Hernan Gonzalez-Posadas v. Attorney General United States
781 F.3d 677
3rd Cir.2015Background
- Hernan Gonzalez-Posadas, a Honduran national, was removed in 2012, reentered in 2013, expressed fear of return, and applied for withholding of removal and CAT protection after an asylum officer referred his case.
- He alleged two grounds for fear: extortion/recruitment threats by MS-13 (the Maras) and family/community mistreatment because he is perceived as gay; he also testified to two rapes by a cousin.
- At the IJ hearing he testified he is gay, described gang threats, extortion, homophobic slurs, and past rapes; he reported one rape to police years later and said police were unhelpful or dismissive.
- Documentary evidence showed violence and discrimination against LGBT persons in Honduras but also a government victims unit to investigate such crimes.
- The IJ found credibility problems (evolving story and inconsistencies), concluded the harms did not establish persecution on account of sexual orientation or a cognizable social group based on resisting gang recruitment, and denied CAT relief for lack of governmental acquiescence.
- The Board affirmed; Gonzalez-Posadas petitioned for review, challenging only the Board’s conclusions on past persecution and on future persecution risk tied to homosexual status.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Gonzalez-Posadas suffered past persecution on account of sexual orientation | He was verbally and physically mistreated, raped, extorted, and threatened with death because he was perceived as gay; this shows past persecution. | Agency: record shows gang motives included extortion and recruitment; rapes were isolated criminal acts not motivated by sexual orientation. | Denied — substantial evidence supports agency finding that sexual orientation was not one central reason for past persecution. |
| Whether he faces a clear probability of future persecution on account of sexual orientation | His past mistreatment, reinforced country conditions and his now-uncloseted status make future persecution more likely than not. | Agency: country evidence does not compel conclusion of systematic, pervasive persecution; government established a special victims unit; record does not show pattern or individualized risk on account of sexual orientation. | Denied — substantial evidence supports agency decision that he did not show more-likely-than-not future persecution. |
| Cognizability of proposed group: "young Honduran men who resisted gang recruitment" | (Abandoned) | Agency: group lacks social distinction independent of alleged persecution. | Agency and court affirmed group is not cognizable; petitioner did not challenge this. |
| CAT relief: whether government would acquiesce to torture | He fears torture/rape by gangs and government acquiescence. | Agency: no showing of governmental acquiescence or non-speculative risk of torture. | Denied — petitioner did not establish government consent or likelihood of torture. |
Key Cases Cited
- Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993) (definition and limits of "persecution")
- INS v. Stevic, 467 U.S. 407 (1984) (burden to show more-likely-than-not future persecution)
- Senathirajah v. INS, 157 F.3d 210 (3d Cir. 1998) (standard for withholding of removal burden)
- INS v. Elias-Zacarias, 502 U.S. 478 (1992) (need to prove persecutor's motive)
- Ndayshimiye v. Att'y Gen., 557 F.3d 124 (3d Cir. 2009) (one-central-reason standard and mixed-motive discussion)
- Abdille v. Ashcroft, 242 F.3d 477 (3d Cir. 2001) (random criminal violence not necessarily persecution)
- Lie v. Ashcroft, 396 F.3d 530 (3d Cir. 2005) ("pattern or practice" standard requires systematic, pervasive, or organized persecution)
- Miah v. Ashcroft, 346 F.3d 434 (3d Cir. 2003) (routes to prove future persecution: individualized risk or pattern/practice)
- Amanfi v. Ashcroft, 328 F.3d 719 (3d Cir. 2003) (personal disputes do not establish persecution)
- Singh v. INS, 134 F.3d 962 (9th Cir. 1998) (generalized lawlessness insufficient for persecution)
- Sandie v. Att'y Gen., 562 F.3d 246 (3d Cir. 2009) (standard of review: review IJ and BIA; defer to substantial evidence)