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Garcia v. Holder

Facts

Cruz Alberto Garcia, a native of El Salvador, was ordered removed in absentia in 2006 and was removed in 2011. After illegally reentering the U.S. in 2012, he expressed fear of persecution and torture if returned to El Salvador. Garcia testified that he was threatened and beaten by individuals claiming to be police officers who attempted to extort money from him. He believed the extortion was linked to information he provided to a government official. Despite his credible testimony, the immigration judge denied his application for withholding of removal and CAT protection.

Garcia testified that when he returned to El Salvador after being removed, he lived and worked in San Salvador. In August 2011, Garcia submitted documents to renew his national identification card. Soon after, he received a call on his cell phone from a man who said he was from the National Registration Center and needed to verify Garcia's information. The man asked Garcia his name, telephone number, and his address. He also asked Garcia when he last had an identification check. Garcia told him that it had been awhile because he had just returned from the United States.

Issue

The main legal issues were whether Garcia was eligible for withholding of removal under 8 U.S.C. 1231 and whether he qualified for protection under the Convention Against Torture.

The BIA agreed with the IJ's determination that Garcia had not established the requisite likelihood of persecution based on a protected ground.

Rule

The court applied the legal principles that an alien must demonstrate a clear probability of persecution based on a protected ground for withholding of removal, and for CAT protection, the alien must show that torture is likely to occur with the acquiescence of a public official.

Under this provision, the Attorney General may not remove an alien to a country if the alien has demonstrated a clear probability that his 'life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, [**11] or political opinion.'

Analysis

The court found that Garcia's fear of persecution was based on economic extortion rather than a protected ground, thus he was ineligible for withholding of removal. For the CAT claim, the court noted that the immigration judge did not adequately consider whether the extortionists acted with government acquiescence, which warranted remand for further examination of this evidence.

The IJ found that the evidence indicated that the perpetrators who harmed Garcia were motivated solely by economic gain. The IJ concluded that Garcia had not established eligibility for withholding of removal under 1231 because he had not shown that he was harmed on account of a protected ground.

Conclusion

The court denied the petition for review regarding statutory withholding of removal but granted it in part concerning the CAT claim, remanding the case for further consideration.

We deny the petition for review as to statutory withholding, grant the petition for review as to CAT protection, and remand to the BIA for further consideration of Garcia's petition for CAT protection.

Who won?

The government prevailed in the denial of Garcia's application for withholding of removal, as the court found he did not establish a likelihood of persecution based on a protected ground.

The BIA agreed with the IJ that Garcia had not shown that he would be persecuted on account of a protected ground, because neither economic extortion nor being mistaken for an affluent Salvadoran national were protected grounds.

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