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Godinez v. Barr

United States Court of Appeals, Eighth Circuit

July 8, 2019

Andrea Wences Godinez; Kelly Michell Wences Godinez, also known as Kelly Michelle Wences Godinez; Caleb Moises Wences Godinez; Victorina Godines Alarcon, also known as Victorina Godinez Alarcon Petitioners
v.
William P. Barr, Attorney General of the United States Respondent

          Submitted: January 15, 2019

          Petition for Review of an Order of the Board of Immigration Appeals

          Before BENTON, MELLOY, and KELLY, Circuit Judges.

          MELLOY, CIRCUIT JUDGE

         Petitioner Andrea Wences Godinez ("Andrea") and two of her children, Kelly and Caleb, along with Andrea's mother, Victorina Godines Alarcon ("Victorina"), appeal the Board of Immigration Appeals' (BIA) denial of asylum and withholding of removal. The BIA determined as a factual matter that the Petitioners did not experience past persecution or face the requisite risk of future persecution on account of a protected basis. Specifically, Andrea did not belong to the asserted "particular social group" of "women who are in abusive relationships in Mexico that they can't leave," and Victorina was not persecuted on account of her familial relationship with Andrea. The BIA also determined Petitioners could relocate within their home country. Because the record does not compel reversal of the BIA's factual determinations, we affirm.

         I.

         Petitioners are natives and citizens of Mexico. On November 25, 2015, Andrea, Victorina, Kelly, and Caleb were apprehended at a port of entry between the United States and Mexico. They later conceded removability and sought asylum and withholding of removal based on the following facts as asserted in testimony and written declarations.

         Andrea had been in a relationship with a man named Jose. They lived together for seven months in 2010 at a location several hours away from Andrea's hometown. Andrea became pregnant then fell ill during her pregnancy. She felt she was an unwelcome financial burden to Jose's family. As a result, Andrea left Jose and returned to her hometown to live with her mother, Victorina. Kelly was born in March 2011.

         In May 2011, Andrea left for Tijuana to find work. There, she met a man named Diego and moved in with him. She discovered she was pregnant in October 2013. During the pregnancy, Diego hit her in the head and pushed her. She called the police, but in response to Diego's begging, she did not speak to officers who responded. Later, Diego slapped her. Subsequently, Diego locked Andrea in the house, would not let her leave, and repeatedly raped her. Andrea eventually escaped, walked to a friend's house, and called the police. The police did not take action against Diego. Eventually she was able to obtain assistance with travel and reach her mother's home.

         Jose had not attempted to contact Andrea after she left him and moved to Tijuana. In 2014, however, they renewed their relationship. Jose moved into Victorina's home with Andrea while Andrea was still pregnant with Diego's child, Caleb. After Andrea gave birth to Caleb, Jose deceived Andrea regarding the use of birth control, and Andrea again became pregnant. Jose and Andrea's relationship soured, she began to distrust him, and they started arguing. Eventually, she demanded that he leave the house, at which time he claimed that he worked for a drug dealer without saying specifically what work he performed. Andrea heard rumors that the drug dealer was also involved in murder for hire. Andrea did not know if Jose's statements were true. She believed Jose might have claimed a connection to the drug dealer as a means of frightening her so she would not end their relationship.

         On November 7, 2015, Andrea and Jose argued in the morning. He eventually left, but returned at around one o'clock the following morning, entering the house loudly and threatening the family with a pistol. He pointed the gun at Andrea, Victorina, and the children and threatened to kill all of them. The encounter lasted four hours, after which time, Jose said he would not kill Andrea while she was pregnant. He eventually gathered his belongings and left but threatened to return to kill Andrea and take his child after the child's birth. Andrea and Victorina reported the incident to the police and filed a report, but the police refused to act on the report.

         A period of weeks after Jose threatened them with the gun, the family left for the United States. In the weeks between the violent encounter and the family's exodus, Jose did not issue additional threats. Andrea reported, however, that he passed by her home once. Andrea testified that, after she arrived in the United States, her uncle obtained a copy of the police report, but Jose threatened to harm her uncle if he disclosed the report.

         At some point after Petitioners entered the United States, Jose sent Andrea a friend request on Facebook. Andrea rejected the request. In addition, Diego's sister contacted Andrea through Facebook to ask if a picture Andrea had posted was Caleb, Diego's son. Eventually, Diego found Andrea's number and called, asking if Caleb was his son. Andrea told him to quit calling her and refused to answer future calls. Andrea testified that Diego had not attempted to contact her after she left Tijuana and before he called her in the United States. Finally, Andrea testified that she no longer fears future harm from Diego.

         Based on the foregoing, an immigration judge (IJ) found Andrea and Victorina credible but reached several conclusions adverse to their applications. The IJ relied on Andrea's concession that she no longer feared harm from Diego to find that Andrea did not face a risk of future violence from Diego. Regarding Jose, the IJ found the one incident of violence did not amount to past persecution and also found Andrea failed to carry her burden of proving a fear of future persecution in light of: (1) the relatively short duration of her two different relationships with Jose; (2) the fact that Jose did not ...


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