Alvarez-Gomez v. Garland
| Decision Date | 28 December 2022 |
| Docket Number | 21-2279 |
| Citation | 56 F.4th 582 |
| Parties | Gustavo Alexis ALVAREZ-GOMEZ, Petitioner v. Merrick B. GARLAND, Attorney General of the United States, Respondent |
| Court | U.S. Court of Appeals — Eighth Circuit |
Counsel who represented the petitioner was Timothy E. Wichmer, of St. Louis, MO.
Counsel who represented the respondent was Spencer Shucard, USDOJ, OIL, of Washington, DC.
Before LOKEN and KELLY, Circuit Judges, and MENENDEZ, District Judge.1
Gustavo Alexis Alvarez-Gomez, a citizen of El Salvador, petitions this court for review of the denial of his application for withholding of removal under the Immigration and Nationality Act (INA) and reversal of withholding of removal under the Convention Against Torture (CAT). Alvarez-Gomez has serious cognitive impairments, and while living in El Salvador he was recruited by gang members who attacked and threatened him when he refused to join. We deny in part, and grant in part, Alvarez-Gomez's petition for review.
On May 8, 2020, Alvarez-Gomez was convicted by a jury in the Southern District of Illinois for illegal possession of a firearm under 18 U.S.C. § 922(g)(5)(A), and sentenced to time served. The Department of Homeland Security (DHS) issued a final order of removal pursuant to 8 U.S.C. § 1228(b), because the conviction qualified as an aggravated felony under 8 U.S.C. § 1101(a)(43)(E). Alvarez-Gomez expressed a fear of returning to El Salvador. An asylum officer conducted a reasonable fear interview and found Alvarez-Gomez credible but his fear of persecution or torture in El Salvador not reasonable. After a hearing, the Immigration Judge (IJ) vacated the officer's decision and placed Alvarez-Gomez into withholding-only proceedings to review his eligibility for protection.
Alvarez-Gomez applied for withholding of removal under both the INA, 8 U.S.C. § 1231(b)(3), and the CAT, 8 C.F.R. § 1208.16(b), (c). Alvarez-Gomez claimed that he feared persecution or torture in El Salvador based on efforts by gang members to recruit him, which he refused, and their subsequent retaliation through threats and physical attacks. He asserted that his § 1231(b)(3) withholding of removal claim was based on membership in a particular social group, including persons with disabilities, persons with mental or cognitive disabilities, or persons with disabilities who are known witnesses of gang criminal activity and/or reported gang criminal activity to police.
Alvarez-Gomez moved for a competency evaluation, under Matter of M-A-M-, 25 I. & N. Dec. 474 (BIA 2011). He cannot read or write; has memory, comprehension, and concentration issues; and did not progress past the first grade in school. An evaluation showed that Alvarez-Gomez has severe cognitive impairment, with an IQ of 55, which places him in the lowest 0.1 percentile. The IJ concluded that Alvarez-Gomez was not competent to stand removal proceedings and instituted a number of safeguards: representation by counsel; use of leading questions; taking breaks; and participation by his mother, Alma, to help prepare the case and communicate with Alvarez-Gomez throughout the proceedings. Neither party disputes the sufficiency of the safeguards.
Taking the incompetency finding and the safeguards into account, the IJ found Alvarez-Gomez and Alma to be credible despite Alvarez-Gomez's inability to recall some details during his testimony and some inconsistencies in the record. The following is a summary of the IJ's factual findings.
Alvarez-Gomez was born on December 15, 1996, in El Salvador. Alvarez-Gomez's father abused him, his sister, and his mother. Alma testified that on one occasion when Alvarez-Gomez was young, he hit his head after his father threw him against a bed. Alma attributed his illiteracy and cognitive impairment to this incident. Alvarez-Gomez also witnessed his father abusing his mother and sister. Eventually Alma left her children with her mother and fled to the United States. Alvarez-Gomez continued to live with his grandmother for several years.
Around 2013, after Alma left El Salvador, gang members began trying to recruit Alvarez-Gomez. Alvarez-Gomez refused to join the gang because he is religious and "a humble person." When he refused, gang members threatened him and beat him. Alvarez-Gomez reported the assault to the police, but officers did not investigate. Instead, according to Alvarez-Gomez, officers told the gang members that he had reported the attack. The gang then attacked him again, beating and hitting him with sticks, leaving him with scars and a broken nose. After the second beating, Alvarez-Gomez fled El Salvador to live with his aunt in Guatemala. But the gang members continued to seek him out in Guatemala, so he then fled to the United States, entering the country sometime in 2016. Gang members have continued to threaten to kill Alvarez-Gomez if he returns to El Salvador—Alma testified that her daughter, who lives in El Salvador, has been warned by the gang that they are "waiting for" Alvarez-Gomez.
People in the community knew of Alvarez-Gomez's cognitive disability, and Alvarez-Gomez believed the gang recruited him because of his illiteracy. He knows the gang recruited another illiterate youth, and he testified the gang killed his cousin, who was also illiterate. The gang members called Alvarez-Gomez "crazy" in threatening messages and said they wanted a "crazy person" to join the gang because he could commit even worse acts than any of them could.
On the merits, the IJ concluded that Alvarez-Gomez was statutorily eligible for withholding of removal under 8 U.S.C. § 1231(b)(3) because he had not committed a particularly serious crime. The IJ also concluded that Alvarez-Gomez described serious harm rising to the level of persecution based on the gang members’ repeated harassment, beatings, and death threats. However, the IJ found that Alvarez-Gomez did not establish that the gang's persecution was on account of membership in a particular social group, but only that he was the "unfortunate victim of serious crime." The IJ thus denied Alvarez-Gomez's withholding of removal claim pursuant to 8 U.S.C. § 1231(b)(3)(A).
However, the IJ granted Alvarez-Gomez CAT protection. The IJ concluded that Alvarez-Gomez had endured past torture at the hands of the gang members, as the attacks and ongoing threats show an intent to harm and kill Alvarez-Gomez and a specific intent to inflict severe physical pain or mental suffering. The IJ also found it was more likely than not that Alvarez-Gomez would be subjected to future torture if he returned to El Salvador. The IJ concluded that relocation in El Salvador was not an option for Alvarez-Gomez since the gang would be able to find him anywhere in the country, and that future torture would occur with the acquiescence of public officials as evidenced by police refusal to investigate the prior gang attack and their collusion with the gang. The IJ also cited country conditions evidence showing that people with cognitive disabilities like Alvarez-Gomez are especially vulnerable to deplorable human rights conditions in El Salvador and that police are unable to prevent torture.
DHS appealed the grant of CAT relief, and Alvarez-Gomez cross-appealed the denial of § 1231(b)(3) withholding of removal. The Board of Immigration Appeals (BIA) dismissed the cross-appeal, adopting the IJ's determination that Alvarez-Gomez failed to establish a nexus between the harm he suffered and a protected ground.
The BIA sustained DHS's appeal. The BIA concluded that the IJ clearly erred in finding that Alvarez-Gomez would more likely than not suffer torture in El Salvador and reversed the IJ's decision to grant CAT protection. Alvarez-Gomez timely filed a petition for review of the BIA's order, and we granted his motion for stay of removal pending disposition of his petition. We have jurisdiction pursuant to 8 U.S.C. § 1252.
We first address the appeal of the denial of withholding of removal pursuant to § 1231(b)(3). To obtain withholding of removal under the INA, an applicant must show a clear probability of persecution on account of race, religion, national origin, membership in a particular social group, or political opinion. 8 U.S.C. § 1231(b)(3)(A). The applicant may show a clear probability that their life or freedom would be threatened either by showing past persecution on account of a protected characteristic, which creates a rebuttable presumption of future persecution, or by showing "it is more likely than not" they would be persecuted upon removal irrespective of past persecution. See Mouawad v. Gonzales, 485 F.3d 405, 411–12 (8th Cir. 2007) (quoting 8 C.F.R. § 1208.16(b)(1) ). The likelihood of future persecution can be established by a pattern or practice of persecution of a group of persons similarly situated to the applicant. See 8 C.F.R. § 1208.16(b)(2).
Because Alvarez-Gomez has been convicted of a firearm offense, our review of his application for withholding of removal is limited by 8 U.S.C. § 1252(a)(2)(C). ("[N]o court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section 1182(a)(2) or 1227(a)(2)(A)(iii), (B), (C), or (D) of this title."). This provision limits our review of a petition brought by a noncitizen who has been convicted of an enumerated offense to legal and constitutional questions and bars review of factual questions related to final orders of removal. Ahmed v. Garland, 993 F.3d 1029, 1032 (8th Cir. 2021). Alvarez-Gomez was convicted of illegal possession of a firearm in violation of 18 U.S.C. § 922(g)(5)(A), which is an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii), see 8 U.S.C. § 1101(a)(43)(E), and our review of his § 1231(b)(3) withholding claim is therefore limited to legal and constitutional questions.
The primary error that Alvarez-Gomez identifies in his petition is a question of fact: that...
To continue reading
Request your trial