Gustavo Alvarez-Gomez v. Merrick Garland, No. 21-2279 (8th Cir. 2022)
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Petitioner a citizen of El Salvador, petitions the court for review of the denial of his application for withholding of removal under the Immigration and Nationality Act (INA) and reversal of withholding of removal under the Convention Against Torture (CAT). Petitioner has serious cognitive impairments, and while living in El Salvador he was recruited by gang members who attacked and threatened him when he refused to join.
The Eighth Circuit denied in part and granted in part. The court explained that it would have had jurisdiction to review Petitioner’s argument that the IJ applied an incorrect legal standard for determining the nexus between past persecution and any protected characteristics. But Petitioner waived this argument by raising it for the first time in his petition for review, not on appeal to the BIA.
However, the court held that the BIA did not provide sufficient justification for reversal, failing to identify reasons grounded in the record that are sufficient to satisfy a reasonable mind that the IJ clearly erred in its factual findings. The government urges affirmance, pointing to the thoroughness of the BIA’s decision and its extensive citations to the administrative record. But these features of the BIA’s decision do not establish that substantial evidence in the record supports the BIA’s decision here. Accordingly, the court granted the petition for review with respect to Petitioner’s application for withholding under the CAT.
Court Description: [Kelly, Author, with Loken, Circuit Judge, and Menendez, District Judge] Petition for Review - Immigration. The issue presented by petitioner's challenge to the agency's decision to deny withholding of removal is a question of fact, which this court lacks jurisdiction to review; while the court would have jurisdiction to consider the question of whether the IJ applied the correct legal standard for determining the nexus between past persecution and any protected characteristics, petitioner has waived this issue by failing to raise it before the BIA; in overturning the IJ's findings concerning CAT relief, the reasons the BIA offered for rejecting the IJ's findings are insufficient to satisfy a reasonable mind that the IJ clearly erred; the petition for review with respect to petitioner's application for withholding of removal under the CAT is granted. Judge Loken, concurring in part and dissenting in part. [ December 27, 2022 ]
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