2023 RLLR 241
Citation: 2023 RLLR 241
Tribunal: Refugee Protection Division
Date of Decision: October 26, 2023
Panel: Priya Kissoon
Counsel for the Claimant(s): Nilofar Ahmadi
Country: Guatemala
RPD Number: TC3-09159
Associated RPD Number(s): N/A
ATIP Number: A-2024-01360
ATIP Pages: N/A
DECISION
[1] MEMBER: Refugee Protect made by XXXX XXXX XXXX XXXX, file number TC3-09159. You are claiming to be a citizen of Guatemala and are seeking refugee protection pursuant to section 96 and 97(1) of the Immigration and Refugee Protection Act, IRPA.
[2] The details of your allegations are found in your Basis of Claim form and narrative in Exhibit 2.
[3] In summary, you allege persecution by the Barrio 18 due to your refusal to pay extortion and reporting their assault against you to the police. You believe that state protection is not available to you, and you would be at risk throughout Guatemala, so there is no viable internal flight alternative.
[4] I find that you are a person in need of protection pursuant to section 97(1)(b) of IRPA.
[5] In making this decision, I have followed the recent jurisprudential guide TC1-05038 because it offers analysis of subparagraph 97(1)(b)(2) of the Act in claims for protection based on gang targeting and general criminality.
[6] Your personal identity and citizenship are established on a balance of probabilities with copies of your Guatemalan passport, ID card and birth certificate, which I found to be reliable.
[7] Your main fear is the violence by a criminal organization and this fear does not have an nexus to any of the grounds listed in section 96. S, I have assessed the aspect of your claim under subsection 97(1) the Act.
[8] I find your testimony credible. It was straightforward, detailed, consistent. There were no indications of embellishment or exaggeration. I questioned you about your experiences before 2022 and you indicated that you personally have no threats or risk to your life in Guatemala. But your risk changed dramatically when you and your family began their own business in XXXX of 2021.
[9] You have established the existence of the business through an affidavit made in XXXX 2022 of co-ownership between you and your mother and the sale of the business in XXXX of 2022, and your testimony about the business, its location and how it was run its employees was very credible.
[10] In XXXX of 2022, you testified that your mother received a phone call from a person she identified as someone widely known as XXXX XXXX (ph) who belonged to Barrio 18. You testified that his membership in the gang was no secret. He had threatened your odds at school with extortion in 2018, and you also indicated he had the number 18 tattooed on his neck. Your mother was threatened to pay extortion owing to the perceived success of your new family business, which employed two (2) people to XXXX XXXX and the business also sold XXXX XXXX. Your mother responded to the threats by disconnecting the business phone. Now, there was an escalation to the harm you experienced within a few weeks of the payment, you were personally confronted at the business and physically assaulted and according to your Basis of Claim narrative a hand grenade was also thrown into your shop.
[11] You corroborated this incident through affidavits parents, the doctor who tended to your injuries. Affidavits from your employees and denunciation to the police. There were no issues on the face of these documents to cause me to doubt the provenance or authenticity and I give them full weight to establish your allegations of harm.
[12] After taking some action to protect yourselves, such as relocating and stopping the business. You testified that you continued to be sought for the extortion payment. You also testified that you learned that the police officer who initially took your statement was associated with XXXX XXXX, when they collaborated to confront and beat you in the parking lot of your XXXX in XXXX 2022, while demanding that you pay extortion. During this incident, they told you that they would find and kill you wherever you moved because of the denunciation against XXXX XXXX.
[13] Now, after considering your testimony and the extensive, reliable, corroborative evidence, which I have only selectively mentioned in this decision, I find you were a credible witness, and I believe what you have told me. You have established your fear of the Barrio 18, your fear of being targeted, I find you have a forward-facing risk in Guatemala owing to your opposition to Barrio 18 by not paying extortion and complaining to the police.
[14] Your own account is consistent with the information in the country reports and the Board’s National Documentation Package for Guatemala. The Barrio 18 is described as a very active and very brutal organization. The report found at Item 7.1 of the NDP says that Guatemala remains among the most dangerous countries in the world, endemic poverty and abundance of weapons, a legacy of societal conflict and the presence of organized criminal gangs all contribute to violent crime. Guatemala’s alarmingly high murder rate is driven by narco trafficking activities and gang related violence.
[15] The UNHCR eligibility guidelines found at Item 1.4 of the NDP, describes the problem of gangs in Guatemala at some length. It describes the kinds of activities that gangs are involved in, including extortion, which is the principal source of income, and if anyone refuses to meet the demands or comply with the gangs, it is construed by the gang members as serious acts of resistance, and so those people are subjected to threats and violence, and the violence escalates each time that a person refuses to comply, often these people end up being killed. Criticizing the gang, refusing a request by a gang member and reporting the gang to the police are taken seriously and they react with severe retribution or punishment. I find for these reasons that your claim is supported by the objective basis.
[16] I have also considered whether the police would protect you against Barrio 18 and find that they either cannot or will not. You have described your efforts to get protection from the police, but they did nothing. In the country reports confirm that the Guatemalan police are ineffective, corrupt and often in league with the gangs.
[17] So, at 1.7, it says that the police lacks sufficient personnel and training to accomplish their mission, they suffer from a lack of supplies and often their investigations fail to result in arrest, much less conviction. And the country reports indicate that the police are often infiltrated or in partnership with gangs and as you have also testified, you saw the ring leader who extorted and attacked you in police uniform, accompanied by the officer to whom you reported the attack.
[18] The UNHCR in Item 1.4, says that police officials are reported to be involved in extortion, kidnapping for ransom, trafficking in persons and other abuses and crimes against the local population. Corrupt members of the Guatemalan police force are reported to have been involved in the theft and resale of drug shipments. Given this, I find that you have established that you would not be afforded adequate state protection in Guatemala.
[19] Now, gang members who threatened you are affiliated with the Barrio 18, and I reviewed the National Documentation Package and note that the UNHCR eligibility guidelines in Item 1.4 indicates the overwhelming majority of local gangs in Guatemala are affiliated with either Barrio 18 or the Mara Salvatrucha. On page 20 of the same item, it states that Barrio 18 and Mara Salvatrucha live primarily from extortion and that they kill those who do not pay. I find that the evidence establishes that the agents of harm have the means to locate you throughout Guatemala.
[20] The UNHCR report to page 58 states where the agents of persecution are non-state agents, consideration must be given to whether the persecutor is likely to pursue the claimant in the proposed area of relocation. Consider during the small territorial size of Guatemala and given the ability of the gangs and other organized criminal groups to operate countrywide and indeed internationally, both independently and as a part of international criminal networks, a viable internal flight alternative for relocation is unlikely to be available to individuals at risk of being pursued by such actors. It is particularly important to note the operational capacity of certain organized structures, particularly the MS and B18 and the larger drug trafficking structures, to carry out attacks in any part of Guatemala, irrespective of territorial control of a specific zone.
[21] Item 7.11 at page 24 also indicates that in the small northern Triangle area of Central America countries “gangs dominate large cities and have moved into many smaller towns. Turf is fiercely protected, and strangers are treated as possible enemies. In more rural areas, there may be no jobs or access to education or health care.” The same item indicates that, “One (1) impact of the displacement on the people who have moved or are forced to move is greater exposure to extortion and threats and extortion, as well as other kinds of crime.”
[22] I have found you to be a credible witness and find that the evidence establishes on a balance of probabilities that you were the victim of extortion by gang members affiliated with Barrio 18. You have established that you were seriously assaulted owing to your failure to pay extortion, and you were subsequently threatened with death owing to your failure to pay extortion in combination with your denunciation to the police. I find that these circumstances establish that the agents harm are likely motivated to pursue you in the IFA locations. Considering your particular circumstances, I find that there is no safe place for you to relocate in Guatemala. Therefore, there is no viable internal flight alternative for you.
[23] And after assessing all of the evidence carefully on a balance of probabilities, you do face a risk to life throughout Guatemala. Accordingly, pursuant to subsection 97(1) of the Immigration and Refugee Protection Act, I find that you are a person in need of protection, and I accept your claim.
——— REASONS CONCLUDED ———