Silvestre-Giron v. Barr, 021220 FED8, 18-2887
| Opinion Judge | GRASZ, CIRCUIT JUDGE. |
| Party Name | Wendi Amarilis Silvestre-Giron Petitioner v. William P. Barr, Attorney General of the United States Respondent |
| Judge Panel | Before SHEPHERD, GRASZ, and KOBES, Circuit Judges. |
| Case Date | February 12, 2020 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Eighth Circuit |
Submitted: November 14, 2019
Petition for Review of an Order of the Board of Immigration Appeals
Before SHEPHERD, GRASZ, and KOBES, Circuit Judges.
GRASZ, CIRCUIT JUDGE.
Wendi Amarilis Silvestre-Giron petitions the court for review of a final order of removal issued by the Board of Immigration Appeals ("BIA"). The BIA dismissed Silvestre-Giron's appeal from an immigration judge's ("IJ") order denying her request for withholding of removal under section 241(b)(3)(A) of the Immigration and Nationality Act (the "Act"), 8 U.S.C. § 1231(b)(3)(A), and protection under the Convention Against Torture ("CAT"), 8 C.F.R. § 1208.16(c)(2). For the reasons stated below, we deny the petition for review.
I. Background
Silvestre-Giron is a native and citizen of Guatemala, and she was removed from the United States in January 2003 for unlawful entry. Silvestre-Giron unlawfully reentered the United States in October 2003 and remained until the Department of Homeland Security ("DHS") ordered her removal in January 2018 under section 241(a)(5) of the Act, 8 U.S.C. § 1231(a)(5). Before her removal, an asylum officer determined Silvestre-Giron had raised a reasonable fear of persecution or torture in Guatemala, and the matter was referred to the IJ.
According to the evidence presented to the IJ, Silvestre-Giron feared extortion and death if she returned to Guatemala. Silvestre-Giron testified that her mother and stepfather operated a vending post at their local market, and in 2014, an unknown group began threatening them with physical harm unless they paid the group money to operate their vending post. Silvestre-Giron's mother and stepfather initially paid the extortionists. However, they were eventually unable to pay, and in August 2017, Silvestre-Giron's stepfather was shot and killed. The extortionists then told Silvestre-Giron's mother that they would kill her and her children unless payments resumed. Although law enforcement investigated the murder, it is unclear whether the person or group responsible was identified.
At some point following her stepfather's murder, Silvestre-Giron's mother moved from Guatemala City to Jalapa to live with her sister, ostensibly to escape the extortionists. But the extortionists located her in Jalapa within a few weeks and threatened her and her son - Silvestre-Giron's brother. The extortionists also separately threatened Silvestre-Giron's brother on multiple occasions, forcing him to quit school. After the extortionists found Silvestre-Giron's mother in Jalapa, she moved back to Guatemala City. Silvestre-Giron's mother relayed all of this information to her, and Silvestre-Giron testified that she will have to live with her mother - whom the extortionists continue to threaten - if she is removed to Guatemala.
The IJ credited Silvestre-Giron's testimony but denied her request for withholding of removal and CAT protection. As to withholding of removal, the IJ concluded that any threat to her life or freedom was not because of her membership in a particular social group, i.e., her family. As to CAT protection, the IJ determined there was no evidence to suggest the Guatemalan government "play[ed] any role in consenting or acquiescing" to the treatment of Silvestre-Giron's family.
Silvestre-Giron appealed the IJ's decision to the BIA, and the BIA dismissed her appeal. The BIA found no clear error in the IJ's finding that Silvestre-Giron's life or freedom was not threatened because of her membership in a particular social group. It also found no clear error in the IJ's finding that Silvestre-Giron was not likely to "suffer torture by or with the consent or acquiescence . . . of a public official in Guatemala."
II. Analysis
Silvestre-Giron petitions for review of the BIA's order. As to her request for withholding of removal, the BIA determined it is not clearly probable her life or freedom will be threatened in Guatemala because of her family membership. As to her request for CAT protection, the BIA determined that she failed to show a public official will inflict, instigate, consent to, or acquiesce in, torture.1
"We review denial of an application for withholding of removal or CAT protection under 'the deferential substantial evidence standard.'" Mendez-Gomez v. Barr, 928 F.3d 728, 733 (8th Cir. 2019) (quoting Osonowo v. Mukasey, 521 F.3d 922, 927 (8th Cir. 2008)). "Only the BIA order is subject to our review, including the IJ's findings and reasoning to the extent they were expressly adopted by the BIA." Id. (quoting Fofanah v. Gonzales, 447 F.3d 1037, 1040 (8th Cir. 2006)). To grant relief, the record evidence must be "so compelling that no reasonable factfinder could fail to find in favor of the petitioner." Id. (quoting Bernal-Rendon v. Gonzales, 419 F.3d 877, 880 (8th Cir. 2005)).
A. Withholding of Removal
An applicant for withholding of removal "must show a 'clear probability,' that [her] 'life or freedom would be threatened in [the potential country of removal] because of [her] race, religion, nationality, membership in a particular social group, or political opinion.'" Mendez-Gomez, 928 F.3d at 733 (second alteration in original) (quoting INS v. Stevic, 467 U.S. 407, 430 (1984); 8 U.S.C. § 1231(b)(3)(A)).
The IJ and the BIA concluded Silvestre-Giron failed to establish the requisite nexus - that her life or freedom would be threatened in Guatemala because of her membership in a particular social group. To establish nexus, an applicant for withholding of removal "bears the burden of showing that [her] membership...
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