Donald Gomez-Alfaro v. William Barr, U. S. Atty Ge ( 2020 )

Case: 18-60724 Document: 00515381926 Page: 1 Date Filed: 04/14/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-60724 April 14, 2020
Summary Calendar
Lyle W. Cayce
Clerk
DONALD GOMEZ-ALFARO,
Petitioner
v.
WILLIAM P. BARR, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A205 520 080
Before BARKSDALE, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
Donald Gomez-Alfaro, a native and citizen of Nicaragua, petitions for
review of the Board of Immigration Appeals’ (BIA) dismissing his appeal from
an Immigration Judge’s (IJ) denying his applications for withholding of
removal and for relief under the Convention Against Torture (CAT). Gomez
testified: in Nicaragua, he witnessed police officers murder his neighbor; two
other police officers later beat him up and threatened to kill him and his family
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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No. 18-60724
if he ever told anyone about what he had witnessed; and he subsequently heard
that police officers were nearby when he was visiting his mother’s house.
Only the BIA’s decision is reviewed, “unless the IJ’s decision has some
impact on the BIA’s decision”. Orellana-Monson v. Holder, 685 F.3d 511, 517
(5th Cir. 2012) (citation omitted). In that regard, factual findings are reviewed
for substantial evidence; legal questions, de novo, giving deference to the BIA’s
interpretation of any ambiguous immigration statutes. Id. at 517–18 (citations
omitted). “Under the substantial[-]evidence standard, reversal is improper
unless the court decides not only that the evidence supports a contrary
conclusion, but also that the evidence compels it.” Id. at 518 (emphasis,
internal quotation marks, and citation omitted); see 8 U.S.C. § 1252(b)(4)(B)
(“[A]dministrative findings of fact are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary”.). It is petitioner’s
burden to demonstrate that the evidence compels a contrary conclusion. Zhao
v. Gonzales, 404 F.3d 295, 306 (5th Cir. 2005) (citation omitted).
For withholding of removal, the alien must establish, inter alia, that his
“life or freedom would be threatened in the proposed country of removal on
account of race, religion, nationality, membership in a particular social group,
or political opinion”. 8 C.F.R. § 1208.16(b). In this instance, both the IJ and
the BIA held Gomez’ proposed social group—witnesses to a crime committed
by a Nicaraguan police officer—failed to qualify as a particular social group for
purposes of withholding of removal because it lacked the requisite social
visibility. See Orellana-Monson, 685 F.3d at 519 (citation omitted). The cases
relied upon by the BIA support its holding. See Jimenez-Padilla v. Sessions,
701 F. App’x 404, 405 (5th Cir. 2017) (citation omitted); Hernandez-De La Cruz
v. Lynch, 819 F.3d 784, 787 (5th Cir. 2016) (citations omitted). Gomez fails to
distinguish these cases from his case and has not met his burden to
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demonstrate that the evidence compels a contrary conclusion. See Zhao, 404
F.3d at 306.
Regarding CAT relief, a successful applicant must demonstrate, inter
alia, that it is more likely than not that he will be tortured if he is removed to
his home country. Majd v. Gonzales, 446 F.3d 590, 595 (5th Cir. 2006)
(citations omitted). Gomez contests various factual findings by the IJ that
were adopted by the BIA, but he fails to cite any evidence compelling the
requisite contrary conclusion. See Martinez Manzanares v. Barr, 925 F.3d 222,
228–29 (5th Cir. 2019) (citations omitted); Chen v. Gonzales, 470 F.3d 1131,
1140 (5th Cir. 2006). Moreover, the IJ’s challenged finding that Gomez could
avoid a likelihood of torture by relocating internally within Nicaragua was
supported by Gomez’ testimony. See Martinez Manzanares, 925 F.3d at 228
(citations omitted); 8 C.F.R. § 208.16(c)(3)(ii).
DENIED.
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