Tzunux v. Holder ( 2011 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 10-1471
FRANCISCO TZUNUX,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lipez, Selya and Howard,
Circuit Judges.
Randy Olen on brief for petitioner.
Tony West, Assistant Attorney General, Civil Division, Blair
T. O'Connor, Assistant Director, Civil Division, and Briena L.
Strippoli, Trial Attorney, Office of Immigration Litigation, on
brief for respondent.
November 10, 2011
Per Curiam. This is a petition for judicial review in
which the petitioner, a Guatemalan national, challenges a final
order of the Board of Immigration Appeals (the Board) denying his
application for withholding of removal and mandating his removal to
his homeland. The Board's underlying decision is fact-based, and
we review it under the familiar "substantial evidence" standard.
Mariko v. Holder, 632 F.3d 1, 5 (1st Cir. 2011). This standard is
"highly deferential," and we "must uphold the [Board's]
determination as long as that determination is 'supported by
reasonable, substantial, and probative evidence on the record
considered as a whole.'" Lopez de Hincapie v. Gonzales, 494 F.3d
213, 218 (1st Cir. 2007) (quoting INS v. Elias-Zacarias, 502 U.S.
478, 481 (1992)). To allow us to set aside the Board's decision,
"the record must compel the contrary conclusion." Id. (emphasis in
original); accord Elias-Zacarias, 502 U.S. at 481 n.1.
The record in this case does not compel a conclusion
opposite to that reached by the Board but, rather, fully supports
a finding that the petitioner failed to carry his burden of proving
that, more likely than not, he would if repatriated be persecuted
by gangs on account of his status as an indigenous Quiche Indian.
Among other things, the petitioner was not harmed by the gangs at
any time before he left Guatemala; none of the documentary evidence
in the record mentions, much less shows, that Quiche Indians in
Guatemala are targeted by gangs; the petitioner's family members
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continue to live peacefully in Guatemala; and the gangs themselves
recruit and include Quiche Indians as members. These facts, singly
and in the ensemble, support the Board's decision.
The petitioner's brief does not directly address this
formidable obstacle. Instead, it raises new arguments not fairly
raised by the record and, in any event, not raised before the
Board. These arguments are unexhausted and, therefore, this court
lacks jurisdiction to consider them. See 8 U.S.C. § 1252(d)(1);
Ahmed v. Holder, 611 F.3d 90, 97 (1st Cir. 2010).
We need go no further. For the reasons elucidated above,
the petition for judicial review must be denied.
So Ordered.
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