Alvizures-Gomes v. Lynch
2016 U.S. App. LEXIS 13328
1st Cir.2016Background
- Petitioner Omar Ivan Alvizures-Gomes, a Guatemalan national, entered the U.S. unlawfully in 2011, conceded removability, and applied for asylum, withholding of removal, and CAT protection.
- He testified that he refused gang recruitment in Guatemala, received three threatening letters, and later fled to the U.S. claiming fear of future persecution and torture.
- IJ found the petitioner generally credible but denied relief for failure to prove refugee status or that Guatemalan authorities would acquiesce to torture; BIA affirmed.
- Petitioner argued persecution was based on his anti-gang political opinion and, alternatively, membership in a particular social group (repatriated Guatemalans who left family in the U.S.).
- For CAT relief, petitioner relied on prior police inaction and country-condition reports to show likely government acquiescence to gang torture.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Nexus to political opinion for asylum | Refusal to join gangs expressed an anti-gang political opinion and was reason for persecution | Threats reflected gangs’ motive to recruit/financial motives, not political opinion | BIA/Judge: No nexus; record lacks evidence gangs targeted him for a political opinion |
| Cognizable particular social group | "Repatriated Guatemalans with family in the U.S." are a social group targeted as perceived "wealthy" | Proposed group not socially visible or sufficiently particular; similar groups already rejected | BIA/Judge: Group not cognizable; petitioner failed social visibility and particularity tests |
| Withholding of removal (higher burden) | Same facts support withholding because risk of persecution is substantial | Same reasons show asylum claim fails and burden unmet | Court: Withholding claim fails because asylum claim failed and burden is higher |
| CAT protection (government acquiescence) | Police failure in petitioner’s incident plus country reports show likely government acquiescence to torture | Isolated police inability to act and general country conditions do not prove government consent/acquiescence specific to petitioner | BIA/Judge: No specific evidence of acquiescence; CAT claim denied |
Key Cases Cited
- Elias-Zacarias v. INS, 502 U.S. 478 (nexus requires protected ground to be at least one central reason for persecution)
- Mayorga-Vidal v. Holder, 675 F.3d 9 (mere refusal to join a gang, without more, does not establish political opinion nexus)
- Carvalho-Frois v. Holder, 667 F.3d 69 (social group must be socially visible and sufficiently particular)
- Mendez-Barrera v. Holder, 602 F.3d 21 (particularity and social visibility requirements; withholding/CAT principles)
- Chhay v. Mukasey, 540 F.3d 1 (CAT requires government instigation, consent, or acquiescence)
- Garcia-Milian v. Holder, 755 F.3d 1026 (police awareness/failure to prosecute alone insufficient to show acquiescence)