Rosa Gutierrez v. Eric H. Holder, Jr., 713 F.3d 375

Background

De Castro-Gutierrez is a Colombian citizen who entered the U.S. as a B-2 visitor in 2004 and overstayed.
She conceded removability after a 2010 Notice to Appear.
She sought asylum, withholding of removal, and CAT relief; asylum was denied on timeliness, so only withholding and CAT were addressed.
She claimed persecution and future harm tied to her connection with the Donado family and wealth in Colombia, including threats by private actors related to her alleged social group.
The IJ / BIA rejected both past persecution and future fear, and held relocation would not be unreasonable; CAT relief was also denied based on the same record.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether relocation defeats withholding of removal eligibility	De Castro-Gutierrez argues relocation is unreasonable given threats.	Government/agency held relocation feasible; evidence supports continued threats if returned.	Relocation requirement satisfied; substantial evidence supports denial of withholding.
Whether there is past persecution by private actors and/or government failure to protect	Threats and harassment constitute past persecution.	Incidents are too minor to constitute persecution; not a cognizable group or government-enabled harm.	Insufficient to establish past persecution under governing standards.
Whether the Donado family constitutes a cognizable social group and supports future fear	Membership in Donado family is a cognizable, particular social group.	Donado family is too amorphous; not a protected social group; not shown to be persecuted by government or unable to protect.	Donado family not cognizable; no clear probability of future persecution on this basis.
Whether CAT relief is warranted based on the same evidence as withholding	CAT relief should follow from withholding evidence.	Same evidence yields failure under CAT as well.	CAT denied as based on the same record; no CAT relief.

Key Cases Cited

Mompongo v. Gonzales, 406 F.3d 512 (8th Cir. 2005) (clear-probability standard for withholding; persecution framework)
Regalado-Garcia v. INS, 305 F.3d 784 (8th Cir. 2002) (persecution concept requires threat or harm by gov't or unable to protect)
Menjivar v. Gonzales, 416 F.3d 918 (8th Cir. 2005) (government inability/ unwillingness to protect required for persecution)
Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985) (social group defined with particularity and social visibility)
Matter of S-E-G, 24 I. & N. Dec. 579 (BIA 2008) (social visibility and particularity criteria for social groups)
Davila-Mejia v. Mukasey, 531 F.3d 624 (8th Cir. 2008) (social group and persecution analysis precedent)
In re A- M-E & J-G-U, 24 I. & N. Dec. 69 (BIA 2007) (social-group definition guidance (wealth-based group rejected))
Costanza v. Holder, 647 F.3d 749 (9th Cir. 2011) (wealth-based social group analysis; amorphous groups not cognizable)
Uli v. Mukasey, 533 F.3d 950 (8th Cir. 2008) (private-actor persecution requires more than just government difficulty to control)
Quomsieh v. Gonzales, 479 F.3d 606 (8th Cir. 2007) (private-actor persecution not per se persecution without harm)
Lengkong v. Gonzales, 478 F.3d 859 (8th Cir. 2007) (robbery as criminal act not persecution)
McMullen v. INS, 17 I. & N. Dec. 542 (BIA 1980) (government's responsibility to protect from private violence)
Galina v. INS, 213 F.3d 955 (7th Cir. 2000) (private-actor persecution and state protection framework)
Turay v. Ashcroft, 405 F.3d 663 (8th Cir. 2005) (standards of review for withholding CAT)