Boj Xum v. Holder, Jr. , 407 F. App'x 495 ( 2011 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
Nos. 09-1477
09-1478
ISAIAS PEREZ SOCOP,
ISABEL BOJ XUM,
Petitioners,
v.
ERIC H. HOLDER, JR., United States Attorney General,
Respondent.
PETITIONS FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Boudin and Howard, Circuit Judges.
Stephen M. Born and Mills and Born, Attorneys at Law were on
brief for petitioners.
Tony West, Assistant Attorney General, Richard M. Evans,
Assistant Director and Kevin J. Conway, Attorney, Office of
Immigration Litigation, Civil Division, United States Department of
Justice, were on brief for respondent.
January 31, 2011
HOWARD, Circuit Judge. Isaias Perez Socop ("Perez") and
his spouse Isabel Boj Xum ("Boj"), both natives and citizens of
Guatemala, entered the United States illegally and were placed in
removal proceedings. Conceding removability, both sought
withholding of removal on the ground that it was more likely than
not that they would be persecuted if they returned to Guatemala.
Claims for withholding of removal require the persecution
in question to be "on account of" one of five protected grounds:
"race, religion, nationality, membership in a particular social
group or political opinion." See 8 U.S.C. § 1231(b)(3)(A). In
addition to each petitioner's claims based on asserted group
membership, the petitioners also claimed that Perez's resistance to
gang recruitment qualified as "political opinion" for which they
faced persecution.
An Immigration Judge ("IJ") denied their applications,
and the Board of Immigration Appeals ("BIA") affirmed the denials.
The Board's rationale was the same in both cases: the petitioners
had failed to identify a protected ground on which to base their
withholding of removal claims. The BIA concluded that the social
groups in which the petitioners claimed membership were not
cognizable "particular social group[s]" within the meaning of the
statute. The Board further concluded that Perez's resistance to
gang recruitment, standing alone, did not qualify as a "political
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opinion" and that the gangs did not impute a political opinion to
his spouse based on this resistance.
Perez and Boj individually petitioned for judicial review
of the BIA's orders. We deny the petitions, except for an
unexhausted claim which we dismiss.
I. Facts
The facts presented here are undisputed. Both Perez and
Boj were born in a small Guatemalan village to families of
indigenous Mayan Quiche ancestry. They married at a young age. At
some point, Perez began a construction job in Guatemala City,
returning to his village and family on weekends. While he was
working at this job, members from a gang -- the "Maras" --
approached him and attempted to recruit him. Perez refused to
join, testifying later that he was opposed to the gang's practices
and values. His refusal to join resulted in the gang demanding
half of his weekly salary as "penitence." Perez paid this money,
fearing that if he did not pay, the gang would harm him or his
family as it had others who refused to make payments.
Perez paid this money for approximately five years. In
2000, however, tired of paying the gang, Perez decided to leave for
the United States. Because he could not afford to bring his wife
and two children with him, Perez planned to send for them when he
had earned enough money.
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When the extorted payments ceased, the gang sent one of
its members, Mauricio Ismael, to harass Boj. Ismael raped Boj
repeatedly over the course of three months. Boj became pregnant as
a result but miscarried after being beaten by Ismael. Boj never
reported these crimes to the government in Guatemala, because, she
testified, of her belief that the government ignores complaints
from indigenous women.
Eventually, Perez sent money to Boj so that she and their
children could join him in the United States. After her arrival,
Boj was treated for mental health problems arising from her
experiences in Guatemala.
In support of their requests for withholding of removal,
Perez and Boj submitted documentary evidence of country conditions
in Guatemala, including a U.S. Department of State Country Report
for 2006. This evidence revealed that "societal violence [in
Guatemala] was widespread" with non-state actors (including gangs)
committing "hundreds of killings and other crimes." The gangs
preyed on women in particular, with authorities attributing to
gangs many of the gender-based crimes, including sexual assault and
murder. The evidence also indicated, however, that the Guatemalan
government had made efforts to combat the gang menace. A 2005
report stated that Guatemala's president supported "both
strengthening law enforcement capacity to combat criminal gangs,
and expanding gang prevention and social rehabilitation programs."
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It also noted that the "Guatemalan Congress is considering tough
anti-gang legislation that would try gang members ages 12 and older
as adults, and establish lengthy sentences for gang leaders."
As stated, the IJ rejected the petitioners' withholding
claims, and the BIA affirmed.
II. Discussion
A. Standards of review
We review the agency's findings of fact under the
"substantial evidence" standard, upholding those findings "if
supported by reasonable, substantial, and probative evidence on the
record considered as a whole." Castillo-Diaz v. Holder, 562 F.3d
23, 26 (1st Cir. 2009) (internal quotation marks omitted). This
standard of review is deferential; we will reverse only if the
record evidence would compel a reasonable factfinder to make a
contrary determination. 8 U.S.C. § 1252(b)(4)(B). We review the
agency's abstract legal determinations de novo. Lopez-Castro v.
Holder, 577 F.3d 49, 52 (1st Cir. 2009). We accord deference,
however, to the agency's reasonable interpretations of statutes and
regulations that fall within its purview. Id.In the cases before us, the BIA affirmed the decisions of
the IJ with written decisions of its own. In such cases, we review
the BIA's decisions, in addition to any portions of the IJ's
decisions adopted by the Board. Kho v. Keisler, 505 F.3d 50, 53
(1st Cir. 2007).
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B. Withholding of removal
To qualify for withholding of removal, an alien must
prove that, if she is repatriated, it is more likely than not that
she will be persecuted on account of one of five protected grounds:
race, religion, nationality, membership in a particular social
group or political opinion. Pan v. Gonzales, 489 F.3d 80, 85-86
(1st Cir. 2007). To qualify as persecution, a petitioner's
experience "must rise above unpleasantness, harassment, and even
basic suffering." Decky v. Holder, 587 F.3d 104, 110 (1st Cir.
2009). Moreover, "[p]ersecution, within the context of the
immigration statutes, does not include all treatment that our
society regards as unfair, unjust, or even unlawful or
unconstitutional." Id. (quoting Kho v. Keisler, 505 F.3d 50, 58
(1st Cir. 2007)).
1. Perez
Perez claimed that he was persecuted and would face
future persecution if returned to Guatemala due to his social group
membership and because of his political opinions regarding gangs.
We address these contentions in turn.
a. Particular social groups
The record reflects that the only social group membership
assessed by the IJ was "Guatemalans returning from the United
States" who, according to Perez's testimony, would be harmed by
gangs because they would be perceived to have money or valuable
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goods. In addition, the BIA interpreted Perez's petition as
alleging that he was a member of a group of "young indigenous
Guatemalan males who expressly oppose the practices and values of
the MS gang and wish to protect their families against such
practices."
On appeal, however, Perez pursues a slightly different
tack. To begin with, he does not address the "returning expatriate
from the United States" claim in his brief. That argument is
therefore waived. Le Bin Zhu v. Holder, 622 F.3d 87, 91 (1st Cir.
2010).1 Next, in addition to membership in the gang-opposition
group, he also claims on appeal membership in a particular social
group as the husband of a rural, indigenous woman whose family has
opposed gang members. As this claim was not presented to the IJ or
BIA, we do not have jurisdiction to review it. See 8 U.S.C. §
1252(d)(1); Ahmed v. Holder, 611 F.3d 90, 97 (1st Cir. 2010)
("[A]rguments not made before the BIA may not make their debut in
a petition for judicial review . . . .").
Turning to the claim properly before us, the BIA found
that Perez's gang opposition did not make him part of a social
1
Even if we were to consider this claim, the Board's
conclusion that gang members target anyone they believe can provide
them with money or valuables is well-supported by the record. As
such, its conclusion that Perez would not be targeted "on account
of" his membership in a group is unassailable. See Caal-Tiul v.
Holder, 582 F.3d 92, 95 (1st Cir. 2009) ("[S]ome social, gender,
and economic groupings are almost always more vulnerable to crime
and predation. This does not by itself amount to persecution . .
. on one of the specific grounds required by the statute.")
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group protected by immigration laws. The Board relied on its
decision in Matter of S-E-G, et al., 24 I. & N. Dec. 579 (BIA
2008), in which the Board held that Salvadoran youths who resisted
gang recruitment do not constitute a particular social group. We
find no error in applying controlling BIA case law to the
Guatemalan petitioner. See Larios v. Holder, 608 F.3d 105, 109
(1st Cir. 2010) (approving BIA application of Matter of S-E-G to
Guatemalan petitioner claiming membership in group of Guatemalan
gang resistors).2
b. Political opinion
Perez's withholding of removal claim premised on his
alleged political opinions fares no better. The BIA concluded,
based on its decision in Matter of E-A-G, 24 I. & N. Dec. 591 (BIA
2008), that Perez's refusal to join a gang, without more, did not
qualify as the expression of a political opinion. This conclusion
is supportable. In addition to the Board's own precedent, to which
we owe some deference, see Larios, 608 F.3d at 107, the Supreme
2
In July 2009, a few months after the BIA decision in this
matter, the BIA in Matter of S-E-G granted the parties' joint
motion to reopen and remand the matter so that the IJ could
administratively close the proceedings. The petitioners suggest
that this undermines the BIA's reliance on Matter of S-E-G, but
they have provided us with no indication that the BIA has
reconsidered the precedential value of Matter of S-E-G. Moreover,
in addition to our decision in Larios, several other circuits have
continued to apply Matter of S-E-G to factual scenarios similar to
those presented in this case. See, e.g., Lizama v. Holder, No. 09-
2027, 2011 WL 149874 at *6 (4th Cir. Jan. 19, 2011); Bonilla-
Morales v. Holder, 607 F.3d 1132, 1137 (6th Cir. 2010) (dicta);
Lushaj v. Holder, 380 Fed. Appx. 41, 43 (2nd Cir. 2010).
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Court's opinion in INS v. Elias-Zacarias, 502 U.S. 478 (1992), is
on point. In that case, the Court explained that a petitioner's
resistance to recruitment into a guerilla movement, without more,
did not qualify as the expression of a political opinion. Id. at
481-82. So it is here. Nothing in the record suggests that Perez
outwardly expressed any anti-gang message or that his resistance to
the gang was politically motivated. The petitioner's reliance on
his mere resistance thus falls short.
2. Boj
Boj also seeks withholding of removal due to persecution
on account of her membership in certain social groups and her
political views. We address the two categories seriatim.
a. Social groups
Boj claims that she suffered past persecution and will
likely suffer persecution upon her return to Guatemala due to her
membership in two particular social groups: 1) young Guatemalan
indigenous females whose family members have expressly opposed gang
practices and values; and 2) young indigenous Guatemalan women who
are not protected from gangs by Guatemalan authorities.3
As to the first putative group, the BIA used the same
reasoning that it did in rejecting Perez's claim: that resistance
to gang entreaties does not constitute a social group. For the
3
The BIA addressed a "returning expatriate" claim similar to
Perez's. As that issue has not been raised on appeal, it is
waived.
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same reasons set forth in our discussion of Perez's claim, we
decline to disturb the BIA's conclusion. The BIA approached the
second alleged group differently. Without necessarily deciding
whether the stated categories of females qualified as a particular
social group, the Board concluded that Boj had failed to show that
the claimed persecution was "on account" of that group's
characteristics. We agree.
To make out a successful withholding of removal claim,
Boj must satisfy a nexus requirement, that is, she needs to
establish that the persecution feared will be on account of a
protected ground. Sompotan v. Mukasey, 533 F.3d 63, 68 (1st Cir.
2008). The BIA determined that Boj had failed to establish that
the gang members harmed her because of her status as a Guatemalan
indigenous female. This conclusion is fully supported by the
record. The testimony of the petitioners indicates that the gang
members targeted Boj because her husband stopped making extortion
payments to them, not because she was an indigenous female.
Accordingly, the BIA's decision stands.
b. Political opinion
For her part, Boj claims that gang members imputed an
anti-gang political opinion to her when her husband refused to join
them and stopped paying them money. Although an imputed political
opinion may form the basis for a withholding claim, Vasquez v. INS,
177 F.3d 62, 65 (1st Cir. 1999), nothing in the record indicates
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that the gang members imputed an anti-gang political opinion to
Boj. And, as noted, nothing about Perez's resistance to the gang
would lead the gang's members to attribute a political opinion to
him or to his wife. The BIA's decision on this issue easily clears
the "substantial evidence" hurdle.4
As a coda to Boj's claim, our decision here is not in any
way an attempt to downplay the horrors that she endured. According
to the reports in the record, however, the Guatemalan government
has been acting to stem the tide of violence against women. Our
sympathies cannot substitute for the "specific grounds required by
the statute." Caal-Tiul, 582 F.2d at 95.
III. Conclusion
For the reasons provided above, the petitions are
dismissed in part and are otherwise denied.
4
Both petitioners advance an unexhausted challenge to the
BIA's requirement that a particular social group be socially
visible. We cannot entertain such an unexhausted challenge, see
Sunoto v. Gonzales, 504 F.3d 56, 59 (1st Cir. 2007).
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