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Keywords

tortappealburden of proofwillasylumvisa
willfelonyasylumvisa

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Lopez de Hincapie v. Gonzales

Facts

Maria Aracelly Lopez de Hincapie, a Colombian national, entered the United States as a tourist in 2000. After overstaying her visa and being charged with immigration violations, she sought asylum, claiming persecution due to her political opinion and family membership. She testified about threats received after her family members were killed, allegedly by a guerilla group, but could not identify the source of the threats.

The petitioner, Maria Aracelly Lopez de Hincapie, then fifty-four years of age and a resident of Chinchina Caldas, Colombia, entered the United States as a tourist on February 15, 2000. Although her B-2 tourist visa expired six months later, she remained in the country. During the summer of 2000, she was arrested in New York after trying to obtain a fraudulent green card.

Issue

Did the petitioner establish a sufficient nexus between her fear of persecution and a statutorily protected ground to qualify for asylum?

Did the petitioner establish a sufficient nexus between her fear of persecution and a statutorily protected ground to qualify for asylum?

Rule

To qualify for asylum, an alien must establish their status as a refugee, unable or unwilling to return to their homeland due to persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

To qualify for asylum, an alien had to establish her status as a refugee, that was, a person who was unable or unwilling to return to her homeland because of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

Analysis

The court analyzed whether the threats faced by the petitioner were connected to her political opinion or family membership. It concluded that the evidence did not support a finding that the threats were motivated by a statutorily protected ground, as the petitioner could not identify the source of the threats and the context suggested they were likely motivated by extortion.

The IJ credited much of this tale but nonetheless denied the petitioner's entreaties for withholding of removal and relief under the CAT. In his bench decision, he found that the petitioner had failed to establish a nexus between her fear of physical harm and any statutorily protected ground.

Conclusion

The court upheld the BIA's determination that the petitioner failed to establish a nexus between the threats and a protected ground, thus denying her petition for review.

It follows inexorably that we have no principled choice but to uphold the BIA's determination that no sufficient nexus existed between the threats and some protected ground. This means, of course, that we must allow the rejection of the petitioner's asylum claim to stand.

Who won?

The Board of Immigration Appeals prevailed because the court found that the petitioner did not meet the burden of proof required to establish a nexus for her asylum claim.

The BIA disagreed with the IJ's conclusion that bribery of a public official constituted an aggravated felony as that term is used in the INA. Thus, the BIA considered and rejected the petitioner's asylum claim on the merits, concluding that the petitioner had failed to furnish evidence sufficient to establish a nexus between the reported threats and a statutorily protected ground.

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