Delmy Carolina Gomez-Garcia v. Jefferson B. Sessions, III
861 F.3d 730
| 8th Cir. | 2017Background
- Gomez-Garcia, a Salvadoran national and former president of a local community group (ADESCOLP) that opposed MS-13, entered the U.S. unlawfully in 2014 and applied for asylum after conceding removability.
- She and a fellow board member reported a 2013 break-in of their office; after a gang member was arrested, both received threats and later dropped charges due to violent threats against them.
- Gomez-Garcia continued anti-gang activities; in Feb. 2014 a nephew with MS-13 ties warned MS-13 would kidnap her daughter; Gomez-Garcia and her daughter left El Salvador in March 2014.
- An expert testified gangs target those who obstruct or report them, that threats are carried out, and internal relocation in El Salvador is impractical and risky.
- The IJ found Gomez-Garcia and the expert credible but denied asylum, withholding, and CAT relief, concluding the harms did not amount to persecution, lacked sufficient nexus to a protected ground, and that her fear of future persecution was not objectively reasonable; the BIA affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BIA engaged in impermissible fact‑finding | Gomez‑Garcia: BIA impermissibly credited facts the IJ did not analyze (Feb. 2014 threats) | Government: BIA merely restated and adopted IJ findings; no new fact‑finding | Denied — BIA did not engage in impermissible fact‑finding; restatement of IJ findings was permissible |
| Whether the harms/ threats were motivated by a protected ground (nexus) | Gomez‑Garcia: Membership/leadership in ADESCOLP and anti‑gang activity made her a target | Government: Threats arose from reporting the burglary — to silence witnesses — not because of protected status | Denied — substantial evidence supports BIA/IJ that threats were retaliation for reporting, not based on protected ground |
| Whether her fear of future persecution is well‑founded (objective reasonableness) | Gomez‑Garcia: Continued gang reach and specific threats (kidnapping daughter) make future harm likely; internal relocation impossible | Government: Length of time without harm to her, to co‑complainant, or family reduces objective reasonableness; relocation feasible | Denied — fear not objectively reasonable given lack of subsequent harm to her, co‑complainant, or family and passage of time |
| Asylum eligibility (overall) | Gomez‑Garcia: Credible testimony and country conditions show persecution risk warranting asylum | Government: Even accepting credibility, legal elements (persecution, nexus, well‑founded fear) not met | Denied — substantial evidence supports denial of asylum (and thus withholding/CAT not pursued on appeal) |
Key Cases Cited
- Gutierrez‑Vidal v. Holder, 709 F.3d 728 (review of BIA adopting IJ findings)
- Matul‑Hernandez v. Holder, 685 F.3d 707 (reviewing IJ as part of final agency action)
- Fofana v. Holder, 704 F.3d 554 (substantial evidence standard for asylum denials)
- Falaja v. Gonzales, 418 F.3d 889 (same)
- Saleheen v. Holder, 618 F.3d 957 (BIA restatement of IJ findings permissible)
- Chak Yiu Lui v. Holder, 600 F.3d 980 (same)
- Marroquin‑Ochoma v. Holder, 574 F.3d 574 (need careful attention to circumstances of alleged persecution)
- De Brenner v. Ashcroft, 388 F.3d 629 (same)
- Gomez v. Gonzales, 425 F.3d 543 (to overturn lack of protected‑ground finding record must compel contrary result)
- Zhuang v. Gonzales, 471 F.3d 884 (well‑founded fear requires subjective and objective components)
- Perinpanathan v. INS, 310 F.3d 594 (objective reasonableness explained)
- Alyas v. Gonzales, 419 F.3d 756 (lack of harm over time undercuts fear)
- Krasnopivtsev v. Ashcroft, 382 F.3d 832 (similar‑situated individuals remaining unharmed diminishes reasonableness)
- Bernal‑Rendon v. Gonzales, 419 F.3d 877 (family remaining unharmed reduces fear)
- Lemus‑Arita v. Sessions, 854 F.3d 476 (passage of years can render fear speculative)