Evelyn Gomez Villatoro v. Jefferson Sessions III

680 F. App'x 212
CourtCourt of Appeals for the Fourth Circuit
DecidedMarch 2, 2017
Docket15-2576
StatusUnpublished
Cited by2 cases

This text of 680 F. App'x 212 (Evelyn Gomez Villatoro v. Jefferson Sessions III) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Evelyn Gomez Villatoro v. Jefferson Sessions III, 680 F. App'x 212 (4th Cir. 2017).

Opinions

Unpublished opinions are not binding precedent in this circuit.

FLOYD, Circuit Judge:

Petitioners Evelyn Gomez-Villatoro (“Gomez”) and her minor son, C. J. Gomez-Villatoro, citizens and natives of Honduras, had their asylum petitions rejected by both an Immigration Judge (IJ) and the Board of Immigration Appeals (BIA). Because the BIA’s decision represents a mis[214]*214application of our precedent, we reverse, and remand with instructions to grant the asylum petitions.

I.

A.

Gomez and her minor son, citizens and natives of Honduras, entered the United States on or about September 25, 2012, when Gomez was nineteen years old and her son was three months old. They entered on B-2 tourist visas that required them to depart the United States on or before December 25, 2012. However, both overstayed their visas. On or about January 7, 2013, Gomez filed an application for asylum, including her minor son as a derivative applicant.1 In addition to seeking asylum, Gomez sought removal of withholding, as well as protection under the Convention Against Torture (CAT).2 Gomez appeared to base her claims on her father’s and her brother’s religious activities, and on her membership in her family. During the pen-dency of her application, Gomez gave birth to a second child in the United States, who is a citizen by birth.

After initial procedural issues, Gomez eventually appeared for a hearing on August 19, 2014, before IJ David W. Cross-land in Baltimore, Maryland. The IJ denied her application in full. Gomez then appealed to the BIA which dismissed the appeal in a single-judge written order and opinion on December 3, 2015, affirming the IJ’s decision. Gomez now petitions this Court for relief, and we exercise jurisdiction pursuant to Section 242 of the Immigration and Nationality Act (INA), 8 U.S.C. § 1252.

B.

In Honduras, Gomez was part of a fairly well-off family. The family owned a working farm that employed six to eight people and had approximately 200 head of cattle in addition to several chickens and hogs. Gomez and her family were also active members of the Evangelical Church in their community, located in Sonaguera within the Department of Colón. According to Gomez, her father led the men’s fellowship group, where he would preach that it was against their Christian faith to pay money to gangs and also warned the men not to support the gangs. Gomez further alleged that beginning in 2010, when she was seventeen, she and her family began receiving threats from members of MS-13, a prominent gang in Honduras. Gomez alleged and testified that it was because of these religion-based threats made against her family, and the ensuing deaths of her father and brother, that she feared return to Honduras.

At her hearing, Gomez explained to the IJ that her father received threatening texts from the gangs demanding that he stop preaching, which her father showed to her brother, and which her brother then told her about. Gomez’s father was subsequently killed on July 5, 2011—when Gomez was seventeen years old—allegedly by members of MS-13. In April 2012, after her father’s death, Gomez came to the United States on a tourist visa, and then [215]*215returned to Honduras. When asked why she did not file for asylum at that point, she told the IJ that she “thought that after that,, things were going to be calmer,” and that she “didn’t think they were going to continue receiving threats.” A.R. 96.3

Gomez also testified at her hearing that her brother began preaching against the gangs once her father was killed, and that soon after her brother also received threatening text messages about preaching. These texts messages were not seen by Gomez either, but instead shown to the brother’s friend, who told Gomez’s mother, who ultimately told Gomez. Gomez’s brother was then killed on June 18, 2012, also allegedly by members of MS-13. Following the death of Gomez’s brother, Gomez’s mother entered the United States alone. Gomez’s mother filed an asylum request at that time. Gomez then entered the country, as mentioned above, on or about September 25, 2012.

Gomez testified to the IJ that she feared persecution by members of the MS-13 gang because of her father and brother, and that “what [the gang members] wanted to do was punish him and all of us because of the—of his preachings.” A.R. 102. The IJ then further asked, “So why would they kill you now?” to which Gomez replied, “Because if we go back there, they are angry because of what my father used to preach about, and if we go back there, they’re going to kill us all as well.” Id. Gomez also related to the IJ that members of MS-13 once stopped her when leaving school after her father had been killed and told her that “the next one dying, it was going to be [her].” A.R. 97-98. She also told the IJ that once her father and brother were deceased, her mother received the same threatening text messages her father and brother used to receive. She testified that the messages only stopped when her mother changed phone numbers.

Gomez told the IJ that she was not aware of anyone else in her community of approximately 6,000 people being threatened by the gangs, nor was she aware of anyone specifically in her church of between 40 and 50 people being threatened by the gangs. The IJ took issue with this assertion. He asked Gomez to explain why her father and brother would be preaching to the members of the church about a problem with gangs such that they brought significant trouble upon themselves if there was never an issue with gangs in the first place, to which Gomez replied that she was young at the time and was simply unaware.

The IJ then asked Gomez specifically, “W[ere] your father and family targeted for money because of your, your—the standard of living you enjoyed and what may have been a fairly high standard of living and success?” to which Gomez replied, “No, it, it was because of what my father was preaching about.” A.R. 114.

Despite being prepared to testify at the hearing, Gomez’s mother did not testify because she had her asylum hearing the following week before the same IJ. However, she did submit a written affidavit on behalf of Gomez. Gomez also submitted her own sworn affidavit into the record, in addition to her own live testimony before the IJ. In their affidavits, Gomez and her mother both stated that the family received threats that they would all be killed if Gomez’s father did not pay the gangs, and that the threats were motivated by religious preaching. A.R. 154 ¶¶ 9-10, 162 ¶¶ 10-11. They also both stated that the [216]*216gangs called and sent messages at odd times “stating that they knew exactly where [the family members] were,” and that they would see the gangs soon if they refused to pay. A.R. 154 ¶ 13, 162 ¶ 14. Gomez’s mother also stated that the threats from the gangs were that she and her children “would follow the path of [her] husband if [they] did not pay the money [the gangs] had demanded.” A.R. 162 ¶ 16.

The record also contained affidavits from the head of Gomez’s evangelical church, as well as friends and family from Honduras. The pastor stated that Gomez’s mother was forced to leave the country, but did not offer that Gomez’s father and brother were killed due to their pastoral activities. See A.R. 207.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
680 F. App'x 212, Counsel Stack Legal Research, https://law.counselstack.com/opinion/evelyn-gomez-villatoro-v-jefferson-sessions-iii-ca4-2017.