De Castro-Gutierrez v. Holder

• Decision Date: 22 April 2013
• Docket Number: No. 12–2796.,12–2796.
• Citation: 713 F.3d 375
• Parties: Rosa DE CASTRO–GUTIERREZ, Petitioner v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

713 F.3d 375

Rosa DE CASTRO–GUTIERREZ, Petitioner

v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 12–2796.

United States Court of Appeals, Eighth Circuit.

Submitted: March 12, 2013.

Filed: April 22, 2013.

Jonathan Willmoth, Kansas City, MO, for petitioner.

Timothy Bo Stanton, Civil Division, Office of Immigration Litigation, Washington DC, for respondent.

Before MURPHY, SMITH, and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

Rosa Mercedes De Castro–Gutierrez, a native and citizen of Colombia, petitions for review of the decision of the Board of Immigration Appeals (“BIA”), affirming the decision of the Immigration Judge (“IJ”) to deny her claims for withholding of removal and relief under the Convention Against Torture (“CAT”). For the reasons discussed below, we deny the petition.

I. BACKGROUND

De Castro–Gutierrez entered the United States on August 17, 2004, as a non-immigrant B–2 visitor with authorization to remain until February 16, 2005. She remained in the United States after that date without authorization. On April 14, 2010, immigration authorities issued a Notice to Appear, charging her as removable under section 237(a)(1)(B) of the Immigration Nationality Act (“INA”). De Castro–Gutierrez conceded her removability but filed an application for asylum and for withholding of removal. Because De Castro–Gutierrez filed her asylum application more than one year after her most recent arrival in the United States, the IJ determined she was ineligible for asylum. As a result, the IJ considered only whether she qualified for withholding of removal under INA section 241(b)(3) or for relief under the CAT.¹

De Castro–Gutierrez stated that she fears persecution if she returns to Colombia based on her “membership within the Donado family, ... a wealthy family of landowners” in Soledad, Colombia. De Castro–Gutierrez never married Eduardo Donado (“Eduardo”), the father of her daughter, but they had a romantic relationship and resided together in both Colombia and the United States. De Castro–Gutierrez also testified that she was a member of the country's Liberal party and that the Donado family also supported that party.² Before the IJ, De Castro–Gutierrez testified that the Revolutionary Armed Forces of Colombia (“FARC”) began targeting the Donados in 1994 because of their property holdings and wealth. In 1997, Eduardo and his brother learned that their father had been giving money and cattle to members of the FARC for several years. Eduardo and his brother attacked these men at the farm in 1997 and later stopped working on the farm because of threats from members of the FARC. In 1999, when the threats became more frequent, Eduardo's father sold his properties and cattle business, and Eduardo and his brother relocated to the United States, where they remain. On April 6, 2002, Eduardo's uncle, who owned some family properties, was shot. De Castro–Gutierrez did not know if there had been a police investigation, but she believes that the FARC was responsible.

On August 12, 2002, De Castro–Gutierrez received an anonymous phone call. The caller asked about Eduardo's whereabouts and told her that if she did not cooperate “they wouldn't be responsible [for] the lives of [her] daughter and [her].” The next day De Castro–Gutierrez and Eduardo's mother both received threatening phone calls. De Castro–Gutierrez reported this incident to the police, but on October 5, 2002, she received another phone call asking about Eduardo's location. The caller again threatened that if she did not disclose the information “they were not going to be responsible for the lives of [her] daughter and [her]self.” De Castro–Gutierrez reported this call to the authorities as well and began moving from one house to another to protect herself and her daughter. Then, in December 2002, De Castro–Gutierrez was in the car with several co-workers when the car in which they were traveling was stopped. The man who stopped the car demanded that De Castro–Gutierrez cooperate, asked her about Eduardo, and threatened her and her daughter. De Castro–Gutierrez also reported this incident to the police, but the people involved were never identified. De Castro–Gutierrez testified that despite these threats, she was never physically harmed.

De Castro–Gutierrez initially came to the United States with her daughter in 2002. Upon her return to Colombia in January 2003, she received threats “all the time.” In September 2003, a caller told her that if Eduardo did not cooperate, they would take her daughter. De Castro–Gutierrez sent her daughter to live with a friend and reported the incident to police. Later that month, De Castro–Gutierrez was leaving a bank when two men robbed her at gunpoint and took her purse. The men did not say anything about the FARC. Nonetheless, De Castro–Gutierrez decided to leave Colombia after the robbery. De Castro–Gutierrez did not receive any more threats before her return to the United States in January 2004, where she and her daughter stayed for almost two months. They returned to Colombia when De Castro–Gutierrez's employer would not give her permission for a two-year sabbatical. She did not receive any more threats between the time of her return to Colombia and her last entry into the United States on August 17, 2004. De Castro–Gutierrez testified that she intended to return to Colombia, but, in June 2005, she decided to stay in the United States permanently after she learned that Eduardo's brother had been shot in Soledad. The person who shot him has not been found, but De Castro–Gutierrez believes there was a connection between his shooting and the 2002 shooting of Eduardo's uncle. De Castro–Gutierrez testified that she fears being killed or kidnapped if she were to return to Colombia and that she would need to move around Colombia in order to remain safe. She also acknowledged that the Colombian government had reduced the violence in her home country but contends that she cannot depend on the government to protect her.

De Castro–Gutierrez received a Notice to Appear from immigration authorities in April 2010, following an arrest and guilty plea on charges of felony identity theft. The IJ concluded that the evidence presented did not establish that De Castro–Gutierrez suffered past persecution or that she faced future persecution or torture if removed to Colombia. Accordingly, the IJ concluded that De Castro–Gutierrez was not eligible for withholding of removal or for relief under the CAT. The BIA adopted the IJ's decision, added additional reasoning, and dismissed her appeal.

II. DISCUSSION

We review questions of law de novo, and we review the agency's factual determinations under the substantial evidence standard, reversing only where a petitioner demonstrates “that the evidence was so compelling that no reasonable fact finder could fail to find in favor of the petitioner.” Turay v. Ashcroft, 405 F.3d 663, 666–67 (8th Cir.2005). Where, as here, the BIA adopts the IJ's decision and adds its own reasoning, we review both decisions. Setiadi v. Gonzales, 437 F.3d 710, 713 (8th Cir.2006).

A. Withholding of Removal

To qualify for withholding of removal, De Castro–Gutierrez must show that there is “a clear probability that [her] ‘life or freedom would be threatened in [Colombia] because of [her] race, religion, nationality, membership in a particular social group, or political opinion.’ ” Mompongo v. Gonzales, 406 F.3d 512, 514 (8th Cir.2005) (quoting 8 U.S.C. § 1231(b)(3)(A)). Persecution is an extreme concept, involving “the infliction or threat of death, torture, or injury to one's person or freedom.” Regalado–Garcia v. INS, 305 F.3d 784, 787 (8th Cir.2002). Further, the alleged persecution must be inflicted either by the government of a country or by persons or an organization that the government is unable or unwilling to control. Menjivar v. Gonzales, 416 F.3d 918, 921 (8th Cir.2005). “Persecution on account of membership in a particular social group” requires “persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic.” Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985), overruled on other grounds by Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987). The BIA requires that a particular social group (1) have social visibility; (2) be defined with particularity to avoid indeterminate group membership; and (3) not be defined exclusively by the fact that its members have been targeted for persecution. Matter of S–E–G–, 24 I. & N. Dec. 579, 583–84 (BIA 2008); see also Davila–Mejia v. Mukasey, 531 F.3d 624, 628–29 (8th Cir.2008) (adopting the BIA's social visibility criteria).

As an initial matter, the IJ found that De Castro–Gutierrez failed to establish that it would not be reasonable for her to relocate as required under federal regulations outlining the eligibility requirements for withholding of removal. See8 C.F.R. § 1208.16(b)(2) (“[A]n applicant cannot demonstrate that his or her life or freedom would be threatened if the asylum officer or immigration judge finds that the applicant could avoid a future threat to his or her life or freedom by relocating to another part of the proposed country of removal and, under all the circumstances, it would be reasonable to expect the applicant to do so.”). De Castro–Gutierrez did not challenge this factual determination, and even assuming her appeal of this issue is not waived for lack of meaningful argument, see Chay–Velasquez v. Ashcroft, 367 F.3d 751, 756 (8th Cir.2004), we cannot conclude that the evidence compels a contrary conclusion, especially where De Castro–Gutierrez testified that she moved from Soledad to another part of Colombia in 2004 and successfully avoided further threats. Therefore, the IJ correctly concluded that De Castro–Gutierrez is not eligible for withholding of removal.

Even if the IJ's...