Gomez v. Gonzales

• Decision Date: 10 October 2005
• Docket Number: No. 04-2922.,04-2922.
• Citation: 425 F.3d 543
• Parties: Jorge Ines GOMEZ; Sonia Magnolia Gomez; Jorge Osvaldo Gomez, Petitioners, v. Alberto GONZALES, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

425 F.3d 543

Jorge Ines GOMEZ; Sonia Magnolia Gomez; Jorge Osvaldo Gomez, Petitioners, v. Alberto GONZALES, Attorney General of the United States, Respondent.

No. 04-2922.

United States Court of Appeals, Eighth Circuit.

Submitted: September 15, 2005.

Filed: October 10, 2005.

Phillip F. Fishman, argued, Minneapolis, MN, for petitioners.

Aviva L. Poczter, argued, United States Defender Of Justice, Office of Immigration Litigation, for respondent.

Before MELLOY, BEAM, and BENTON, Circuit Judges.

MELLOY, Circuit Judge.

Petitioners seek review of the Board of Immigration Appeals' (BIA) denial of their application for asylum, withholding of removal, and relief under the Convention Against Torture. We affirm.

I.

The lead petitioner is Jorge Ines Gomez. His wife and son, Sonia Magnolia Gomez and Jorge Osvaldo Gomez, are his fellow petitioners. All the petitioners are originally from Guatemala. They entered the United States without inspection, conceded removability, and now seek asylum, withholding of removal and relief under the Convention Against Torture.

The petitioners allege that, in 1990, Guatemalan government soldiers severely beat the lead petitioner and Sonia, who was pregnant at the time. They claim that the soldiers were searching for the lead petitioner's brother, a conscripted army deserter. They claim that these soldiers imputed a pro-guerilla/anti-government political opinion to them as a result of their refusal to aid in the soldiers' search for the brother. They also claim that this imputed political opinion motivated the soldiers' actions. The petitioners claim that the beatings injured not only the lead petitioner and Sonia, but also their unborn child. The petitioners allege that the child, William Estuardo Gomez Castro, was born deaf with broken hands and feet and that he died at the age of five.¹

Since 1990, country conditions appear to have improved in Guatemala, and formal hostilities have ended. The petitioners allege, however, that there remains a general degree of lawlessness. The petitioners allege that this lawlessness involves crimes of violence, revenge and intimidation carried out by police and former guerrillas and soldiers.

The immigration judge (IJ) assigned to the case made an adverse credibility finding and disbelieved the petitioners' story of persecution. She found in the alternative that even if the allegations of past persecution were true, any such past persecution did not occur because of an imputed political opinion. She also found that because there was no showing of past persecution due to a protected ground, the burden to show a reasonable fear of future persecution rested on the petitioners. Ultimately, she found that the petitioners failed to show a reasonable fear of future persecution in light of current country conditions in Guatemala.

On administrative appeal, the BIA specifically declined to affirm the IJ's adverse credibility determination. The BIA, however, accepted the IJ's alternative finding that, even if the petitioners suffered the past persecution as alleged, there was no evidence of a nexus between the past persecution and one of the five protected bases for a grant of relief: race, religion, nationality, membership in a particular social group, or actual or imputed political opinion. The BIA then found that the petitioners had "not demonstrated that they have a well-founded fear of persecution in Guatemala under the current country conditions in that country."

II.

In this court, the petitioners argue that the past persecution was based on imputed political opinion. The petitioners claim that the record compels reversal of the BIA's contrary finding on this point. The petitioners also argue that the BIA improperly placed on them the burden of showing a fear of future persecution under current country conditions.

We disagree. To reverse the finding that the alleged persecution was not based on a protected ground, it is necessary that the record compel the finding that a protected ground motivated the soldiers' actions. INS v. Elias-Zacarias, 502 U.S. 478, 481 & n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); 8 U.S.C.A. § 1252(b)(4)(B). Here, although the record might support the conclusion that the soldiers beat the petitioners based on imputed political opinion, the record does not compel such a finding.

The petitioners claim that soldiers came to their home specifically to find the lead petitioner's brother and that the soldiers threatened to return if the lead petitioner did not help find the brother. The petitioners are quite clear about the soldiers' immediate goal of finding the brother, a conscripted army deserter. The petitioners do not suggest that the soldiers made any statements regarding the petitioners' political opinions. The petitioners also do not claim that there were events other than the one encounter with the soldiers that would suggest any group had imputed a political opinion to the petitioners. The petitioners do claim that another of the lead petitioner's brothers disappeared. However, they do not explain how the fact of his possible disappearance would support an inference that the soldiers, their persecutors, had acted on an imputed political opinion. In short, the petitioners present only the conclusory allegation that the soldiers' motivation was related to an imputed political opinion.

In a Ninth Circuit case, a petitioner from Guatemala presented allegations that the court accepted as sufficient to establish an inference of an imputed political opinion. Chanchavac v. INS, 207 F.3d 584, 591 (9th Cir.2000). In Chanchavac, however, there was a more extensive...