Damaris Flores De Mundo v. William Barr, U. S. Att
18-60200
| 5th Cir. | May 17, 2019Background
- Petitioner Damaris Del Carmen Flores de Mundo, a Salvadoran national, sought withholding of removal and CAT protection after allegedly witnessing an MS-13 gang crime.
- IJ denied withholding of removal and CAT relief; BIA affirmed. Flores de Mundo petitioned for review in this Court.
- For withholding of removal, she asserted membership in a particular social group: “Young adult Salvadorian women from Puerto El Triunfo who have been witness to crime activities by the MS-13 Gang.”
- BIA concluded the proposed group was not sufficiently socially distinct to qualify as a particular social group and that she failed to show persecution “because of” that protected ground.
- For CAT relief, BIA upheld IJ’s finding that petitioner did not prove the Salvadoran government would instigate or acquiesce to her torture despite evidence of police/gang corruption.
- Court reviewed BIA and IJ decisions (de novo for legal issues; substantial-evidence for factual findings) and denied the petition for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petitioner’s proposed group qualifies as a particular social group for withholding of removal | Flores de Mundo argued witnesses to MS-13 crimes (young adult Salvadoran women from Puerto El Triunfo) are a distinct social group | Government argued the group is not socially distinct and is defined by risk rather than immutable or socially distinct characteristics | BIA and Court: group not shown to be sufficiently socially distinct; withholding claim denied |
| Whether persecution was "because of" membership in the proposed group | She claimed gang threats/harassment stemmed from her status as a witness | Government said harm resulted from general gang violence and resistance, not protected-ground nexus | Court: record does not compel finding of nexus; withholding denied |
| Whether petitioner proved government instigation or acquiescence to torture for CAT relief | Flores de Mundo cited general police/gang corruption to show likely government acquiescence | Government argued evidence did not show state would acquiesce specifically to her torture | BIA and Court: record insufficient to compel finding of state acquiescence; CAT relief denied |
| Whether BIA erred by not addressing IJ’s separate conclusions about whether harm rose to torture or persecution | Flores de Mundo argued BIA should have addressed IJ’s substantive findings on severity | Government said BIA need not revisit those IJ findings once it rejected nexus and state-action elements dispositive | Court: no error—the dispositive adverse findings made further review unnecessary |
Key Cases Cited
- Le v. Lynch, 819 F.3d 98 (5th Cir. 2016) (standard of review: generally review BIA; review IJ when it affects BIA decision)
- Chen v. Gonzales, 470 F.3d 1131 (5th Cir. 2006) (substantial-evidence standard for factual findings)
- Hernandez-De La Cruz v. Lynch, 819 F.3d 784 (5th Cir. 2016) (particular social group must be socially distinct from general population resisting gangs)
- Morales v. Sessions, 860 F.3d 812 (5th Cir. 2017) (evidence of corruption must be sufficient to show state acquiescence to torture in applicant’s circumstances)