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Gomez-Garcia v. Sessions

United States Court of Appeals, Eighth Circuit

June 28, 2017

Delmy Carolina Gomez-Garcia; Yoselin Hissella Sosa-Gomez Petitioners
Jefferson B. Sessions, III, Attorney General of the United States[1] Respondent

          Submitted: March 7, 2017

         Petition for Review of an Order of the Board of Immigration Appeals

          Before WOLLMAN, MELLOY, and SHEPHERD, Circuit Judges.

          MELLOY, Circuit Judge.

         Delmy Carolina Gomez-Garcia petitions for review of the Board of Immigration Appeals's ("BIA") decision affirming the immigration judge's ("IJ") denial of Gomez-Garcia's request for asylum.[2] For the following reasons, we deny the petition.


         Gomez-Garcia is a native and citizen of El Salvador. She unlawfully entered the United States on April 5, 2014. After the Department of Homeland Security issued a notice to appear, Gomez-Garcia conceded her removability and filed an application for asylum.

         In a hearing before an IJ, Gomez-Garcia testified that she was the president of a community development organization in El Salvador, Asociacion de Desarrollo Comunal - Los Planes ("ADESCOLP"). The organization addressed gang problems in the area, including the drugs and violence resulting from MS-13 gang activity. In her role, Gomez-Garcia went door to door gathering signatures for the creation of a local police department. In response, MS-13 defaced the ADESCOLP office with graffiti and twice broke into the office. The second break-in occurred in June 2013. Gomez-Garcia and another ADESCOLP board member, Matias Guevara, witnessed gang members taking ADESCOLP's electronics. They filed a complaint with the police and, after a gang member was arrested, both Gomez-Garcia and Guevara began receiving threats from the suspect's family. Gomez-Garcia and Guevara dropped the charges after threats to cut off Guevara's tongue or kill him and to make Gomez-Garcia "pay."

         Gomez-Garcia testified that she continued speaking out against the gangs after the June 2013 incident. In February 2014, Gomez-Garcia's nephew, who has ties to MS-13, told her that MS-13 was going to kidnap her daughter out of revenge.[3] In March 2014, the suspect in the June 2013 break-in destroyed Guevara's motorcycle, beat up his brother, and again threatened to cut off Guevara's tongue.

         Gomez-Garcia and her daughter left El Salvador in late March 2014. Her nephew has since disappeared, and no further harm has come to Guevara. Gomez-Garcia testified that she fears MS-13 will kidnap her daughter or harm her if she returns to El Salvador. She also testified that there are MS-13 members throughout the country so she cannot relocate.

         Patrick McNamara, a professor of Latin American History at the University of Minnesota, testified that there is serious gang violence throughout El Salvador. The gangs, McNamara explained, target anyone who obstructs their operations, witnesses a crime, or works with the police. This includes police, military, and civilians. McNamara further testified that MS-13 would target Gomez-Garcia if she returns to El Salvador and that gangs carry out their threats no matter how much time has passed. Finally, McNamara testified that it is uncommon to relocate within El Salvador and that relocating would call attention to the person.

         The IJ found both Gomez-Garcia and McNamara credible. The IJ then found that Gomez-Garcia did not qualify for asylum because the harm she suffered in El Salvador did not rise to the level of persecution, there was not a sufficient nexus between the harm and a protected ground, and Gomez-Garcia failed to establish a well-founded fear of future persecution. As a result, the IJ found that Gomez-Garcia also had not carried her burden of establishing that she qualified for withholding of removal or relief under the Convention Against Torture. The BIA affirmed the IJ's decision. Gomez-Garcia petitions for review. The BIA's decision was the final agency decision, see 8 U.S.C. § 1101(a)(47)(B)(i), and we have jurisdiction to consider the appeal under 8 U.S.C. § 1252(a)(5).


         "We review the BIA's decision, as it is the final agency action, but 'to the extent that the BIA adopted the findings or reasoning of the IJ, we also review the IJ's decision as part of the final agency action.'" Gutierrez-Vidal v. Holder, 709 F.3d 728, 731-32 (8th Cir. 2013) (quoting Matul-Hernandez v. Holder, 685 F.3d 707, 710-11 (8th Cir. 2012)). We review decisions on asylum "under the 'substantial evidence' standard, upholding the decision if it is 'supported by reasonable, substantial, and probative evidence' based on the ...

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