Evelyn Gomez Villatoro v. Jefferson Sessions III
685 F. App'x 242
| 4th Cir. | 2017Background
- Evelyn Gomez-Villatoro (and derivative minor son) entered U.S. on B-2 visa in 2012, overstayed, and applied for asylum, withholding, and CAT protection; claims arise from murders and threats to her father and brother allegedly by MS-13 in Honduras.
- Father (July 2011) and brother (June 2012) were killed after receiving threats; Gomez testified threats related to their preaching against gangs and refusal to pay extortion "war tax."
- Administrative record includes Gomez’s and her mother’s affidavits alleging religion-based threats; other Honduran affidavits and the pastor’s statement refer to extortion/wealth motives, not preaching.
- IJ found Gomez not credible on the religious-motivation theory, concluded extortion (family wealth) motivated threats, found she was a member of a particular social group (immediate family) but denied asylum and withholding; denied CAT relief for lack of state acquiescence.
- BIA affirmed the IJ, citing Cordova for proposition that greed/extortion-based threats are not on account of family membership; Gomez petitioned for review.
- Fourth Circuit: affirmed adverse credibility re: religious claim; reversed BIA on social-group/asylum theory (finding misapplication of Cordova and related precedent), remanded for further proceedings on asylum/withholding; denied CAT claim. Concurring judge would have denied review of the social-group claim as waived.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Credibility of religious persecution claim | Gomez: father/brother were threatened/killed for preaching; she fears return | Gov: record shows extortion motive; corroboration supports nonreligious motive | Court: IJ and BIA credibility finding upheld; religious claim denied |
| Asylum based on membership in immediate family (social group) | Gomez: she was threatened because of family ties; family membership is central reason for her targeting | Gov: threats were for extortion/wealth, not on account of family membership; BIA relied on Cordova | Court: reversed BIA—misapplied Cordova; Gomez’s fear based on family membership is plausible and remand required |
| Procedural waiver of social-group claim | Gomez: argued social-group claim before BIA and asks court to consider to avoid miscarriage of justice | Gov: Gomez waived by failing to raise in opening brief | Court: waived rule excused—rare miscarriage of justice because BIA misapplied precedent and issue is dispositive; court reviews merits |
| CAT and withholding of removal | Gomez: government/police in Honduras unable/unwilling to protect her; CAT relief warranted | Gov: record lacks evidence of state consent/acquiescence; country reports show reforms; IJ may consider credibility | Court: CAT claim denied (substantial evidence supports no state acquiescence); withholding remanded for reconsideration after asylum determination |
Key Cases Cited
- Cordova v. Holder, 759 F.3d 332 (4th Cir.) (family association can support a well‑founded fear even if other family members were targeted for nonprotected reasons)
- Crespin-Valladares v. Holder, 632 F.3d 117 (4th Cir.) (substantial‑evidence review of gang motivation and nexus issues)
- Hernandez-Avalos v. Lynch, 784 F.3d 944 (4th Cir.) (maternal relationship can make threats directed at a child also be ‘‘on account of’’ family membership)
- Marynenka v. Holder, 592 F.3d 594 (4th Cir.) (asylum well‑founded fear standard is less stringent than withholding standard)
- Lizama v. Holder, 629 F.3d 440 (4th Cir.) (insufficient evidence of government acquiescence to gang violence for CAT relief)
- Mulyani v. Holder, 771 F.3d 190 (4th Cir.) (substantial‑evidence review of CAT and related factual findings)
- Munyakazi v. Lynch, 829 F.3d 291 (4th Cir.) (adverse credibility findings reviewed under substantial‑evidence standard)
- Li Fang Lin v. Mukasey, 517 F.3d 685 (4th Cir.) (remand required to reconsider withholding when asylum reversal follows)
- Ai Hua Chen v. Holder, 742 F.3d 171 (4th Cir.) (reviewing standards when BIA adopts IJ decision and supplements it)
- Nken v. Holder, 585 F.3d 818 (4th Cir.) (courts may only affirm agency on the grounds actually relied upon by the agency)