updated 5/12/2006 5:31:32 PM ET 2006-05-12T21:31:32

A federal appeals court has ordered an immigration board to consider whether some Guatemalans could qualify for asylum over fear of persecution for being rich.

Ruling in a case of a couple whose asylum claim was denied, the 2nd U.S. Circuit Court of Appeals in Manhattan said a judge should have considered testimony that they had been threatened with kidnapping and that police did not help them.

Jose Godofredo Ucelo-Gomez, 37, and Ana Mariela Espana-Espinosa, 29, say they are not affluent by U.S. standards — he has been a restaurant worker in the United States and she a child care worker — but they say they would be targets in Guatemala.

When they applied for asylum, Espana-Espinosa noted that in 1996 her sister was kidnapped for ransom by an organized political gang, shot in the leg and released the following month without a ransom payment.

Espana-Espinosa said the captors had since threatened the couple, forcing them to keep moving and finally flee to the United States. They entered the country in August 2001 with forged travel visas and false names.

She said she feared she would be threatened or killed if she returned because of class hatred harbored by gangs like the one that abducted her sister.

An immigration judge denied the application, saying affluent Guatemalans did not make up a "readily identifiable social group."

Persecution fueled by class rivalry?
But on Wednesday, the three-judge appeals panel ordered the Board of Immigration Appeals — a step higher than an immigration judge — to decide whether there is a legitimate social group of affluent Guatemalans who suffer persecution fueled by class rivalry in an impoverished society.

When that question is answered, the appeals court said it can decide whether the couple — who live in Stamford, Conn., with their 10-month-old child — can stay in the United States.

While judges have allowed asylum based on race, religion, nationality, social group and political opinion, the couple's lawyer, Roberto Tschudin Lucheme, said he hasn't found any claims similar to this one.

"You could say, 'Gosh, people will come up with anything to get asylum.' On the other hand, you have to look at what is going on in a particular country at that point in history," Lucheme said.

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