Recent Seventh Circuit Precedent: Nerio Perez v. Garland, No. 22-2434 (7th Cir. Oct. 3, 2023)

Edelyn Seleny Nerio Perez and her minor daughter, citizens of Guatemala, sought asylum and withholding of removal in the United States. Nerio claimed persecution on account of her Mayan ancestry, specifically by her partner's nephew, Walter. The immigration judge found Nerio credible but denied her applications, stating she failed to prove the Guatemalan government was unable or unwilling to protect her. The Board of Immigration Appeals affirmed this decision, leading to this petition for review.

Holding:

The petition for review was denied. The court held that there was substantial evidence supporting the immigration judge's determination that Nerio failed to establish the Guatemalan government was unable or unwilling to protect her from persecution.

Important Cases Relied Upon by the Court:

• Silais v. Sessions: Clarified the burden on an asylum applicant to show that the government is unable or unwilling to protect them when the persecutor is a private actor.
• Vahora v. Holder: Discussed the standards for evaluating whether a government is unable or unwilling to protect an asylum seeker.
• Dai v. Garland: Provided guidance on reviewing immigration judge's orders when the Board of Immigration Appeals affirms without opinion.
• Osorio-Morales v. Garland: Reiterated the necessity for an asylum seeker to show the government's inability or unwillingness to control the persecutor.
• Almutairi v. Holder: Another case emphasizing the burden on asylum seekers to prove government's inability or unwillingness to protect.
• Chavarria-Reyes v. Lynch: Discussed the exhaustion requirement for issues raised on judicial review of immigration cases.

Key Arguments from Both Parties:

Petitioners (Nerio and her daughter): Argued that the immigration judge applied a wrong and more stringent standard to evaluate the Guatemalan government's ability to protect Nerio. They contended that substantial evidence does not support the conclusion that the government could protect her, highlighting her experiences and general conditions of corruption and violence in Guatemala. Respondent (Attorney General): Argued that the immigration judge applied the correct standard and that his decision was supported by substantial evidence. They emphasized that Nerio did not initially report Walter’s misconduct and that the government responded when she did, issuing a protective order.

Implications of the Case:

This case underscores the high burden on asylum seekers to prove that their home government is unable or unwilling to protect them, even when they have credible fears of persecution. It also highlights the importance of exhausting all arguments at the Board of Immigration Appeals level before seeking judicial review. Additionally, the case demonstrates the court's deference to the immigration judge’s findings, especially when they are based on substantial evidence. Finally, it reaffirms the principle that generalized country conditions alone may not be sufficient to establish eligibility for asylum or withholding of removal, particularly when there is evidence of some government intervention.