigenous Mayan group of Guatemala and was forcibly recruited to the Guatemalan military to fight in the civil war. His application for removal was denied by the BIA on the basis that Petitioner “has not shown actual or threatened persecution based on his status as an indigenous veteran of the Guatemalan military.” Id. at 510.  The 6th Circuit Court of Appeals observed that “‘[p]ersecution is an extreme concept that does not include every sort of treatment our society regards as offensive.’” Id. at 511(quoting Japarkulova v. Holder, 615 F.3d 696, 699 (6th Cir.2010)). Further, denying the petition, the court held that “[t]he harassment Escalante experienced was not persecution because it never graduated to specific threats or physical punishments, and, as we have previously held, persecution ‘requires more than a few isolated incidents of verbal harassment or intimidation, unaccompanied by any physical punishment, infliction of harm, or significant deprivation of liberty.’” Id. at 511 (quoting Singh v. Ashcroft, 398 F.3d 396, 401 (6th Cir.2005)).

The court reasoned that Petitioner has “not identified a single incident in which he suffered physical injuries as a result of his status as a Mayan veteran of the Guatemalan military,” and “the record does not compel the conclusion that [Petitioner] faces a clear probability of future persecution because of his status as an indigenous member of the Guatemalan military.” Id. at 511. The court also stated that “to qualify for withholding of removal, he must demonstrate that it is more likely than not that his life or freedom will be threatened if he returns to Guatemala.” Id. Additionally, “[h]e must also establish a nexus between that threat and his status as an indigenous veteran of the Guatemalan military.” Id.

Though there is no specific mention of indigenous Guatemalan business people seeking asylum, there are cases where the indigenous people of Guatemala have sought asylum on the basis of persecution. There is case law decided by the Sixth Circuit Court of Appeals on the claim of asylum by the indigenous people of Guatemala. However, in these decisions, the Court has affirmed the decision of BIA. The main reason for denying asylum was that the alien had failed to establish past or future persecution.

The 9th Circuit Court of Appeals has decided cases allowing the claims of such Petitioners seeking asylum. The Court has reversed the decision of the BIA where the indigenous people of Guatemala were persecuted on the basis of their race and religion. The petitioners belonged to the Mayan ethnic group. The Court has also observed that the indigenous people suffer most of the human rights violations in Guatemala.

2. Is there case law supporting the proposition that where the interpreter speaks another dialect of the same language the asylum seeker is denied due process?

 Generally, “‘[t]he function of an interpreter is an important one … affect[ing] a constitutional right.” Amadou v. I.N.S., 226 F.3d 724, 727 (6th Cir. 2000) (quoting Gonzales v. Zurbrick, 45 F.2d 934, 937 (6th Cir.1930)). Further, the court noted that “‘where the services of an interpreter are needed, his capability should be unquestioned’. . . .” Id. (quoting Gonzales, 45 F.2d at 937 (6th Cir.1930)). The court observed that “[t]he record indicates that the interpreter’s faulty translation directly prejudiced [Petitioner] because the judge and Board denied his application based on the testimony at the hearing.” Id.

Additionally, “where the capability of the interpreter is in question, an alien is denied his due process right to a full and fair hearing when he is ordered deported upon a consideration of the record as a whole.” Id. at 728. Moreover, “an asylum applicant whose testimony was subjected to questionable translation by an interpreter was deprived of his constitutional right to a full and fair asylum hearing where the IJ grounded his adverse credibility solely on the applicant’s testimony.” Daneshvar v. Ashcroft, 355 F.3d 615, 622 (6th Cir. 2004) (citing Amadou v. INS, 226 F.3d 724 (6th Cir.2000)).

There is no case law addressing the particular issue where an interpreter uses a different dialect of the same language spoken by the asylum seeker. There is general case law by the Sixth Circuit Court of Appeals that when an asylum seeker is denied a translator who can adequately translate they are denied due process. The Court has also stated that the function of an interpreter affects the constitutional right of the person seeking asylum. Thus, in the instant case, if there is a great difference between the two dialects of Achi that are not understandable as a whole, then any deportation decision that was made on the basis of the questionable translation should be overturned.

3. How many Achi dilects are there in Guatemala?

Achi Dialects Cubulco Achi, Rabinal Achi.

http://www.ethnologue.com/language/acr

Achi: This Mayan language is spoken in the central area of Guatemala. There are two dialects of Achi: Rabinal (21,000 speakers) and Cubulco (15,000 speakers).

http://centurypubl.com/Languages%20of%20Guatemala.pdf

4. Are there any relevant and trustworthy articles and reports which talk about indigenous business men and leaders being persecuted and killed?

http://www.genocidewatch.org/guatemala.html

http://www.culturalsurvival.org/publications/cultural-survival-quarterly/human-rights-violations-guatemala-hearing-indigenous-voices

http://fpif.org/guatemala-suppressing-dissent-home-abroad/

CONCLUSION

            Thus, there is case law where asylum is sought by indigenous Guatemalans. The asylum is granted where the asylum seeker has established persecution on the basis of being indigenous. Further, there is general case law stating that there is denial of due process when an asylum seeker is denied a translator who can adequately translate the testimony. Additionally, there are two Achi dialects. They are Cubulco Achi and Rabinal Achi.