Appellate Court Cautions Against Ethnocentrism

 In Removal Defense

A recent court decision provides an important lesson for anyone preparing a defense in immigration court. It is the case of Saban-Cach v. the Attorney General of the United States, decided by the U.S. Court of Appeals for the Third Circuit on January 25, 2023. Mr. Saban-Cach is from Guatemala. He grew up in the Montufar neighborhood of Sacatepéquez. He is of Kaqchikel Mayan indigenous ethnicity. He stood out from most other people in his home country because of his name, the language he speaks, his physical appearance, and the way he dresses. 

Beginning when Mr. Saban-Cach was 15 years old, members of the gang known as “MS-13” began to target him because of his ethnicity. It soon became clear that the ethnic intimidation was a recruiting tool. Gang members told him that the abuse would end once he joined them. He never did. They threw stones at him and kicked him, often leaving cuts and bruises. He fled to another city that was 90 minutes from his home and he continued to experience threats there. Once, when he returned home to visit his parents, he was beaten and left unconscious.

Mr. Saban-Cach attempted to flee Guatemala for the United States several times. Twice, he was turned away at the border and sent home. The third time, in 2015, he was able to enter and the U.S. and remain until 2020, when he was apprehended by immigration authorities. He asked an Immigration Judge (IJ) to grant “Withholding of Removal,” a form of relief that is similar to asylum. 

An important issue in his case was whether he suffered “past persecution.” The IJ found that he had not because, at least in part, he never sought any professional medical care for any of the injuries that he had sustained at the hands of the MS-13 gang members. The Court of Appeals disagreed. According to the Court, the fact that one chooses not to seek professional medical care should not be confused with the need for professional medical care. In other words, an IJ should not assume that an injury is not serious simply because the injured person chose not to go to the hospital. 

Here are the Court’s own words on this subject:

“We have previously cautioned IJs and the BIA against ethnocentric evaluations of petitioners’ resources. Petitioners primarily come from countries in the poorest and most dangerous regions of the world. Any presumption that they enjoy the same kinds of resources as their adjudicators is shortsighted and unfair. Unless the record supports it, IJs and the BIA should not assume that their own views of appropriate medical care and its ready accessibility make up a universal reality.”

This is an important reminder for anyone who offers evidence of country conditions in immigration court. It is important in any asylum case or withholding of removal case. But it is also important when we ask a judge to grant a waiver based on hardship to a qualifying relative. 

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