United States Court of Appeals For the Eighth Circuit ___________________________ No. 21-2279 ___________________________ Gustavo Alexis Alvarez-Gomez Petitioner v. Merrick B. Garland, Attorney General of the United States Respondent ____________ Petition for Review of an Order of the Board of Immigration Appeals ____________ Submitted: June 16, 2022 Filed: December 28, 2022 ____________ Before LOKEN and KELLY, Circuit Judges, and MENENDEZ, District Judge.1 ____________ KELLY, Circuit Judge. Gustavo Alexis Alvarez-Gomez, a citizen of El Salvador, petitions this 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). Alvarez-Gomez has serious cognitive 1 The Honorable Katherine M. Menendez, United States District Judge for the District of Minnesota, sitting by designation. impairments, and while living in El Salvador he was recruited by gang members who attacked and threatened him when he refused to join. We deny in part, and grant in part, Alvarez-Gomez’s petition for review. I. On May 8, 2020, Alvarez-Gomez was convicted by a jury in the Southern District of Illinois for illegal possession of a firearm under 18 U.S.C. § 922(g)(5)(A), and sentenced to time served. The Department of Homeland Security (DHS) issued a final order of removal pursuant to 8 U.S.C. § 1228(b), because the conviction qualified as an aggravated felony under 8 U.S.C. § 1101(a)(43)(E). Alvarez-Gomez expressed a fear of returning to El Salvador. An asylum officer conducted a reasonable fear interview and found Alvarez-Gomez credible but his fear of persecution or torture in El Salvador not reasonable. After a hearing, the Immigration Judge (IJ) vacated the officer’s decision and placed Alvarez-Gomez into withholding-only proceedings to review his eligibility for protection. Alvarez-Gomez applied for withholding of removal under both the INA, 8 U.S.C. § 1231(b)(3), and the CAT, 8 C.F.R. § 1208.16(b), (c). Alvarez-Gomez claimed that he feared persecution or torture in El Salvador based on efforts by gang members to recruit him, which he refused, and their subsequent retaliation through threats and physical attacks. He asserted that his § 1231(b)(3) withholding of removal claim was based on membership in a particular social group, including persons with disabilities, persons with mental or cognitive disabilities, or persons with disabilities who are known witnesses of gang criminal activity and/or reported gang criminal activity to police. Alvarez-Gomez moved for a competency evaluation, under Matter of M-A- M-, 25 I. & N. Dec. 474 (BIA 2011). He cannot read or write; has memory, comprehension, and concentration issues; and did not progress past the first grade in school. An evaluation showed that Alvarez-Gomez has severe cognitive impairment, with an IQ of 55, which places him in the lowest 0.1 percentile. The IJ -2- concluded that Alvarez-Gomez was not competent to stand removal proceedings and instituted a number of safeguards: representation by counsel; use of leading questions; taking breaks; and participation by his mother, Alma, to help prepare the case and communicate with Alvarez-Gomez throughout the proceedings. Neither party disputes the sufficiency of …
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals