*1 VILLATORO; Evelyn Jossely GOMEZ Villatoro,
Christer Jasuat Gomez
Petitioners, Attorney III, B.
Jefferson SESSIONS
General, Respondent.
No. 15-2576 Appeals, Court of
United States
Fourth Circuit. 6, 2016
Argued: December
Decided: March *2 Nzedu, Jasper Jimmy
ARGUED: JAS- ASSOCIATES, PER ATTORNEYS & PLLC, Aléxandria, Virginia, for Petition- Tyler, ers. Julia UNITED STATES DE- JUSTICE, Washington, PARTMENT OF D.C., Respondent. Mizer, BRIEF: Benjamin
ON C. Princi- pal- Deputy General, Attorney Assistant Verby, Litigation J.E. Russell Senior Counsel, Antoun, Monica of Immi- Office gration Litigation, UNITED STATES JUSTICE, Washing- DEPARTMENT OF D.C., ton, for Respondent. KING, SHEDD, FLOYD,
Before Judges. Circuit binding Unpublished opinions are not precedent this circuit.
FLOYD, Judge: Circuit Evelyn Petitioners Gomez-Villatoro (“Gomez”) son, and her minor C. J. Go- mez-Villatoro, of Hon- citizens and natives duras, rejected asylum petitions had (IJ) Immigration Judge both (BIA). Immigration Appeals Be- Board the BIA’s a mis- represents cause decision reverse, (INA), precedent, Nationality gration of our Act application grant remand instructions U.S.C. 1252. asylum petitions. B.
I. Honduras, part fairly In was Gomez A. family. well-off a work- owned people employed eight farm that six to son, citizens and and her Gomez minor approximately and had 200 head cattle Honduras, entered the United natives hogs. in addition several chickens and 25, 2012, September or on States about Gomez and her also were active years nineteen old and when was Gomez Evangelical in members Church They was months en- her son three old. Sonaguera community, their located in required on B-2 tourist visas that tered According Department within Colón. on or depart them the United States Gomez, led her father the men’s fellow- 25, December both before that ship group, preach he overstayed visas. On or Janu- about against to pay was Christian faith 2013, 7, filed ary application Gomez money to also gangs warned the men and minor asylum, including her as a deriv- son support gangs. not to Gomez further applicant.1 seeking asy- In ative addition to 2010, in alleged that beginning when she lum, withholding, removal sought Gomez seventeen, family began was she and her protection as well as the Convention receiving MS-13, from threats members (CAT).2 appeared Against Torture Gomez in prominent gang Honduras. Gomez her on her and her to base claims father’s alleged that it and testified was because of activities, on her religious brother’s and religion-based against these threats made family. During pen- in her family, ensuing her and deaths her dency application, gave of her birth Gomez brother, return States, she feared in the who a second child United to Honduras. is a citizen birth. issues, procedural
After initial At her hearing, Gomez Gomez eventually on Au- appeared hearing threatening IJ her father received 19, 2014, gust demanding Cross- before David W. texts he Baltimore, Maryland. stop preaching, The IJ de- land showed to father brother, then application nied her full. her brother then Gomez and which appealed the BIA which told her about. subse- dismissed father was 5, July appeal single-judge quently written order and 2011—when Go- killed on 3, 2015, affirming opinion years old—allegedly by the mez was December seventeen 2012, now petitions April IJ’s decision. this members of after MS-13. relief, death, jurisdic- and we exercise her father’s Gomez came visa, pursuant tion 242 of the Immi- United on a then to Section States tourist 17,491-92 (dai S17,486, applications Cong. As deriv- Gomez's son’s are all also Rec. claims, (Senate 27, 1990) of her ative remainder understandings ly ed. Oct. only memorandum will refer Gomez. ratification); Foreign Reform and Affairs Restructuring No. Act Pub. L. 105- Against 2. United Nations Convention Torture (imple 2822-23 Stat. Cruel, Inhuman, Degrading Other C.F.R, (im menting legislation); §-1208.18 Punishment, signa opened Treatment or plementing regulations). 10, 1984, (entered ture Dec. 1465 U.N.T.S. 85 20, 1994); into force in United States Nov. see returned to Honduras. When asked brother used receive. She testified for asylum point, messages she did file stopped when her told “thought the IJ that she that after phone mother changed numbers. that,, calmer,” things going to be told IJ that she was not they that she think going “didn’t anyone aware of else community receiving continue threats.” A.R. 96.3 6,000 approximately people being threat- hearing Gomez also testified at her ened gangs, nor aware against began preaching anyone specifically her church of be- killed, gangs once her father people being tween 40 threatened soon after her brother also received by the gangs. IJ took issue with threatening messages preach- text about *4 assertion. to explain He asked Gomez why ing. messages These not texts seen were her father and brother be would preaching either, but by Gomez instead to the shown to the of members the church about a friend, mother, who told brother’s Gomez’s problem gangs they such that ultimately told Gomez. Gomez’s broth- who brought significant upon trouble them- 18, 2012, was then killed er on June also if selves there was never issue with of allegedly by Following members MS-13. gangs place, in the first to which Gomez brother, the death of Gomez’s Gomez’s replied young that she was the at time and mother the entered United alone. States simply was unaware. request Gomez’s mother filed an at specifically, The asked Gomez then that then entered the time. Gomez coun- your family targeted “W[ere] above, try, as on or about Sep- mentioned your—the for money your, of because tember living you enjoyed standard of and what the to IJ that she feared testified may fairly high of have been standard of the persecution by members MS-13 living to and success?” which Gomez re- brother, of gang because her father and “No, it, it plied, was because my what gang that members] and “what want- [the father preaching was about.” A.R. 114. to all of do him us punish ed and being prepared testify to Despite the preachings.” because of the—of his A.R. hearing, testify Gomez’s mother did asked, 102. The IJ then “So asylum hearing her because she had they you kill to now?” which Gomez following IJ. week before the same Howev- there, replied, if go they we back “Because er, she a written did submit affidavit angry my father are because used what also behalf Gomez. Gomez submitted about, there, preach go if back record, her own sworn affidavit into the they’re going kill all well.” Id. us testimony addition to own live before her also related the IJ that members affidavits, IJ. In Gomez and her stopped leaving once MS-13 when family mother both stated that re- after father killed school had been they all be ceived threats next dying, told that “the one gangs, pay if Gomez’s father did not going be 97-98. She also [her].” A.R. by the IJ once her and broth- the threats motivated told father were ¶¶ deceased, 9-10, religious preaching. A.R. 154 er were her mother received the ¶¶ threatening They text her father 10-11. also both stated that the messages same parties appeal. "A.R.” 3. Citations to the refer the Adminis- in this proceedings trative Record of the below filed [Gomez], nor messages according to has the gangs and sent at odd called Indeed, they exactly problem. according church “stating times had a knew were,” [Gomez], ef- family [she] unaware [the members] from they gang people soon if forts to recruit they gangs would see ¶ ¶ high A.R. 154 school. unaware pay. She refused extorting persons mother also stated that activities Gomez’s therefore, community; from the Court threats that she and does path testimony her children “would follow the credi- find [they] pay plausibility did not ble for death husband lack [her] the broth- gangs] had demanded.” A.R. the father and the death of [the ¶ allegedly er 162 16. related Court, however, preaching. The does contained also affidavits record majority note that unlike the vast evangelical from the head Honduras, people living church, as well as friends and wealthy family seems to rather [a] be Honduras. pastor stated any extortion efforts were [thus] country, mother was forced leave family’s] perceived [the offer that Gomez’s father but money, ability wealth [and] *5 pastoral brother were killed due to any activities. religious because activities. See A.R. 207. Similarly, neigh- Therefore, the Court that does find pay referred to the refusal to bors respondent’s father tax,” religious mentioned “war and never alleged any on account of killed 213, 219, 225, 230, See 236. activities. A.R. they It is not preaching volunteer did. did, however, neighbors Some note that plausible nobody the church else targeted by to be continued targeted, especially the would have been 225, ties. See A.R. gangs family due targeted. minister would not have been 230, Finally, 236. aunt—her fa- A.R. 54. ther’s Gomez’s father sister—stated and brother killed because Turning group asylum to the social properties.” A.R. desired “take claim, finding IJ make a Go- 242. mez particular “is a member group, of a is a member testimony, Based the record family.” IJ 53. found A.R. testimony regarding IJ found Gomez’s “the threat awas clear credible, rejected preaching not criminal of the economic extortion because religion-based asylum The ex- IJ claim. standing in the com- [Gomez]’s holding in his that he plained “simply d[id] munity any religious and not it plausible” not find that Gomez’s father activities, and the does not find that preach resisting and brother about the action of the in extort- members light extortion efforts Gomez’s testi- ing money members would extor- mony any she was unaware nexus, resulting grant create anyone in the targeting tion efforts else asylum to A.R. 54. [Gomez].” church. A.R. 53-54. The IJ fur- holding: ther his Finding out failed make that Gomez [I]ndeed, organiza- of the reasoned she the minister IJ tion, higher presumably have would not able to meet the bur- ... be .,. demonstrating withholding of re- den allowed the head men’s moval, preach. no that claim. problem, He has had and denied A.R.
217 CAT, IJ then denied relief under finding the IJ’s findings respect to with the CAT showing “there is no government that the claim. A.R. 6. any Honduras would cause [Gomez] II.
harm,
any showing
nor is there
that the
government
previously
Honduras
not or
have
could
We
elucidated the stan-
provide protection
would not
for reviewing
dard
[Gomez]
decision
the BIA
were she to
return Honduras.” Id.
appeal
from an
dismisses
opinion:
written
appeal to
On
the BIA declined
When,
here,
adopts
the BIA
and af
credibility
disturb
IJ’s
and factual
firms the
supplements
IJ’s decision and
findings
respect
with
to the motivation for
it
its
opinion,
own
both
review
threatening
killing
Gomez’s father and
Holder,
Ai
decisions.
Hua Chen v.
BIA
brother. The
concluded that the IJ’s
(4th
2014).
Cir.
We review
finding that extortion
motivation
evidence,
findings
factual
for substantial
clearly
“not
sup-
erroneous as it is
treating
any
them as conclusive “unless
ported by
testimony.”
A.R.
adjudicator
reasonable
would be com
also
finding
found the IJ’s
pelled
contrary.”
conclude
about motivation supported by substantial
(quoting
record,
U.S.C.
evidence in
including
the fail-
1252(b)(4)(B)).
legal
We review
conclu
ure of
affidavit
submitted
Gomez—
sions de
Crespin-Valladares
novo.
v.
other than her own
mother’s—to
Holder,
religion
preaching
indicate
as a basis for
uphold
We must
the BIA’s deci
being targeted,
her family
referring
sion
“manifestly contrary
unless
only to criminal extortion as a basis for
law and .an
abuse
discretion.”
Tassi
targeting, and her father and brother be-
failure to
extortion mon-
*6
BIA
if
abuses its
it
discretion
ey.
4-5.
BIA additionally upheld
A.R.
fails “to offer a
for
explanation
reasoned
ruling
respect
the IJ’s
with
the social
decision, or
it
its
if
or
distorts]
disre
group asylum
again concluding that
gard[s] important
appli
aspects
no asylum
warranted because Gomez
.was
may
cant’s claim.” Id.
not
We
affirm the
demonstrate,
not
religion
“did
or
[that]
basis,
BIA’s
decision on
conceivable
familial connection were central reasons
only
but rather
grounds upon
“the
extortion
demands
death
agency
which the
those
acted
5-6.
threat.” A.R.
upon which its action can be sustained.”
support
In
of both of these determina-
Holder,
(4th
818,
v.
Nken
585 F.3d
822
tions, the BIA
opinion
cited our
in Cordova
2009)
Cir.
(quoting
Chenery
v.
SEC
Holder,
(4th
2014),
v.
218 race, religion, nationality, alien’s mem applies.” Id. at deference Skidmore[5] Holder, or particular group, social bership (citing n.3 Martinez 1231(b)(3)(A); § (4th 2014)). 902, political opinion.” Id. see Cir. The ex 909-10 1208.16(b). § applicant “An “depends also 8 C.F.R. deference
tent our “whohas to establish the less strin thoroughness upon the evident failed consideration, proof fear standard of validity gent of its rea well-founded BIA’s necessarily required relief is consistency with earlier and soning, its to' also unable establish entitlement and all those factors pronouncements, later Marynenka v. withholding removal.’” power persuade.” give it the 2010) (internal omit quotations and alterations ted). (quoting Mukasey, Anim v. 2008)).
III. standards, applicant “the Under both race, religion, IJ and the BIA argues that the must establish national (1) she was in a incorrectly ity, membership determined social religious moti- respect group, political opinion or will be credible alleged persecuting was behind the one central she least reason vation 1158(b)(l)(B)(i) killing applicant.” threatening and 8 U.S.C. (2) added); brother; subject (emphasis Crespin-Valla she was see also dares, 127; C-T-L-, re I. persecution due 632 F.3d at In (B.I.A. 2010). consisting group N. Dec. particular social & family. arguing immediate addition decision, govern- propriety B. proce- submits that Gomez has ment also being primary focus Despite claim
durally group on her social defaulted is no herein, petition, there meritorious For the reasons error. religious perse claim fear of based claim hold that Gomez’s successful, makes claim that cution. Gomez we will waive the no. error of her default, persecuted herself will be finding that a miscar- procedural rather, religion; claims that because riage justice occur. would otherwise *7 religious her brother’s her father’s and activities, persecuted. ar she will be She A. gues provides the basis for a asylum An applicant must demonstrate asylum claim for successful and withhold “a persecuted that he or was or has removal, disagree. but we on ac well-founded fear held, race, gang As of “the religion, nationality, mem we have issue count a classic factual bership particular group, [is] in social or members’ motivations a governed by the evi- opinion.” question” U.S.C. substantial political 1158(b)(1). Crespin-Valladares, §§ 1101(a)(42)(A), In order to standard. dence (citations omitted). at eligibility withholding of re F.3d 127-28 Similar- establish moval, credibility finding is also ly, must show that “the an “adverse applicant subject to the substantial evidence stan- or freedom be threatened alien’s life Lynch, country] Munyakazi alien’s home because dard.” [the (1944). Co., 89 L.Ed. & 323 U.S. S.Ct. Skidmore v. Swift IJ made a credibil- and brother were due to their determination, found that ity and Gomez’s refusal to extortion. None these testimony based on credible statements, including pastor’s, cor- record before him. The based this credi- roborate that father or broth- bility implausibility determination er led a group men’s their church and testimony of Gomez’s that her father and publicly preached against activ- because of threatened ity or paying extortion. religious activities, not because of the and (citations omitted). A.R. 5 The credibility family’s among relative wealth and status determinations both the IJ and BIA community church in general. and the supported evidence, are by substantial testimony implausible The IJ found the In light affirm. of the adverse credibili- to identify any- because Gomez was unable issue, ty finding on this Gomez cannot targeted religious one else because be- make out a claim of a well-founded fear liefs, including pastor, because the based on religious persecution, and we by affidavits submitted Mends and deny petition as to this issue. to pay all indicated a failure extortion obtain and a desire to the Gomez C. basis for properties as the MS-13 threatening ultimately killing Gomez’s
father and brother. reaching Before merits argues IJ failed to that the credit petition, second issue in Gomez’s we must youth being as a basis for unaware procedural first address a gov issue. The in her church people the situation of ernment in its brief opposition asserts that community, argument but this misses the opening dealt brief with the overwhelming weight point. The of the evi- religious aspects of her supports dence the record IJ’s de- although family, referred never by as the BIA. It termination affirmed specifically argued that the erred determination, clearly erroneous as rejecting group asylum her social claim. As single person aside Gomez or result, government submits “to testimony her mother submitted Go- argue the extent persecu Gomez did persecuted mez’s father and brother membership tion on of her account religious activities. This group consisting social particular supported, recog- conclusion is family, argu immediate waived this nized the IJ the fact Resp.’s ment.” Br. replied at 19-20. Gomez that the pastor head church—who petition argue perse that her a fear of pastor was the all times relevant to during cution due far as claims and as the record consisting of her immediate pastor—makes is still no reveals men- *8 family, if so sufficiently, but she did not do of or brother tion Gomez’s father even argument the requests she we review conducting pastoral activities the affida- miscarriage justice. a avoid of Pet’r’s Re explained: he the BIA vit submitted. As ply Br. at 11-12. Most statements from notable are the of Appel- Rule 28 the Rules of Federal Honduras,
family and friends in includ- late Court’s prece- Procedure and this church, pastor the of that general dent establish a rule that “conten- consistently [Gomez] indicate and her argument tions not of targeted the street raised the section extortion, opening due criminal and her father abandoned.” Suarez- are brief on the the matter is considered F.3d When v. Valenzuela merits, of Hand, explained Section III.C.2 (4th 2013) Helping A (quoting Cir. jus- of miscarriage Opinion, infra, this Cty., v. Balt. 515 F.3d LLC below, explain apparent. tice is As we 2008)) (internal omitted). quotations BIA the IJ are con- of the decisions that we we have also prior trary misapply our precedent “if may [we] “overlook” this determine rule of light of eventual denial case law. our ‘miscarriage justice’ a of other- would III.D, infra, claim in CAT Section Hand, Helping result.” Id. A (quoting wise argument rejecting this out meritorious 369) (internal quotations at omit- result procedural grounds on hand ted). In determining what constitutes a affirming deportation Gomez our “miscarriage a justice,” typically ask we asylum claim. when she has successful petitioner explain his or her failure every single potentially meritorious Not argument why a mis- raise the earlier and argument procedurally waived carriage justice would result absent our Court, but we be evaluated this need argument. of the consideration Howev- argument excep- the rare deem Gomez’s er, appel- explained by even not tion.6 will consider the merits We lant, ‘plain’ “if the error is our argument rule on it. result in the refusal to consider such would may still justice,” denial fundamental 2. sponte. argument, sua even consider the merits of Go Turning now to Hall, Stewart submits faced mez’s Gomez 1985) (citations omitted). persecution and has a fear well-founded the ba group social claim future in Honduras did brief the membership in social 18-19, particular BIA, sis alleviating see A.R. before the consisting family. immediate group preserved that the error concerns agree. review; however, We appellate she did not opening in her brief raise the issue this The IJ made a factual determination Thus, application court. under the normal “testimony credible rules, of our be issue would waived. particular of a social she is member Suarez-Valenzuela, See of a group, that is a member why Although explain does on to con family.” A.R. 53. IJ went earlier, argument failed raise perse not at risk of that Gomez was clude facts, why arguments these membership in the fami cution due to her miscarriage justice constitute ly because her father and inextricably in the merits of up tied are their wealth. A.R. threatened argument upheld by the IJ and erred 54. This was ' finding proposition she did make out a claim on Cordova for the relied greed prompted by on the mem- and a desire basis “threats money are not on account of the bership. to extort panel adequate opportunity suggest respondent had This is future has issue, searching argue BIA has ruled on the view of the rec- need undertake issue, misapplied prece- clearly potential the BIA has ord to find all issues on which dent, today sole issue determinative BIA could be reversed. We hold and the case—i.e., petitioner will be specific de- that under the factor whether facts *9 addressing petitioner ported—not the merits of the issue issue has briefed the (albeit brief), miscarriage justice. of opening not would be a before us in the membership family any par alien’s in a or Lynch, we reversed the finding that ticular group.” (citing social A.R. 5 Cordo the alien’s “relationship to her son is va, 339-40). However, she, 759 F.3d at person, another was threat misapplies holding misstates and our from ened with death if she did not him allow Cordova and our development join continued of gang], [the gang members’ group-based asylum social claims. leveraged demands authority maternal to control her son’s activities.” 784 F.3d Cordova, In cousin alien’s and uncle Cir, further clari We by gang. were killed a rival 759 F.3d at holding fied our say was “not to reasoned because the every threat that references family a mem cousin and uncle were not due to on family ber made account of ties.... status, family the alien could not [but] threats that two [the' directed persecution have of on a fear based his to turn alien] her son gang over Id, family rejected status. We meaningful only of because her ma rationale, and held that familial relation- authority actions, ternal over her son’s ship provide could for a well- basis there is evidence that she would have no. of founded fear other when recipient been selected as the of those targeted perse- members were for threats absent that familial connection.” cution, even those other members were Id. at 950 n.7. targeted “not of kinship because ties.” Id. We that even Here, Gomez and her mother have testi- though “may other family members orally, declaration, fied—either via sworn targeted’ have ‘uniquely specially been or both—that targeted per- Gomez was [that] does undermine [an alien’s] secution members MS-13 because (internal persecution.” quo- own fear Id. her father brother. This assertion was omitted). tation marks corroborated affidavits friends neighbors who did note that Gomez The BIA in also denied the Cordova targeted by to be continued due asylum alien’s on request the basis that her family associations. See A.R. targeted by was alien twice 230, 236. purposes recruitment his unrelated However, uncle and Id. he cousin. improperly The BIA and the IJ targeted an additional two due his times focused whether cousin, with his a member of a association protect were threatened due gang. being targeted rival Id. We held impute protec reason order such ed by gangs “for purposes of recruitment or family. tion to the in error. whole This was kinship extortion” ties related analysis The correct focuses not support finding would applicant, herself and asks whether based on in a social targeted Gomez was because her mem family. consisting of the alien’s bership group .consisting in the targeting at 339-40. if the words, In family. her immediate other to family relationships, connected as was whether “she have been selected as Cordova, targeting then the alien recipient those threats absent that support finding asylum. Id. at Hernandez-Avalos, familial connection.” It at 950 n.7. no moment Cordova, Following finding continued that the IJ made a of fact that the have clarify fa may provide gang’s respect how a motivation to her tie asylum. actually basis Hernandez-Avalos v. ther and brother was *10 on an carry lighter as we burden religious activity, failure and not extortion in a asylum necessarily fail Hernandez claim explained in both Cordova and results on a with carry ure burden heavier -Avalos. 6, 55; holding of ac removal claim. A.R. government similarly misses The (“An Marynenka, F.3d at cord mark, gang not tar- arguing that “the failed to establish the applicant who has anyone the Gomez get stringent standard less well-founded fear family, but because the belong to that they proof asylum for is nec required relief that the wished family has wealth an essarily also entitle unable establish Br. at 29. This miss- appropriate.” Resp.’s (internal withholding ment removal.” that the from Cordova es our instruction omitted)). precedent dic quotations Our alien]’s of [the fact “that other members situation, re where we tates ‘uniquely or family may have been asylum, the BIA on a claim verse not un- targeted’ by MS-13 does specially reverse and the decision remand persecu- dermine [the alien]’s fear withholding BIA for of the reconsideration Cordova, (emphases at 339 tion.” 759 F.3d in the first instance. Cor removal claim added). has established that her Gomez dova, (citing Fang at 340 n.7 Li 759 F.3d her that made to fear is based threats Mukasey, Lin v. harm her if specifically promised mem- 2008)). consisting of her of the social bers family, i.e. her immediate IV.
brother, money. did not the extortion The is clear Gomez’s “rela- record to re finally petitions tionship brother] her [father verse the determination that she did she, person, threat- and not another protection a claim for make out if she to ac- [refused ened with death qualify protections, CAT. To for CAT an Her- quiesce gang’s to the See demands].” it is applicant must “establish more nandez-Avalos, at 950. The IJ’s likely than not he or would be contrary the BIA’s conclusion proposed tortured if to the coun removed misinterpre- in error affirmance were as try testimony ap removal. The misapplication tation and our case law. credible, may sufficient to plicant, be has out a claim of a well- made cor proof without sustain burden (em on account of 1208.16(c)(2) founded fear § roboration.” 8 C.F.R. in a added). “Torture” is later defined phasis group, being as a member requir implementing regulations being was at least one central reason pub of a acquiescence “the consent or persecution. Accordingly, we targeted for person acting lic official or other review, reverse grant petition 1208.18(a)(1). will § capacity.” official Id. and remand instructions regulations explain “[acquies applica- grant asylum the BIA to public requires of a official that the cence ground. tion on this official, activity public prior to the consti torture, ac tuting awareness have such
D. his tivity breach or her and thereafter legal responsibility prevent to intervene IJ and both based 1208.18(a)(7). activity.” such “We re application determination on CAT for solely on denial view a denial of relief under withholding of removal Mulyani basis that of her substantial evidence.”
(N04CO (4th 2014) (citing Cir. F.3d also indicates that Honduras has instituted organization Lizama police oversight, for 2011)). Directorate for the Investigation General and Evaluation the Police Career showing The IJ held that “there is no (DIE CP), reviewing that has been citizen government Honduras complaints charges including “with viola- nor any any cause harm is [Gomez] there tions of rights, corruption, acting human showing government that the of Honduras against public good, participating and not or not provide protection could organized far, in crime.” A.R. 251. Thus to to [Gomez] were she return to Hondu- investigations 60% of the DIECP’s have ras,” and then denied relief CAT. under in resulted formal criminal charges or ad- A.R. 55. agreed, finding The Additionally, ministrative sanctions. Id. to Gomez failed to demonstrate clear er- deal corruption, govern- with official ror finding. with this factual A.R. developed ment and implemented a four- argue that the Gomez here appears year anticorruption transparency plan improperly in credibility considered on corruption based audits conducted making the of the facts for assessment parties. govern- third 257-58. A.R. claim, purposes of the CAT also ar- has also ment created the Public Minis- gues that gov- the record “the established Office, try’s Corruption Prosecutor’s but ernment Honduras or has been unable ten-year over the period before the Re- unwilling protect family.” See 5,000-case port, the backlog. office had a Br. at respect Pet’r’s 21-23. With to the Id. Additionally, argument credibility argument, this in is incorrect government police clearly are cor- 1208.16(c)(2), light 8 C.F.R. rupt charges because no been filed in have clearly explicitly states the IJ her father’s and brother’s murder is belied may credibility consider the the alien’s inability identify specific her own testimony in evaluating a CAT claim. in person MS-13 as killer. Regarding her record substantive Lizama, In light stronger evidence argument, Gomez fails to meet her burden we that the alien had held “failed dem- before demonstrate clear or criminal onstrate other enti- error in the finding IJ’s factual there ties ... or approval acquiescence have was a failure of of- proof the issue government.” 629 F.3d 449. Fur- or acquiescence public “consent offi ther, explained Mulyani, we “our respect cial” with feared juncture reweigh task not to at this ‘is were she to return to Honduras. She ar evidence and which of the com- determine gues police that the failure of the in Hon It in- peting compelling. is more views suspect duras arrest either her stead ensure that substantial evidence ” father’s brother’s murder conclu supports judgment.’ the BIA’s protect sive evidence that she will not be INS, (quoting at 200 Gonahasa v. support ed. the record does not 1999)). Finding such argument. here, deny we substantial evidence Go- respect Department petition mez’s to the CAT State’s Honduras with (the claim. Rights Report “Report”), 2012 Human “[a]mong
does indicate the most seri- V. rights problems ous human cor- reasons, ruption and foregoing grant institutional For weakness But, justice system.” A.R. 246. Report part petition re- with review If this foreclose her legally does spect eligibility with- no mis removal, there has been certainly re- means holding deny part CAT, justice carriage of case. These remand cases spect to her claim suggest often difficult circumstances for proceed- the case the BIA *12 law, seeking protection under our ings opinion. those consistent this immigration process but here worked GRANTED PETITION FOR REVIEW fairly. PART; RE- IN IN PART AND DENIED FOR PROCEED- MANDED FURTHER
INGS
SHEDD, in Judge, concurring Circuit
part'and dissenting part: majority’s
I conclusion concur no meritorious makes Gomez-Villatoro religious persecu- on fear
claim based
tion, majority’s I but dissent mem-
holding regarding asylum based on group. my bership HOROWITZ; Cathy Horowitz, Robert view, her so- has Gomez-Villatoro waived Plaintiffs-Appellants, to the cial claim relation from her gang’s effort to extort failing raise the COMPANY, FEDERAL INSURANCE opening claim in her brief. Son, a division of Fed Chubb & d/b/a Although majority excuses the waiv Company, Defendant- eral Insurance ,miscarriage justice er stan Appellee. dard, I I think disagree do not case is “rare circumstance” No. 16-1769 miscarriage justice A would result. Appeals, United Hand, States Cty., 515 Helping LLC v. Balt. Fourth Circuit. 2008); see also Suarez- 241, Valenzuela v. February Submitted: did Gomez-Villatoro argu explain why failed raise March Decided: miscarriage jus ment earlier or if it. tice result did address
Further, “plain”; any error below was not testimony before
Gomez-Villatoro’s
the IJ that she not face a indicates persecution. fear of future well-founded III, D.C., Lopatto Washington, John S. father, After the Gomez-Villa- death Hemmendinger, Appellant. Eric toro was Honduras LLP, threats, Balti- & SHAWE ROSENTHAL despite MS-13’s A.R. 97-98. More more, Maryland, Appellee. over, the IJ when asked Gomez-Villatoro if she be killed returned KEENAN, AGEE, WYNN, tax, Before did not Honduras and the war Judges. 98. Circuit “No.” A.R. answered Gomez-Villatoro