If you came to the U.S. from Guatemala to get away from some type of mistreatment, it may be possible for you to apply for asylum. This article discusses specific trends and situations for asylum applications for people from Guatemala. To learn about the general eligibility requirements for asylum, see Nolo’s article “Asylum or Refugee Status: Who Is Eligible.”
Despite the large numbers of immigrants leaving Guatemala for the U.S. each year, the number of approved asylum cases from Guatemala is relatively small. According to the Department of Homeland Security (DHS), 536 asylum cases from Guatemala were approved in 2012. This represented 1.9% of approved cases from all countries in 2012.
Although this number seems small, it is an increase from the 480 approved cases in 2011 and the 460 approved cases in 2010.
A large number of the asylum cases that currently come from Guatemala are based on claims of domestic violence. Guatemala has one of the largest rates of domestic violence occurrences in the world. According to the United Nations High Commissioner for Refugees (UNHCR), there are over 40,000 reports of domestic violence in Guatemala each year.
Although the victims of domestic violence are not limited to women, the overwhelming majority of domestic violence asylum cases are filed by women. One tricky aspect to domestic violence cases is that the applicant must show that the domestic violence was a result of persecution linked to race, religion, nationality, political opinion, or membership in a particular social group. If you are a woman applying for asylum based on domestic violence, your best chance of success is to show that you are a member of a particular social group (i.e. “female victims of domestic violence who are unable to leave or obtain protection from the state”).
The trend is moving towards approval of these types of asylum cases, but applicants can often battle for years. One prominent example involves a Guatemalan woman named Rodi Alvarado who battled in the court system for more than a decade and was finally granted asylum in 2009 using the social group "married women in Guatemala who are unable to leave the relationship." Another recent success came from the Board of Immigration Appeals in the case of Matter of A-R-C-G- et al. (26 I&N Dec. 388 (B.I.A. 2014)).
Although not as frequent in recent years, some applicants continue to be successful in winning asylum cases based on persecution reaching back to the 1980s, when the government of President Jose Efrain Rios Montt killed thousands of indigenous Mayans. Although a 1996 peace agreement was supposed to bring an end to the violence, many members of the Mayan indigenous communities continue to suffer persecution. In order to be successful, you will likely need to present evidence that you have a credible fear of persecution because of your race or ethnic background. You can bolster your case by presenting evidence of your membership in a particular Mayan community (such as birth records, club, or tribal membership documents), and that the mistreatment you suffered was based on your Mayan identity. Even if you are not an indigenous Mayan, you may be able to show that your persecutors believed that you were a member of that community, and persecuted you as a result.
Applications for asylum from members of the lesbian, gay, bisexual, and transgendered (LGBT) community who fear persecution are also common. Guatemala does not outlaw homosexual activities, but hate crimes against members of the LGBT community are common, and the government has a poor record of prosecuting these crimes.
There have been many cases filed by LGBT applicants from Guatemala, but the rate of approval for all LGBT asylum applications remains low. One of the largest problems that courts and asylum officers cite when denying these cases is the credibility of the applicant. For example, some applicants apply for asylum based on another theory and only later discuss their LGBT identity, causing asylum officers to doubt their testimony. Often the only evidence of a claim that a person was persecuted on account of his or her sexual orientation is the testimony of the applicant. When the applicant does not address the issue until later in an interview or contradicts what he or she stated previously, the asylum officer or immigration judge (IJ) may find that the applicant lacks credibility.
A large number of people attempt to apply for asylum based on mistreatment at the hands of gangs or criminals.Mara Salvatrucha and Barrio 18 are major gangs in Guatemala, but there are hundreds of other, smaller gangs throughout the country. Applications based on gang-related activity are often unsuccessful because it can be difficult to show that the criminal behavior is linked to race, nationality, political opinion, religion, or membership in a protected social group – but it is possible to win these cases. For example, some IJs have found that applicants have shown persecution based on political opinion where they have actively opposed or demonstrated against gang activities. Other successful applicants based their asylum cases on the particular social group of “individuals who are forcibly recruited into gangs.”
One of the reasons that many applications for asylum are eventually denied is because the IJ or asylum officer did not find the applicant credible. It is important that you do everything possible to be sure that the testimony you provide the judge reflects everything you included in your affidavits, documents, applications, and interviews. Documentary evidence can bolster your claim and dismiss any doubts regarding your credibility. If you are in the U.S. and need documents from Guatemala to support your case, you can ask family members of friends in Guatemala to obtain copies of those documents to send to you.
Try to keep a personal record of the mistreatment you faced in Guatemala. If the persecution you faced was based on your status as an indigenous Mayan, educate yourself on the history of persecution of the indigenous peoples in Guatemala and research successful asylum cases based on that type of persecution. This type of research can help you determine what parts of your particular story will be important to the decision maker in your case. If your persecution was based on gang-related activity, try to write down names of gangs and individuals who participated in the activity and how you were persecuted. Obtain police reports and document any attempts you made to seek help from government officials.
Hiring legal counsel may also increase your chances of success. An attorney experienced in asylum law can help you gather evidence to strengthen your case. Proper preparation and presentation of your asylum case can make the difference between approval or denial.