American Software Mogul Denied Asylum in Guatemala

If you’re reading this on a PC, there’s a good chance that your anti-virus protection is based on a program designed by John McAfee.  Mr. McAfee, 67, was a pioneer of anti-virus software, and the company that bears his name is today one of the largest anti-virus companies in the world.  At one time, his net worth exceeded $100 million, but his fortune dwindled and in 2008, he moved from the U.S. to Belize.

There, Mr. McAfee apparently led an increasingly extreme lifestyle, which included drugs, prostitutes, and feuds with his neighbors.

An American seeking asylum in Guatemala is kind of like a child giving presents to Santa Claus.

It’s seems Mr. McAfee also had an uneasy relationship with the authorities in his new country.  In April of this year, the Belize Gang Suppression Unit raided his house looking for a Meth lab.  Mr. McAfee was briefly detained and then released.

His current odyssey began on November 12, 2012 when police started searching for him as a “person of interest” in connection to the murder of his neighbor in Belize, another expatriate American, who was shot to death.

Mr. McAfee fled to Guatemala and–like any respectable computer guy–started a blog to chronicle his ordeal.

After almost a month on the lam, the Guatemalan authorities apprehended Mr. McAfee for entering the country illegally, and prepared to deport him to Belize.  Mr. McAfee promptly requested asylum.  Just as promptly it seems, the Guatemalan authorities denied his request.  According to the Washington Post:

McAfee’s legal team said they were preparing to appeal the denial of asylum to the country’s constitutional court, a process that could give McAfee perhaps another day or two in Guatemala.  The court would have to issue a decision within 48 hours.

For his part, Mr. McAfee appealed for his blog readers to please “email the President of Guatemala and beg him to allow the court system to proceed, to determine my status in Guatemala, and please support the political asylum that I am asking for.”  He adds, “Please PLEASE be very POLITE in your communications, and I thank you.”  (Mr. McAfee is blogging from jail in Guatemala, which he called a “groundbreaking activity”).

As of this writing, Mr. McAfee’s asylum case is still on appeal.  But it seems to me that under the international law definition of asylum, Mr. McAfee simply does not qualify.  First, to receive asylum, a person must demonstrate that he has a well founded fear of persecution (as opposed to prosecution).  “Persecution” is (usually) some type of severe physical harm. There is no indication that Mr. McAfee will be prosecuted in Belize, let alone persecuted. He is currently a person of interest in a criminal investigation. This is a far cry from being detained and/or physically harmed.

Possibly, the murder investigation is a pretext for persecuting Mr. McAfee.  Indeed, he claims that there is a “political vendetta” against him because he did not “donate enough money to the government.”  Even if this is the case, he must show that the persecution is “on account of” his race, religion, nationality, particular social group or political opinion.  Unless there is more to the story, failure to “donate” money to the government would not fall into one of these protected categories.

Finally, even if Mr. McAfee faces persecution in Belize on account of a protected ground, he is still not eligible for asylum.  The reason is that he is a citizen of the United States.  Asylum is available to people who face persecution from their home country; not from a third country. To avoid persecution, Mr. McAfee could (theoretically at least) receive protection from the U.S. government. In his blog, Mr. McAfee states that he asked the United States Embassy for help, but they told him that there was nothing they could do.

While I think that Mr. McAfee cannot qualify for asylum, I certainly believe that the government of Guatemala should not return him to Belize if there is reason to believe that he will be persecuted or tortured in that country. The UN Convention Against Torture (which Guatemala ratified) would prevent Mr. McAfee from being sent to Belize if he would be tortured there.

While his claims seem far-fetched (the president of Belize called them “bonkers“), Mr. McAfee, like everyone else who fears harm if he is deported, should not be removed without due process of law.  Obviously, asylum law and the UN Convention Against Torture cannot be used to subvert the criminal law.  But if someone fears harm in a country, he should not be sent to that country until his claim is reviewed on the merits.  In this case, before he is sent anywhere, Guatemala and the United States (through its embassy) should ensure that Mr. McAfee does not face persecution or torture if he is returned to Belize.

Guatemala Massacre Survivors Reunited After 30 Years

In 1982, during the Guatemala civil war, a squad of soldiers led by Lt. Oscar Ramírez Ramos attacked the town of Dos Erres.  They killed over 250 people, mostly women and children.  

Lt. Ramírez Ramos spared a 3-year-old boy named Oscar, and brought the child home to live with him (the phenomena of persecutors adopting the children of their victims is not as uncommon as you might think–the New Yorker recently had an interesting article about how this played out during Argentina’s Dirty War).  After Lt. Ramírez Ramos died in an accident, his family continued to raise Oscar as their own.  The family never told him about his past, and he grew up idolizing his “father,” the man who killed his mother and eight siblings.

Tranquilino Castañeda reunited with his son and grandchildren.

Oscar’s real father, Tranquilino Castañeda, was away from home during the attack, and for 30 years, he mourned the death of his wife and children, including Oscar.  But last year, an investigation by Guatemalan prosecutors revealed that one son–Oscar–had survived.  A DNA test last August confirmed that the two men were father and son, and they were reunited via Skype.

Oscar had come to the United States in 1998, and has been living here illegally since that time.  After they learned about each other, Oscar’s father came to the U.S., and the pair reunited after 30 years apart:

“Yesterday I had the chance to see him in person. It is quite different from seeing him on the computer or on pictures,” Tranquilino said. The Guatemalan farmer has green eyes and the leathery skin of someone who has worked in the fields all his life. He is a man of few words.  Tranquilino and Oscar, who is 33, met for the first time at a New Jersey airport, just a few hours after Castaneda landed there from Guatemala. [Oscar], his son, traveled to New Jersey from Framingham, Mass., a blue-collar suburb of Boston where he lives with his wife and four children.

After he learned the truth about his family, Oscar decided to seek asylum in the U.S. based on his fear that he would be a target in Guatemala.  “The military retains great power in his native land and most atrocities from the 36-year civil war, which ended in 1996, have gone unpunished.”  He has a pro bono attorney, R. Scott Greathead, and his asylum interview is set for June 21, 2012. 

Given that his case is so high profile, he probably has a good chance for success.  But one issue will be that his father has been living in Guatemala for all these years and has testified against the soldiers responsible for the Dos Erres massacre (one of the soldiers was sentenced to 6,060 years in prison).  If the father lives in Guatemala in relative safety, it may be difficult for Oscar to demonstrate that he will face harm.

It seems to me that another basis for him to remain in the U.S. is humanitarian asylum (I imagine he is also eligible for Cancellation of Removal if his case ends up before an Immigration Judge).  Under humanitarian asylum, Oscar could remain in the United States if he demonstrates “compelling reasons for being unwilling or unable to return to the country arising out of the severity of the past persecution.”  It may be a bit novel, but the facts of the case–his family’s massacre, his abduction by the man (at least partly) responsible for their deaths, and growing up with that man’s family–may constitute compelling reasons why Oscar cannot return to Guatemala. 

With humanitarian asylum, even if it is now safe for Oscar to return to Guatemala, he can obtain asylum based on the severity of the persecution he previously suffered.  What is interesting here is that Oscar did not know until recently that he had been persecuted.  Generally, asylum seekers are entitled to the benefit of the doubt, and here–where the harm was so severe–humanitarian asylum seems appropriate.