Osvaldo Gomez-Guzman v. Eric Holder, Jr.

485 F. App'x 64
CourtCourt of Appeals for the Sixth Circuit
DecidedJune 15, 2012
Docket11-3006
StatusUnpublished
Cited by4 cases

This text of 485 F. App'x 64 (Osvaldo Gomez-Guzman v. Eric Holder, Jr.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Osvaldo Gomez-Guzman v. Eric Holder, Jr., 485 F. App'x 64 (6th Cir. 2012).

Opinion

*65 OPINION

HELENE N. WHITE, Circuit Judge.

Osvaldo Gomez-Guzman (“Gomez”) seeks review of a Board of Immigration Appeals (“BIA”) order denying his application for asylum. We AFFIRM.

I.

Gomez was born in 1989 in San Martin, Sacatepequez, Guatemala. 1 A year later, Gomez and his mother moved to Concepcion, Chiquirichapa, Guatemala, where they lived with Gomez’s stepfather and four half-siblings. Because the family needed money, when Gomez was eleven years-old, Gomez’s stepfather forced him to quit school and start working in construction. In that job, he mixed cement, loaded blocks of cement, climbed on roofs, and did any other work his employer wanted. It took Gomez between thirty and forty-five minutes to walk to work each day, and he usually worked from 7:00 a.m. to 4:30 p.m., six or seven days a week.

He testified that the work was dangerous and that he once hurt his forearm while working, but he still went to work the next day. If he did not go to work, his stepfather would beat him or withhold food. On one occasion, his stepfather beat him so badly that he could not breathe or go to work the next day. For the work Gomez performed, his employer paid the equivalent of $2 to $3 per day directly to Gomez’s stepfather. Gomez testified that he had no free time or friends because he was required to do additional housework once he got home, and he was unable to run away because he never had the opportunity. His half-siblings did not work because they were “very little” then.

When he was seventeen, Gomez discovered he had an uncle in San Martin and went to live with him. During the time he lived there, his uncle treated him well and did not make him work. Because the house was too small and his uncle had children, Gomez could not live with his uncle permanently. Nor could Gomez live on his own as an adult because, according to his testimony, he had no family or home, and he did not make enough money. While living with his uncle, Gomez discovered that he had additional siblings. One brother, Adrian, who lives in the United States, paid for Gomez to cross the border. Gomez testified that if he went back to Guatemala, he could potentially earn around fifty quetzals 2 per day, but that he was not certain. Gomez also explained that he was afraid to return to Guatemala because gangs assume that people from the United States have money and might harm him and, further, that he has “nothing to go back to.”

Gomez entered the United States without inspection around September 16, 2007 near Naco, Arizona, and he was apprehended by a border patrol agent on September 20, 2007. The Department of Homeland Security initiated removal proceedings against him on September 22, 2007. On August 4, 2008, he conceded removability. On September 8, 2008, he applied for asylum and withholding of removal under the Immigration and Nationality Act (“INA”) and protection under the Convention Against Torture (“CAT”).

*66 At the merits hearing, Gomez’s counsel conceded that Gomez no longer maintained a fear of future persecution and withdrew the withholding of removal and CAT claims. He nevertheless argued that he was subject to past persecution on account of his membership in a particular social group: Guatemalan children under age fourteen. Accordingly, Gomez asserted that he remained eligible for asylum pursuant to Matter of Chen, 20 I. & N. Dec. 16, 19 (BIA 1989), due to the severity of the persecution he experienced and the possibility of future harm.

In an oral decision, the IJ noted that Gomez was credible and sympathetic. The IJ nevertheless denied the application because Guatemalan children under fourteen is not a particular social group cognizable under the INA. Gomez appealed to the BIA, which affirmed the IJ’s decision. Gomez timely petitioned this court for review.

II.

“Because the BIA adopted and supplemented the IJ’s decision, [this court] review[s] the opinion of the IJ in conjunction with the BIA’s additional comments and discussion.” Cruz-Samayoa v. Holder, 607 F.3d 1145, 1149 (6th Cir.2010) (citation omitted). “Questions of law are reviewed de novo,” and factual findings are conclusive unless a reasonable adjudicator would be “compelled to conclude to the contrary.” Khalili v. Holder, 557 F.3d 429, 435 (6th Cir.2009). Generally, the BIA’s interpretation of the INA -will be upheld unless the interpretation is “arbitrary, capricious, or manifestly contrary to the statute.” Id.

When considering an application for asylum, this court asks two questions: (1) whether the applicant qualifies as a refugee as defined in 8 U.S.C. § 1101(a)(42)(A); and (2) whether the applicant merits a favorable exercise of discretion by the Attorney General. Cruz-Samayoa, 607 F.3d at 1150 (citation and internal quotation marks omitted). A “refugee” is a person who is unable or unwilling to return to her home country because of past persecution or a well-founded fear of persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A); Abdurakhmanov v. Holder, 666 F.3d 978, 981 (6th Cir.2012) (citation omitted). “If the ill-treatment was motivated by something other than one of these five circumstances, then the applicant cannot be considered a refugee for purposes of asylum.” Zoarab v. Mukasey, 524 F.3d 777, 780 (6th Cir.2008); see also Cruz, 607 F.3d at 1150 (noting a person may qualify as a refugee on the basis of past persecution). Gomez bears the burden of establishing he meets the definition of refugee. Bonilla-Morales v. Holder, 607 F.3d 1132, 1136 (6th Cir.2010).

III.

Gomez seeks asylum on the ground that he was persecuted as a member of a particular social group. 8 U.S.C. § 1101(a)(42)(A). The IJ found Gomez credible, a finding not challenged in this appeal. The IJ and the BIA nevertheless rejected Gomez’s application on the basis that the proposed group — Guatemalan children under the age of fourteen — is not cognizable under the INA as a particular social group. The phrase “particular social group” is not defined in the statute. Kante v. Holder, 634 F.3d 321, 327 (6th Cir.2011). Generally, courts and the BIA have recognized a particular social group if the group: (1) shares a common, immutable characteristic; (2) is sufficiently particularized; and, (3) possesses a certain level of social visibility. See Bonilla-Morales, 607 F.3d at 1137; Al-Ghorbani v. Holder,

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