Sulmy Garcia-Milian v. Loretta E. Lynch
825 F.3d 943
| 8th Cir. | 2016Background
- Sulmy A. Garcia Milian and her minor sons, Guatemalan nationals, entered the U.S. without inspection and conceded removability; they applied for asylum, withholding of removal, and CAT protection.
- In Guatemala, local gangs repeatedly extorted Milian’s uncle; after he refused to pay they beat him and later shot him dead in May 2014 in front of family members, threatening to kill the family if they did not pay.
- Milian testified she did not report the murder to police, did not know the gang’s identity, and believed the attack was for money, not because of protected characteristics.
- The IJ found Milian credible but denied relief; the BIA dismissed the appeal, adding its own reasoning; the court reviews both decisions for substantial-evidence support.
- Petitioners argued persecution on account of membership in their family, and alternatively sought CAT protection based on government inability or unwillingness to control gangs and alleged police complicity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petitioners suffered past persecution on account of membership in a particular social group (family) | Milian: gang targeted her uncle and family; family is a cognizable social group | DHS/BIA: gang targeted uncle for extortion, criminal motive not a protected ground | Denied — record shows extortion motive, not persecution on account of family membership |
| Whether petitioners have a well-founded fear of future persecution on account of family membership | Milian: threats to "shoot each one of us one by one" show individualized future risk to family | DHS/BIA: threats unclear as to which family members; no particularized threat to petitioners | Denied — fear not shown to be particularized or on account of family membership |
| Whether petitioners qualify for withholding of removal | Milian: heightened standard satisfied because asylum standard met | DHS/BIA: asylum not established, so withholding fails | Denied — cannot meet more rigorous withholding standard without asylum showing |
| Whether petitioners are eligible for CAT protection due to police complicity or government acquiescence | Milian: Guatemalan government unable/unwilling to control gangs; police complicit or willfully non‑intervening | DHS/BIA: general inability insufficient; Milian never informed authorities of fears after the murder; no evidence of government acquiescence | Denied — no evidence public officials were aware and willfully non‑intervening as required for CAT |
Key Cases Cited
- Quiñonez-Perez v. Holder, 635 F.3d 342 (review standard for BIA adopting IJ and adding reasons)
- Ming Ming Wijono v. Gonzales, 439 F.3d 868 (simple criminal intent is not a protected ground)
- Francois v. I.N.S., 283 F.3d 926 (requirement of particularized persecution directed at applicant)
- Khrystotodorov v. Mukasey, 551 F.3d 775 (withholding of removal has more rigorous standard than asylum)
- Marroquin-Ochoma v. Holder, 574 F.3d 574 (more-likely-than-not standard for CAT)
- Juarez Chilel v. Holder, 779 F.3d 850 (government incapacity does not alone establish willful blindness or acquiescence for CAT)