Anita Argueta Diaz De Gomez v. Robert Wilkinson

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-2115
ANITA ELIZABETH ARGUETA DIAZ DE GOMEZ,
Petitioner,
v.
ROBERT M. WILKINSON, Acting Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals.
Argued: October 29, 2020 Decided: February 8, 2021
Before MOTZ, KEENAN, and FLOYD, Circuit Judges.
Petition for review granted by published opinion. Judge Keenan wrote the opinion, in
which Judge Motz and Judge Floyd joined.
ARGUED: Pamela P. Keenan, KIRSCHBAUM, NANNEY, KEENAN & GRIFFIN,
P.A., Raleigh, North Carolina, for Petitioner. John Frederick Stanton, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Joseph
H. Hunt, Assistant Attorney General, Jessica E. Burns, Senior Litigation Counsel, Office
of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.
BARBARA MILANO KEENAN, Circuit Judge:
Anita Elizabeth Argueta Diaz de Gomez petitions for review of the decision of the
Board of Immigration Appeals (Board) dismissing her appeal of the denial of her requests
for asylum, withholding of removal, and protection under the Convention Against Torture
(CAT). Diaz de Gomez claims that she received repeated death threats from a gang in
Guatemala after she and her family witnessed a mass killing by gang members and refused
to acquiesce to the gang’s extortion and other demands.
The immigration judge (IJ) found that Diaz de Gomez was credible and had
corroborated her claims. The IJ and Board nevertheless concluded that Diaz de Gomez
had not established that any persecution she suffered was on account of her familial ties or
another protected ground. The Board also held that Diaz de Gomez had not shown that the
Guatemalan government was unable or unwilling to protect her from this harm. After
rejecting Diaz de Gomez’s additional arguments, the Board dismissed Diaz de Gomez’s
appeal.
Upon our review, we reject the Board’s “excessively narrow” view of the nexus
requirement, and conclude that Diaz de Gomez established that her familial ties were one
central reason for her persecution. Hernandez-Avalos v. Lynch, 784 F.3d 944, 949 (4th
Cir. 2015). We also hold that the record conclusively establishes that the Guatemalan
government was unable or unwilling to control Diaz de Gomez’s persecutors. We therefore
grant the petition for review and remand for the Board to reconsider Diaz de Gomez’s
claims in light of our holdings.
2
I.
Diaz de Gomez, a native and citizen of Guatemala, has a university degree and
worked as a primary schoolteacher in Guatemala for about eight years before fleeing the
country. 1 She entered the United States in 2015 and, shortly thereafter, filed an application
for asylum as well as requests for withholding of removal and protection under the CAT.
Diaz de Gomez’s claims for relief are based on a series of death threats made by
gang members against her beginning in 2008. In November of that year, Diaz de Gomez,
her husband, and other family members witnessed a mass killing conducted by the Zetas,
a Mexican gang operating in Guatemala. When the family stopped at the side of a road
after hearing gunshots, gang members threatened to kill Diaz de Gomez and her husband
if they reported what they had seen. A few weeks later, members of the Zetas began
demanding that Diaz de Gomez’s husband work for the gang, threatening to kill him or
Diaz de Gomez if he refused. After the threats escalated, Diaz de Gomez’s husband fled
to the United States in 2010. Diaz de Gomez remained in Guatemala to continue her work
as a teacher.
Around the same time, the gang sought to recruit Diaz de Gomez’s brother to work
for the gang, and threatened to harm him or his family if he did not acquiesce. He refused
and, in April 2015, the Zetas caused a vehicle to collide with a moped on which Diaz de
Gomez and her brother were riding. Following the collision, the gang kidnapped her
1
Because the IJ found Diaz de Gomez to be credible, we recount the facts to which
she testified at her asylum hearing. See Bedoya v. Barr, 981 F.3d 240, 245 (4th Cir. 2020).
3
brother, severely beat him, and cut off a piece of his tongue. In July 2015, the gang
murdered him for refusing its efforts at recruitment.
After the moped incident with her brother, Diaz de Gomez began to receive death
threats from the Zetas. Gang members followed her to her school, issuing threats in person,
by telephone, by text message, and in writing. Diaz de Gomez testified that, in the gang’s
view, her position as a teacher would have made it easier for her to traffic drugs, but that
she never agreed to the gang’s attempts to recruit her. Around the same time, the gang
attempted to extort Diaz de Gomez’s parents, threatening to kill one of their children if
they did not meet the gang’s demands for money.
Before her brother’s death, Diaz de Gomez reported the threats she received to two
different law enforcement authorities. Despite two additional visits with these authorities,
the government took no action against the members of the Zetas that had been threatening
Diaz de Gomez and her family. Diaz de Gomez testified that she had been afraid to report
the threats earlier, because people who seek police help with gangs tend to “show up dead.”
While visiting her brother’s grave in late 2015, Diaz de Gomez was confronted by
gang members, who told her that she would be killed, like her brother was killed, if she did
not agree to traffic drugs for the gang. Diaz de Gomez ultimately decided to flee to the
United States in November 2015.
The Department of Homeland Security charged Diaz de Gomez with removability
under 8 U.S.C. § 1182(a)(7)(A)(i)(I), for lacking valid entry documents. Diaz de Gomez
conceded removability, but sought asylum, withholding of removal, and protection under
the CAT. The IJ concluded that Diaz de Gomez had testified credibly and had provided
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evidence to corroborate her claims, including evidence of country conditions in Guatemala.
The IJ nevertheless rejected Diaz de Gomez’s asylum claim, concluding that the harm she
suffered was not on account of any statutorily protected ground and that the government
was able and willing to protect her. The IJ also denied Diaz de Gomez’s other claims for
relief. The Board agreed with the IJ and dismissed the appeal. Diaz de Gomez now
petitions for review by this Court.
II.
Diaz de Gomez asserts that the Board erred in concluding that she was not
persecuted based on her membership in the particular social group consisting of her nuclear
family. Although the Zetas generally sought to recruit and extort her and her family
members, Diaz de Gomez contends that her relationship to her brother, husband, and
parents was at least one central reason for the persecution she suffered. She points to the
sequence of events preceding her decision to leave Guatemala, and the fact that the Zetas
explicitly threatened to harm her if her family members did not acquiesce to the gang’s
demands. Diaz de Gomez further argues that the government was unable and unwilling to
protect her from the gang, based on the failure of law enforcement to respond to her
complaints and the influence of the Zetas in the Guatemalan government.
The government responds that the gang targeted Diaz de Gomez and her family for
financial reasons, namely, in order to extort them or recruit them into the gang, rather than
due to their familial relationships. In the government’s view, had Diaz de Gomez
succumbed to the gang’s demand to engage in drug trafficking, the death threats would
5
have stopped, irrespective of her ties to her family. Thus, the government maintains that
Diaz de Gomez was not persecuted “on account of” her familial ties. The government also
argues that Diaz de Gomez did not carry her burden to show that the Guatemalan
government was unable or unwilling to protect her from the Zetas. We disagree with the
government’s arguments.
We will not overturn the agency’s denial of asylum if that decision is supported by
substantial evidence. Tairou v. Whitaker, 909 F.3d 702, 706 (4th Cir. 2018). The agency’s
findings of fact are “conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Moreover, “we accept the factual
predicate to the claim as true in the absence of an adverse credibility determination.”
Bedoya v. Barr, 981 F.3d 240, 245 (4th Cir. 2020).
We review legal questions de novo. Djadjou v. Holder, 662 F.3d 265, 273 (4th Cir.
2011). When, as here, the Board issues a decision without adopting the reasoning of the
IJ, we limit our review to the Board’s final order. Hernandez-Avalos, 784 F.3d at 948.
To establish eligibility for asylum, an applicant must show (1) “a well-founded fear
of persecution,” (2) that arises “on account of a protected ground,” and (3) that the
persecution is “by an organization that the [] government is unable or unwilling to control.”
Id. at 948-49; 8 U.S.C. § 1101(a)(42)(A). Protected grounds include “race, religion,
nationality, membership in a particular social group, [and] political opinion.” 8 U.S.C.
§ 1101(a)(42)(A). An applicant who demonstrates past persecution on account of a
protected ground is entitled to a presumption of a well-founded fear of future persecution.
8 C.F.R. § 1208.13(b)(1); see also Hernandez-Avalos, 784 F.3d at 949.
6
As an initial matter, we conclude that the record establishes that Diaz de Gomez was
subject to past persecution in Guatemala. The IJ found that Diaz de Gomez was credible
in her recitation of the threats she received, and we repeatedly have held that death threats
qualify as past persecution. 2 See Bedoya, 981 F.3d at 246 (citing Zavaleta-Policiano v.
Sessions, 873 F.3d 241, 247 (4th Cir. 2017); Hernandez-Avalos, 784 F.3d at 949; Crespin-
Valladares v. Holder, 632 F.3d 117, 126-27 (4th Cir. 2011)). We will address the
remaining elements of Diaz de Gomez’s asylum claim in turn.
A.
With respect to the second requirement for asylum, we have held that a person’s
nuclear family qualifies as a protected particular social group. 3 Velasquez v. Sessions, 866
F.3d 188, 194 (4th Cir. 2017). At issue in this case is whether Diaz de Gomez has
established that the past persecution she suffered was “on account of” these familial ties.
8 U.S.C. § 1101(a)(42)(A). To establish this nexus, Diaz de Gomez was required to show
2
We reject the government’s insinuation in a footnote that the death threats against
Diaz de Gomez did not amount to persecution because some of them were made to family
members rather than to her directly. The threats Diaz de Gomez received were not
“unspecific” or “distant verbal threats and intimidation.” Cortez-Mendez v. Whitaker, 912
F.3d 205, 209 n.* (4th Cir. 2019). Instead, the gang told Diaz de Gomez’s husband and
parents that Diaz de Gomez would be killed if her family members did not agree to the
gang’s demands. And, in any event, the gang threatened Diaz de Gomez directly numerous
times in 2015, before she fled to the United States.
3
In In re L-E-A, 27 I. & N. Dec. 581, 582 (A.G. 2019), the Attorney General held
that a person’s family constitutes a particular social group only if “it has been shown to be
socially distinct in the eyes of its society, not just those of its alleged persecutor.” However,
the Board did not rely on L-E-A in the present case, and the government does not raise it
on appeal. We therefore continue to apply our longstanding precedent holding that a person
may seek asylum on the basis of their familial ties.
7
that her familial ties were “at least one central reason for the feared persecution.” Crespin-
Valladares, 632 F.3d at 127 (citation and internal quotation marks omitted). And,
importantly, she was not required to prove that her family ties were “the central reason or
even a dominant central reason” for the persecution, but only needed to show that her
family membership was “more than an incidental, tangential, superficial, or subordinate
reason.” Id. (citation and internal quotation marks omitted). Thus, in conducting our
review, we ask whether the evidence showed that Diaz de Gomez’s family affiliation was
one central reason “why she, and not another person, was threatened.” Hernandez-Avalos,
784 F.3d at 950.
The record before us conclusively establishes a nexus between the death threats
made against Diaz de Gomez and her ties to her nuclear family. Three facts are particularly
probative of this nexus. Most notably, the threats to Diaz de Gomez’s family members
first began when multiple members of that family, including Diaz de Gomez, witnessed a
gang killing in 2008. Shortly thereafter, Diaz de Gomez’s husband started receiving
threats, including threats to kill Diaz de Gomez and other family members if he did not
agree to work for the gang. Second, after Diaz de Gomez’s husband fled to the United
States, her brother started receiving death threats to coerce him to join the gang. And third,
Diaz de Gomez began to receive threats personally in 2015, after two key events: (1) the
April 2015 moped collision initiated by the Zetas when gang members saw Diaz de Gomez
with her brother, who had refused to join the gang and was murdered a few months later;
and (2) Diaz de Gomez’s parents’ refusal to acquiesce to the gang’s attempts at extortion.
In both instances, the gang threatened to kill the brother and parents’ family members if
8
they did not agree to the gang’s demands. The timing and context of these threats lead to
the unmistakable conclusion that Diaz de Gomez was targeted, at least for one central
reason, based on her relationship to her family. Zavaleta-Policiano, 873 F.3d at 249
(looking to “key evidence of the context, nature, frequency, and timing of the gang’s
threats” against the applicant and her family).
In light of this evidence, the record conclusively shows that more than one central
reason motivated the gang’s death threats against Diaz de Gomez, namely, her and her
family’s refusal to acquiesce to the gang’s several demands, and Diaz de Gomez’s familial
ties to her brother, husband, and parents. As we previously have emphasized, the fact that
the gang sought to recruit Diaz de Gomez and her family members does not preclude a
finding that her familial ties were another central reason that she was persecuted by the
gang, establishing the required nexus. See Cordova v. Holder, 759 F.3d 332, 339-40 (4th
Cir. 2014); Hernandez-Avalos, 784 F.3d at 950 (explaining that there can be “multiple
central reasons” underlying a person’s persecution). And although Diaz de Gomez’s
position as a teacher may have made her an attractive target for gang recruitment, she only
began receiving threats personally after the gang associated her with her brother following
the moped incident. 4 See Cruz v. Sessions, 853 F.3d 122, 129 (4th Cir. 2017) (explaining
4
Our conclusion is not altered by Diaz de Gomez’s statement agreeing with the
government that the threats were unrelated to her “last name.” She immediately proceeded
to clarify her response during her testimony. And, in any event, we decline to “cherry
pick” this isolated statement out of context. For the reasons discussed above, the record
conclusively demonstrates that the Zetas’s recruitment efforts were intertwined with the
gang’s repeated threats to retaliate against Diaz de Gomez based on her family members’
refusal to acquiesce to the gang’s demands.
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that a family relationship can be one central reason for persecution even if it is
“intertwined” with the persecutor’s other motivations).
Given the express threats that the gang would hurt Diaz de Gomez if her family
members did not accede to the gang’s demands, we are left with no doubt that Diaz de
Gomez’s family relationship was “more than an incidental, tangential, superficial, or
subordinate reason” for her persecution. Hernandez-Avalos, 784 F.3d at 949 (internal
quotation marks omitted). As in many recent cases, the Board’s contrary conclusion is an
“excessively narrow reading” of the nexus requirement that is not supported by our
precedent. Id.; see also, e.g., Cruz, 853 F.3d at 128 (“[W]e have been compelled to disagree
with several of the BIA’s recent decisions holding that an applicant failed to meet the
statutory nexus requirement for obtaining relief from removal.”); Salgado-Sosa v. Sessions,
882 F.3d 451, 458 (4th Cir. 2018) (holding that the IJ and the Board “erred by focusing
narrowly on the ‘immediate trigger’” for the threats without considering the “relationships
that prompted the asserted persecution”); Oliva v. Lynch, 807 F.3d 53, 60 (4th Cir. 2015)
(noting that the Board drew “too fine” a distinction regarding the nexus requirement). For
these reasons, we conclude that the record indisputably shows that Diaz de Gomez has
satisfied her burden to show that she was persecuted on account of a statutorily protected
ground, namely, the particular social group of her nuclear family. 5
B.
5Because we conclude that her familial ties were one central reason for her
persecution, we do not address the other particular social groups that Diaz de Gomez has
asserted.
10
We turn to consider Diaz de Gomez’s argument that the Board erred in concluding
that the Guatemalan government was willing and able to protect her from persecution. She
notes that two law enforcement agencies failed to respond to her complaints despite her
multiple requests for help. She also points to record documentation showing the Zetas’s
influence over local government and law enforcement officials in Guatemala, which
corruption prevented the authorities from taking action against members of the gang.
Relying primarily on out-of-circuit cases, the government asserts that a “slow and
cumbersome” law enforcement process does not justify a grant of asylum. The government
instead argues that the Guatemalan government was taking active steps to combat gang
activity in the country. With respect to Diaz de Gomez specifically, the government faults
her for leaving for the United States soon after filing her police report. We disagree with
the government’s arguments.
“When an applicant claims that she fears persecution by a private actor, she must
also show that the government in her native country ‘is unable or unwilling to control’ her
persecutor.” Orellana v. Barr, 925 F.3d 145, 151 (4th Cir. 2019) (quoting Hernandez-
Avalos, 784 F.3d at 949). Evidence of “widespread gang influence and corruption” in the
judicial system, together with an applicant’s credible testimony, can be sufficient to
establish the government’s inability or unwillingness to offer protection. Hernandez-
Avalos, 784 F.3d at 952-53. The issue whether the government was unable or unwilling to
control the actions of a persecutor “is a factual question that must be resolved based on the
record in each case.” Crespin-Valladares, 632 F.3d at 128 (citation omitted).
11
Diaz de Gomez provided credible testimony that she reported the escalating threats
against her to the police in 2015, following the moped accident. She stated that she had
been afraid to report the threats earlier, because people tend to “just show up dead” after
filing police reports. To support her allegations, she showed law enforcement officers the
written messages she had received, and also provided audio recordings of the telephone
threats. She reported the threats to both the public affairs ministry and to the local police.
Neither law enforcement agency took any action in response to the reports; no one was
arrested, and officials never provided Diaz de Gomez any updates on the investigation.
She returned to the police station twice to check on the status of the investigation, and was
told both times that the person in charge of her case was unavailable. A friend who
followed up after Diaz de Gomez left for the United States received the same response.
This lack of action by law enforcement authorities is consistent with evidence of
country conditions that Diaz de Gomez submitted to corroborate her claims. The 2015
Department of State Country Report on Human Rights Practices noted Guatemala’s
“widespread institutional corruption, particularly in the police and judicial sectors,”
including the involvement of police and military officers in drug trafficking and extortion.
Referencing the Zetas specifically, one 2010 academic study explained that the gang has a
“propensity to attack state institutions,” including by bribing police and judicial officials
and “infiltrat[ing] [the gang’s] supporters into the civil service.” Approximately $1 billion
of drug proceeds is used to bribe Guatemalan government officials annually, and
“corruption is rampant at the local level.” Notably, “organized crime has infested so many
12
[Guatemalan] state institutions as to render them virtually worthless,” and the government
has “fail[ed] to provide even a minimal level of domestic security.” 6
This evidence of “widespread gang influence and corruption,” together with Diaz
de Gomez’s credible testimony regarding her fear of reporting the Zetas and the failure of
law enforcement to investigate her claim, leads to the inescapable conclusion that the
government was unwilling or unable to protect her from her persecutors. See Hernandez-
Avalos, 784 F.3d at 952-53. And, relevant here, the government’s “empty or token
‘assistance’ cannot serve as the basis of a finding” that the Guatemalan government was
willing and able to protect Diaz de Gomez. Orellana, 925 F.3d at 153. It is undisputed
that no action was taken on Diaz de Gomez’s complaints to law enforcement but, instead,
the death threats escalated. In light of her multiple failed attempts to secure protection
from law enforcement authorities in Guatemala, coupled with the persuasive evidence of
the Zetas’s corruptive influence on the Guatemalan government, the record conclusively
shows that the government was unwilling or unable to control her persecutors.
6
The record contains evidence that some members of the Zetas were arrested in
Guatemala between 2010 and 2015. The news articles reporting these arrests also
emphasize the significant influence of the Zetas in Guatemala, including the fact that law
enforcement agencies had been infiltrated by members of the gang. Irrespective of these
arrests, however, the other evidence in the record establishes that the government was
unable or unwilling to protect Diaz de Gomez from her persecutors. See Hernandez-
Avalos, 784 F.3d at 952 n.8 (“To the extent the IJ suggested that the gang member’s
imprisonment for unrelated killings in any way supports the inference that the Salvadoran
authorities would have been responsive to Hernandez’s complaints, that conclusion is
unwarranted.”).
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III.
In sum, we conclude that the Board erred in holding that Diaz de Gomez failed to
establish that she suffered past persecution on account of her ties to her nuclear family and
that the government was able and willing to protect her. We remand the case for further
consideration so that Diaz de Gomez may receive the benefit of the presumption that she
has a well-founded fear of future persecution if she returns to Guatemala. See Naizgi v.
Gonzales, 455 F.3d 484, 486 (4th Cir. 2006); 8 C.F.R. § 1208.13(b)(1). We therefore do
not reach the Board’s further rulings, including (1) Diaz de Gomez’s ability to relocate
safely within Guatemala, and (2) her additional claims for asylum on humanitarian
grounds, for withholding of removal, and for protection under the CAT. We remand all
these issues to the Board for reconsideration in light of our holding.
PETITION FOR REVIEW GRANTED
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