Gomez-Chavez v. Barr
| Decision Date | 14 November 2019 |
| Docket Number | No. 19-3027,19-3027 |
| Parties | FLORINDA FLORIDALMA GOMEZ-CHAVEZ, et al., Petitioners, v. WILLIAM P. BARR, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 19a0571n.06
ON PETITION FOR REVIEW FROM THE UNITED STATES BOARD OF IMMIGRATION APPEALS
BEFORE: CLAY, THAPAR, and NALBANDIAN, Circuit Judges.
CLAY, Circuit Judge. Petitioner Florinda Gomez-Chavez, on behalf of herself and her minor child, seeks review from a decision of the Board of Immigration Appeals ("BIA") denying their application for asylum and withholding of removal, as well as their motion to terminate removal proceedings for lack of jurisdiction. See 8 U.S.C. §§ 1158, 1231(b)(3); 8 C.F.R. § 1003.14(a). For the reasons set forth below, we deny her petition for review.
Gomez-Chavez and her child are citizens of Guatemala. They entered the United States on May 5, 2014 after traveling through Mexico, and the following day were served with a notice to appear for removal proceedings, charging them with entering the country without being admitted by an immigration officer. The notice to appear did not include a date and time for her initial hearing, and instead said it would occur "on a date to be set at a time to be set." (A.R. at 245.)1 Gomez-Chavez later received notices of hearings that included the dates and times of her immigration proceedings, with her first hearing set for September 9, 2014. Gomez-Chavez attended that hearing and all subsequent hearings.
At the September 9, 2014 hearing, the immigration judge continued her case to July 28, 2015 so that Gomez-Chavez would have time to retain a lawyer. On July 7, 2015, Gomez-Chavez—now represented by counsel—signed and submitted an application for asylum and withholding of removal. When asked why she did not file within the first year of her arrival in the United States, Gomez-Chavez said it was because she didn't know that she could. She appeared for a hearing later that month and formally filed the application with the court, and a hearing on the application's merits was set for October 11, 2017.
Gomez-Chavez's application was based on her fear of persecution for "[m]embership in a particular social group." (Id. at 189); see also 8 U.S.C. § 1231(b)(3)(A) (). At the October 11, 2015 hearing, Gomez-Chavez specified that her particular social group was "individuals with markers of wealth," and that gang members targeted her because of this perceived wealth. (A.R. at 112-13.)
Gomez-Chavez said she left Guatemala for the United States because she was being harassed by members of the "MS Gang" (presumably Mara Salvatrucha, or MS-13). (Id. at 98-99; see also id. at 137.) At the time, Gomez-Chavez was attending school and living with her sister.Her sister was known in her community for running a small store out of her house. The store was quite popular, as it was the only place to get basic supplies within an hour's walk.
Gomez-Chavez said that sometime between 2011 and 2013, her sister received a phone call from a man who said his name was Carlos Mendoza, whom she thought was a member of the MS Gang. Mendoza threatened Gomez-Chavez's sister and demanded 50,000 Guatemalan quetzals (about $6,500). He said if she did not pay, "he and his accomplices would hurt [their] family" and would kill Gomez-Chavez. (Id. at 99, 189.)
Gomez-Chavez's sister paid the money, but this only made Mendoza call again to ask for more. She also said that because Gomez-Chavez lived with her sister, they started to threaten her as well. The gang stole her nephew's truck and robbed her sister's store. When her sister refused to pay again, Mendoza and his associates raped Gomez-Chavez's niece. They filed a police report, "but nothing came of it," and the gang then threatened to do the same to Gomez-Chavez. (Id. at 189.) However, they never directly contacted Gomez-Chavez.
On the road she would walk along from her sister's house, Gomez-Chavez would see a group of men whom she believed were members of the gang. One time, they followed her and were walking behind her until she ran and jumped onto a departing bus.
Following these threats, and because the gang members had followed her, Gomez-Chavez moved in with her parents, about two hours away from her sister's home. While she never received threats at her parents' home, some cars would park on the road by the house, and Gomez-Chavez was afraid they were members of the gang. Her sister continued to receive calls, though, including some that threatened Gomez-Chavez. A few months after moving to her parents' house, Gomez-Chavez left for the United States, saying she feared for her safety and the safety of her daughter.She did not think the government of Guatemala could protect her, nor did she think that she could move anywhere else within Guatemala to avoid persecution.
While the immigration judge found Gomez-Chavez to be credible, he denied her application for asylum and for withholding of removal. On the asylum claim, the court found that Gomez-Chavez filed her application more than one year after arriving in the United States and had failed to show extraordinary circumstances justifying the late filing. On withholding of removal, the court found that Gomez-Chavez failed to establish that she was persecuted or feared persecution on account of her asserted social group.
As noted in the State Department's country report for Guatemala, (Id. at 138.) Thus, the court found that the events Gomez-Chavez described reflect "the general violence and criminal activity plaguing Guatemala, including extortion, assaults, and other violent crimes committed by gang members." (Id. at 63.) Since the crimes in Gomez-Chavez's case were committed to further the gang's own interests, and not on account of Gomez-Chavez's asserted social group, they reflected "general conditions of crime and violence in Guatemala" and not "persecution on account of a protected ground." (Id. at 64.)
While the court said it was unnecessary to reach the question, it would have also found that her asserted social group "failed to meet the immutability, particularity, and social distinction requirements" for recognition under the law. (Id.) Also, even though Gomez-Chavez had not applied for relief under the Convention Against Torture, the immigration judge found she would not have been eligible. Accordingly, the immigration judge denied her application and ordered her removed to Guatemala.
Gomez-Chavez appealed to the BIA, raising several grounds for reversal. First, she argued that the immigration judge erred in finding that she had failed to establish persecution on account of her asserted social group. Second, she said that the court should have forgiven her late asylum application since she was never told about the deadline. Third, the immigration court lacked subject-matter jurisdiction because her original notice to appear did not include the date and time of her hearing, rendering it defective, and this defective notice also violated her right to due process.
The BIA denied Gomez-Chavez's appeal. Specifically, the BIA found that Gomez-Chavez "did not establish a nexus between the harm she fears and the protected ground at issue." (Id. at 3.) This is because the evidence suggested that (Id. at 3-4.) The BIA made this finding under the more forgiving legal standard for asylum claims, and so did not address the timeliness of her application, since it would have been denied in either case. And because Gomez-Chavez did not meet the standard for asylum, she also could not meet the higher standard for withholding of removal. See INS v. Cardoza-Fonesca, 480 U.S. 421, 427-32 (1987) (); Urbina-Mejia v. Holder, 597 F.3d 360, 365 (6th Cir. 2010) (same).
The BIA also rejected her arguments about the missing date and time on her notice to appear. According to the Board, because a notice of hearing containing that information was eventually sent to Gomez-Chavez, the immigration court had jurisdiction and could order herremoval. Thus, Gomez-Chavez's appeal was denied in its entirety, and so she petitioned this Court for review.
On appeal, Gomez-Chavez claims that the BIA erred in finding that she had not established a nexus between her alleged persecution and the particular social group of which she claims to be a member, namely "individuals with markers of wealth." She also claims that her application should have been reviewed under the more forgiving standard for asylum seekers, even though it was filed after the deadline. Finally, she argues that because the date and time of her hearing were not included in her initial notice to appear, but instead provided in a later notice, the immigration court lacked jurisdiction and violated her right to due process. For the reasons discussed below, each of these arguments fails.
"On petitions from BIA decisions, we review questions of law de novo, but 'substantial deference is given to the BIA's interpretation of the INA and accompanying...
To continue reading
Request your trial