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Federal Appeals Court in St. Louis Refuses to Reopen Asylum Case

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In 2000, Enrique Lopez-Mendez, who is a native and citizen of Guatemala, entered the U.S. without inspection. Three years later, Lopez-Mendez was charged with removability by the Department of Homeland Security (DHS). As a defense to deportation, Lopez-Mendez sought asylum, claiming that he had received serious threats of coercion from gang members and former guerillas in his native Guatemala.

The immigration judge denied Lopez-Mendez asylum, as well as the discretionary relief known as withholding of removal. The alien appelaed, but the Board of Appeals affirmed the immigration judge’s decision and dismissed his appeal.  The Board also denied his motion to reopen his removal proceedings. First, the court pointed to the fact that past fear of gang members, who never physically harmed him, did not rise to the level of past persecution. Second, the Board found that Lopez-Mendez failed to establish a connection between his fear of being persecuted and the reason why he was treated differently than other Guatemalans. The Board concluded that there was no reason to believe the gang members would seek him out, nor that the Guatemalan government would persecute him or was unwilling to control the situation. Finally, under the United Nations Convention Against Torture, there was not enough evidence to suggest Lopez-Mendez would be tortured upon his return to Guatemala by gang members or the government. Subsequently, an unsuccessful motion was filed in an attempt to reopen the removal proceedings. Lopez-Mendez argued that his circumstances had changed due to ongoing threats. Despite producing two anonymous letters of threats, apparently neither contained a clear motivation and the court decided that reopening the proceedings would not result in a different outcome.

The case was appealed to the Eighth Circuit Court of Appeals in St. Louis, Missouri. Because it was reviewing the case on the stringent "abuse of discretion standard," the Court only reviewed the BIA’s order of denying Lopez-Mendez’s motion to reopen the asylum proceedings due to untimely filing of the petition. After reviewing the petition, the Court concluded that while the letters could be entered as new material evidence that were unavailable previously, they still failed to establish a nexus between the threats and a ground for asylum or withholding of removal. The Court affirmed the previous court’s decision and dismissed Lopez-Mendez’s petition seeking to reopen his removal proceedings.

If you are in removal proceedings and believe that you might be entitled to asylum, withholding or CAT protection, please contact us at 314-961-8200.

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