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First Circuit Denies Guatemalan Citizen NACARA Relief, Asylum Claim

By Dyanna Quizon, Esq. on December 07, 2011 | Last updated on March 21, 2019

The First Circuit Court of Appeals denied review of a Board of Immigration Appeals' (BIA) decision to deny asylum to a Guatemalan citizen, finding that the petitioner was not a member of a protected social group or faced persecution in his home country. In addition, the Court denied NACARA relief because he was apprehended at the time of entry.

Gorgonio Sicaju-Diaz, who currently resides in Rhode Island with his wife and three children, was taken into custody by federal immigration officials over twenty years ago in Texas. Three months after officials initiated deportation proceedings, he filed an application for asylum, but failed to appear for his hearing. An immigration judge issued a deportation order in absentia, but it took ten years before he filed a suspension of deportation and his case was reopened.

In his asylum application, Sicaju-Diaz argued that since he was a wealthy individual returning to Guatemala from a lengthy stay in the United States, he was particularly susceptible to "extortionate and/or kidnapping demands" and thus had a well founded fear of future persecution. He also alleged that he had been threatened by a man whom he had detained as a member of a civilian group designed to counteract police corruption and ineffectiveness in Guatemala.

The Court, however, found that the evidence did not indicate that wealthy Guatemalans faced persecution because of their particular class. Further, the threat against him was made more than two decades ago from one individual in a large country. Sicaju-Diaz also did not demonstrate any further threats or contact from the alleged gang member.

As to Sicaju-Diaz's request for suspension of removal under the Nicaraguan Adjustment and Central American Relief Act (NACARA), the Court determined that he had been apprehended at the time of entry, citing the Border Patrol report which explained he had "effected illegal entry into the United States by wading the Rio Grande River" and Sicaju-Diaz's own affidavit stating: "I was arrested upon entry by the Border Patrol."

Further, the Court reasserted that the determination of apprehension at entry by the Attorney General is final and not subject to review by any court.

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