The Sixth Circuit has reluctantly affirmed the denial of asylum to a child rape victim. The Guatemalan government rescued the child from her kidnappers, but also ordered her grandmother to secure her a visa to the United States.
“As an initial matter, although K.H. was placed in a refuge and scheduled for regular check-ins with authorities, there is no indication any such visits occurred. Accordingly, it is not clear from the record what protection, if any, K.H. was provided after she left the refuge. Moreover, the record indicates that K.H. was directed to apply for a humanitarian visa to be with her mother, as well as for safety reasons. These factors, thus, do not support the BIA’s conclusion. To the contrary, these factors actually support K.H.’s argument. But the BIA did adequately consider the other factors that weigh strongly in the government’s favor: for example, the police’s timely and effective investigation, the efficient prosecution of K.H.’s perpetrators, and the lengthy punishments imposed. Thus, although the evidence is not as strong as the BIA indicated, the BIA reasonably concluded that some of the evidence presented, with respect to the government’s response, demonstrated the Guatemalan government was not unwilling or unable to control K.H.’s persecutors and protect her.“
“Again, we reiterate that the government’s response to K.H.’s kidnapping is not dispositive. But we cannot say that the BIA’s decision here was not supported by substantial evidence given just how much effort the Guatemalan government expended in trying to control K.H.’s persecutors and protect her. While we may have reached a different result—and found that the government’s response did not outweigh the record evidence demonstrating the struggles of the Guatemalan government to protect minors and indigenous citizens—that is not the standard.”
The full text of K.H. v. Barr can be found here: