Jose Castro Perez v. Eric Holder, Jr.
516 F. App'x 327
5th Cir.2013Background
- Castro Perez, a Guatemalan citizen, seeks withholding of removal under 8 U.S.C. § 1231(b)(3)(A)
- He alleges a well-founded fear of future persecution due to homosexuality
- Past persecution allegedly by his brother, aimed at harming Castro Perez’s safety and his brother’s political career
- BIA denied withholding; the government’s willingness to prosecute the brother for attempted murder of a mayor was cited
- The court reviews BIA factual findings for substantial evidence and applies a rebuttable presumption for past persecution if proven
- Court denies petition for review, holding no past persecution or likelihood of future persecution shown
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Castro Perez showed past persecution or future fear on account of sexual orientation | Castro Perez suffered past persecution by brother; presumption applies for future persecution | Record shows no extreme persecution and no government action; presumption not triggered | Denied; no past persecution or more likely than not future persecution established |
Key Cases Cited
- Zhu v. Gonzales, 493 F.3d 588 (5th Cir. 2007) (standard of review for BIA decisions relating to withholding of removal)
- Silwany-Rodriguez v. INS, 975 F.2d 1157 (5th Cir. 1992) (substantial-evidence review for BIA findings)
- Chen v. Gonzales, 470 F.3d 1131 (5th Cir. 2006) (substantial-evidence standard; avoid reversal absent compelling contrary evidence)
- Tesfamichael v. Gonzales, 469 F.3d 109 (5th Cir. 2006) (past persecution requires government or uncontrol by government)