Gonzalez-Posadas v. Attorney Gen. U.S.

Decision Date26 March 2015
Docket NumberNo. 14–1732.,14–1732.
Citation781 F.3d 677
PartiesHernan GONZALEZ–POSADAS, Petitioner v. ATTORNEY GENERAL UNITED STATES of America, Respondent.
CourtU.S. Court of Appeals — Third Circuit

Michelle P. Gonzalez, Aaron C. Morris, New York, NY, Counsel for Petitioner.

Eric H. Holder, Jr., Thomas W. Hussey, Greg D. Mack, Brooke M. Maurer, United States Department of Justice, Washington, DC, Counsel for Respondent.

Before: CHAGARES, JORDAN, and VANASKIE, Circuit Judges.

OPINION OF THE COURT

JORDAN, Circuit Judge.

Hernan Gonzalez–Posadas petitions for review of an order of the Board of Immigration Appeals (“the Board”). Specifically, he argues that the Board erred in affirming an Immigration Judge's conclusions that he did not suffer past persecution on account of his sexual orientation and that he does not have a reasonable fear of future persecution on that basis. We will deny the petition.

I. Background

Gonzalez–Posadas, a native and citizen of Honduras, unlawfully entered the United States on September 28, 2012. He was apprehended that same day by agents of the United States Department of Homeland Security (“DHS”) and found to be inadmissible under 8 U.S.C. § 1182(a)(7)(A)(i)(I). He was therefore removed from the United States on October 26, 2012. On February 21, 2013, he unlawfully reentered the United States, and, a week later, was again apprehended by DHS, which issued a “Notice of Intent/Decision to Reinstate Prior Order.” That Notice referred to Gonzalez–Posadas's earlier order of removal and constituted the first step toward again sending him back to his home country. In response, Gonzalez–Posadas expressed a fear of returning to Honduras. Soon after, the Asylum Office of the United States Citizenship and Immigration Services (“USCIS”) interviewed him.

A. Interview with USCIS

Gonzalez–Posadas told the USCIS interviewer that he had fled Honduras for two reasons. First, he reported that a gang called the “Maras”1 wanted to kill him. He told USCIS that he had been extorted by the Maras several times in Honduras because they believed that his sister in the United States had sent him money. He said that the gang had never physically harmed him but on one occasion some gang members confronted him with a weapon, demanded 1,500 Lempira,2 and told him that they were going to kill him if he did not pay them within five days. He acknowledged, however, that he did not pay them and nothing happened to him the next time he saw them. The gang also attempted to recruit him and his cousin, but Gonzalez–Posadas refused to join. When asked if he had ever gone to the police to report the Maras, Gonzalez–Posadas said he had done so but that his efforts to get help were fruitless because the police told him that they “didn't have enough proof” (A.R. at 249–50), evidently meaning there was insufficient proof to pursue his particular complaint.

The second reason Gonzalez–Posadas gave for fleeing Honduras was that his family mistreated him because they believed he was gay. He told the interviewer that he is not gay but that people believed him to be gay. When asked if he had ever been subjected to torture, he responded that he had because his family “humiliated” him by using homophobic slurs. (Id. at 249–51.) Gonzalez–Posadas also stated that one of his cousins was tied up and raped by his father for being gay. In addition, Gonzalez–Posadas said he was twice raped as a teenager by his cousin Felipe but never told anyone about the rapes because Felipe threatened to hurt his mother if he reported them. When asked if he had any reason to fear the Honduran authorities, he replied, “No.” (Id. at 252.)

USCIS determined that Gonzalez–Posadas had established a reasonable fear of persecution in Honduras and referred his case for a hearing before an immigration judge (“IJ”).

B. Application for Withholding of Removal and Protection

Because asylum is not available to aliens who face reinstatement of a prior order of removal, 8 U.S.C. § 1231(a)(5), Gonzalez–Posadas could not seek asylum, but he did submit an application for withholding of removal and protection under the Convention Against Torture (“CAT”).

In his application, he described the pattern of extortion and repeated attempts at recruitment to which he said the Maras subjected him. He also said the Maras approached two of his cousins, Herlindo Hernandez and Marvin Hernandez, and made similar attempts to lure them into joining the gang. When the two refused, the gang allegedly attacked Herlindo with machetes. Gonzalez–Posadas stated that, soon after attacking Herlindo, the Maras also tried to attack him with machetes, but he was able to hide for a few hours until they left. He claimed that an attempt to get law enforcement to intervene was useless because the police were “corrupt and weak” and did nothing. (A.R. at 230.) He further claimed that he feared torture and death because he had refused to join the Maras, had reported them to the police, and was on their “kill” list.

Gonzalez–Posadas went on in his application to say that he feared rape, torture, and death because he had been “repeatedly raped” by his cousin Felipe, whom he identified as a member of the Maras and who called him “gay,” “trash,” a “fag,” and “worth nothing.” (Id. at 223, 230.) In addition, he said that other family members discriminated against him because of their perception of his sexual orientation.

Finally, Gonzalez–Posadas stated that, after his first removal from the United States and return to Honduras, the Maras' threats worsened, which led to his second effort to enter the United States. He said that, three days after he left Honduras, the Maras shot and killed his cousin Marvin for refusing to join the gang, for being related to Gonzalez–Posadas who also refused to join the gang, and in retaliation for Gonzalez–Posadas's decision to report the gang to the police.

C. Proceedings Before the IJ

The application for withholding of removal and protection under CAT that Gonzalez–Posadas filed became the basis for a hearing before an IJ. At that hearing, when asked on direct examination what his sexual orientation was, Gonzalez–Posadas replied, “I'm gay.” (Id. at 115.) When asked if he had ever been subjected to any harsh treatment because of being gay, Gonzalez–Posadas replied, “Yes.” (Id. at 116.) Gonzalez–Posadas then described his first forced sexual encounter with Felipe, stating that, when Felipe raped him, he first beat him and threatened him with a knife. Because Felipe told Gonzalez–Posadas that he would kill him and his mother if he reported the rape, Gonzalez–Posadas kept silent about it. Gonzalez–Posadas testified that Felipe raped him again a second time, after beating him and threatening him with a pistol, and Felipe again threatened to kill him if he told anyone about the rape. Gonzalez–Posadas testified that, in spite of the threats, he eventually reported the second rape to the police some three years later.

Gonzalez–Posadas also testified that the Maras mistreated him by using homophobic slurs, and they threatened to kill him if he did not pay them. He said that gang members would tell him that he had to perform oral sex on them, though he never did. He also described in detail an incident when the Maras attempted to recruit and extort him. Some time after his mother died, eight armed Maras showed up at his house, beat him, and demanded that he join their gang. When he refused to join, they told him that he had to pay them 1,500 Lempira on the fifth of each month or else they would kill him. He attempted to escape the gang by moving to a different part of Honduras, but the gang found him after two weeks and threatened to kill him if he did not submit to the extortion. He testified that he went to the police in November 2012 to report the Maras but was told that he did not have enough proof to initiate an arrest against any members of the gang.

In his testimony, Gonzalez–Posadas gave more detail about his sexual orientation than he had earlier. He stated that people had noted his effeminate nature since his childhood. He said that when he was 18, he had a homosexual relationship with a friend. He also testified about his decision to attend a beauty academy, saying that it had always been his desire to become a beautician but that pursuing his career had fueled the homophobic abuse he experienced, including from members of his family. When asked why he had not told the USCIS interviewer that he was gay, he said that the interview had taken place too quickly and that he did not feel comfortable disclosing that to the interviewer.

Finally, Gonzalez–Posadas testified that he fled to the United States and feared returning to Honduras because of the Maras and his cousin, and that the Maras knew he had reported them to the police. Gonzalez–Posadas stated that he feared he would be abused if he were returned to Honduras because the gang has a significant presence throughout the country. He said, “When they find out that I'm gay I'm afraid that they may want to rape me again.”3 (A.R. at 141.)

On cross examination, Gonzalez–Posadas testified that he never told anyone that Felipe had raped him on either occasion, and that he did not know that Felipe was a member of the Maras until two years after the second attack. Gonzalez–Posadas also stated that, during the incident with the Maras at his home, he was beaten, threatened with a gun, and subjected to homophobic slurs. He admitted that he was not seriously hurt during the incident and that the gang did not try to recruit him, though they told him that he had to pay them money or else sell drugs for them. Gonzalez–Posadas also said that gang members (presumably excluding Felipe) never sexually assaulted him in any way; instead, they “just [made] threats” with sexual overtones. (A.R. at 151.) Gonzalez–Posadas stated that he was harassed by the Maras on twenty to thirty occasions.

On cross examination, Gonzalez–Posadas also provided new details about...

To continue reading

Request your trial
88 cases
  • Cazun v. Attorney Gen. U.S., 15-3374
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 2 Mayo 2017
    ...is not available to aliens who face reinstatement of a prior order of removal [under] 8 U.S.C. § 1231(a)(5)." Gonzalez-Posadas v. Att'y Gen. , 781 F.3d 677, 680 (3d Cir. 2015). Because neither Marincas nor Gonzalez-Posadas analyzed the interplay between the asylum provision and the reinstat......
  • Guzman-Vazquez v. Barr
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 18 Mayo 2020
    ...two circuits have considered this issue in published opinions, and have come to opposite conclusions.12 In Gonzalez-Posadas v. Attorney Gen. U.S. , 781 F.3d 677 (3d Cir. 2015), the Third Circuit briefly stated in a footnote that Matter of C-T-L- had correctly assessed "Congress's intent to ......
  • Quituizaca v. Garland
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 1 Noviembre 2022
    ...persecution tests in the context of both claims for asylum and claims for withholding of removal." Gonzalez-Posadas v. Attorney Gen. U.S. , 781 F.3d 677, 685 n.6 (3d Cir. 2015) (quoting Matter of C-T-L , 25 I. & N. Dec. at 348 ). A year before the BIA issued Matter of C-T-L- , the Fifth Cir......
  • Figueroa v. Attorney Gen. U.S.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 19 Mayo 2021
    ...U.S.C. § 1231(b)(3)(A) ; see also INS v. Stevic , 467 U.S. 407, 429–30, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984) ; Gonzalez-Posadas v. Att'y Gen. , 781 F.3d 677, 684 (3d Cir. 2015). If an applicant makes a showing of future persecution, then he or she cannot be removed to that country but may ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT