Castellanos Garcia v. Ashcroft

U.S. Court of Appeals for the Ninth District

2004 U.S. App. LEXIS 9477

Petitioners Mario Rene Castellanos Garcia, his wife and five children, appeal from the Board of Immigration’s affirmation of the Immigration Judge’s (“IJ”) denial of the Petitioners’ application for asylum and withholding of removal.  Upon review, the U.S. Court of Appeals for the Ninth District remanded based upon its finding that the IJ’s adverse credibility finding was not supported by substantial evidence.

The Petitioners, natives of Guatemala, were imprisoned, threatened with death, and tortured by the military due to their cooperation with United Nations Inspection Mission to Guatemala.  Evidence of past persecution creates a presumption of future persecution.  Because the IJ did not consider evidence as to changes in Guatemala since the Petitioners had fled, the Ninth Circuit found that the government did not overcome the presumption of future persecution.   To overcome such a presumption, the government needs to provide evidence that shows by a preponderance of the evidence that the Petitioners’ fears of future persecution are unfounded.

The Ninth Circuit court of Appeals remanded the case to determine whether the government is able to rebut the presumption of future persecution if the Petitioners were to return to Guatemala.