Pojoy-Deleon v. Barr ( 2020 )

United States Court of Appeals
For the First Circuit
No. 19-1006
ARMINDA SEDEMA POJOY-DE LEÓN;
BILDER AVDIEL DE LEÓN-POJOY,
Petitioners,
v.
WILLIAM P. BARR,
United States Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch and Lipez,*
Circuit Judges.
Kevin MacMurray, Daniel T. Welch, and MacMurray & Associates,
on brief for petitioners.
Sabatino F. Leo, Senior Litigation Counsel, U.S. Department
of Justice, Office of Immigration Litigation, Civil Division,
Joseph H. Hunt, Assistant Attorney General, Civil Division, and
Anthony P. Nicastro, Assistant Director, Office of Immigration
Litigation, on brief for respondent.
December 21, 2020
* While this case was submitted to a panel that included Judge
Torruella, he did not participate in the issuance of the panel's
opinion. The remaining two panelists therefore issued the opinion
pursuant to 28 U.S.C. § 46(d).
LIPEZ, Circuit Judge. Petitioner Arminda Sedema Pojoy-
De León ("Pojoy"),1 a native and citizen of Guatemala, challenges
an order of the Board of Immigration Appeals ("BIA") denying her
applications for asylum, withholding of removal, and protection
under the United Nations Convention Against Torture ("CAT").
After a careful review of the record, we deny the petition.
I.
We draw the facts from the evidence in the administrative
record, including Pojoy's asylum application and her testimony
before the Immigration Judge ("IJ").
A. Background
Pojoy and her minor son resided in Guatemala until June
13, 2014, when they entered the United States without inspection.
They were apprehended two days later and placed in removal
proceedings. On September 3, 2014, Pojoy filed an application for
asylum and withholding of removal on behalf of herself and her
son, claiming both past persecution and fear of future persecution
based on her "[p]olitical opinion" and her "[m]embership in a
particular social group." Pojoy also claimed a likelihood that,
if returned to Guatemala, she would be subjected to torture because
1
Pojoy is the lead petitioner. She is referred to as Arminda
Sedema Pojoy-Lopez in the administrative record and in the parties'
briefs to this Court. Bilder Avdiel De León-Pojoy, her minor son,
maintains a derivative claim.
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"[i]t is dangerous and the government is corrupt," and Pojoy was
"not confident the police or the judicial system in Guatemala [was]
willing or able to protect [her] from the violence that is so
prevalent in that country." Pojoy's affidavit in support of her
application also stated that she feared for her life because of
"violence between different villages and gangs" in Guatemala.
In her memorandum of law to the IJ in support of her
asylum claim, Pojoy asserted persecution based on membership in a
social group consisting of "Guatemalan women," who, she claimed,
"are subject to violence and discrimination, but are unable to
receive official protection." She argued, relying on a U.S.
Department of State Report on Country Conditions in Guatemala,
that Guatemalan society perceives women as inferior to men and
tolerates their mistreatment. In an amended affidavit supporting
her asylum claim, Pojoy added details about her father. Pojoy
averred that when her mother was pregnant with her, her father
threatened to kill her mother if she carried the pregnancy to term.
According to Pojoy, her father eventually left for the United
States but was later deported after being "accused of rape." After
her father returned to Guatemala, when Pojoy was nineteen years
old, she started "to see him around town, but [she] never talked
to him." Pojoy also stated that her female cousin had been raped
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and killed by a group of gang members, and "[o]ne of the killers
[was] walking around free."
On November 16, 2017, Pojoy testified before an IJ that
she left Guatemala because she was afraid of what her father could
do to her. She repeated the assertion contained in her amended
affidavit that her father had tried to kill her mother when her
mother was pregnant with her, and she expanded on her encounters
with her father. Pojoy testified that she first met him in 2000,
at age thirteen, when he showed up one day in front of Pojoy's
school and introduced himself as her father. After he then moved
to the United States, she did not see him again until after his
deportation back to Guatemala in 2006 or 2007, when Pojoy was
nineteen or twenty years old. Pojoy stated that during that second
encounter her father told her that she "look[ed] very much like
[her] mother" and "grabbed [her] by the nose," which "really
hurt."2 Pojoy testified that she had a third and last in-person
interaction with her father in 2009, when he came to her home,
grabbed her by the nose again, and "repeated that [she] look[ed]
very much like [her] mother," which made her feel afraid.
Pojoy said that her father started calling her in 2012,
after his girlfriend passed away, and during those phone
2
Pojoy's mother died of cancer in 2003, when Pojoy was
sixteen years old.
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conversations he asked Pojoy for money and requested that she move
in with him because she "was his daughter."3 She also testified
that during one of those phone conversations her father threatened
to kidnap her and her son if she did not agree to move in with
him. When she told her aunt in 2013 about her father's calls, her
aunt warned her to be careful around him and told her about his
attempts against her mother's life. Pojoy then stopped responding
to her father's phone calls. She also testified that she was
afraid of him because he "always carried a pistol in his waist"
and drank "a lot."
Pojoy explained that she did not contact the police
because "the police do[n't] do anything ever in [Guatemala]" and
they do "not believe anything that women say."4 In 2014, after
her father told her that he was planning to move to the town where
she lived, she decided to leave for the United States. When her
attorney asked her what she thought would happen if she returned
to Guatemala, Pojoy responded that her father would look for her
3
Pojoy testified that when her father asked her to move in
with him, she responded, "later." According to Pojoy, she did not
dare tell him "no" because she was afraid of how he would react.
4
Pojoy testified that her cousin had reported to the
Guatemalan police that she was being threatened by "some guys,"
but the police dismissed her complaint, telling her that the men
were "just playing." Her cousin was later raped and murdered and
two of the men involved in her cousin's murder were out of prison.
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and make her move in with him. She also stated she was afraid to
go back to Guatemala because of its high rate of delinquency and
violence.
During cross-examination, Pojoy admitted that she had
not mentioned in her original asylum application her father's
treatment of her despite her claim at the hearing that she was
seeking asylum and withholding of removal because of her fear of
him. She also acknowledged that she last had in-person contact
with her father in 2009. Hence, when she left for the United
States in 2014, she had not seen him in five years. Finally,
Pojoy noted that she had been in counseling "for some time" and
had been diagnosed with Posttraumatic Stress Disorder ("PTSD")
stemming from the "traumatic experiences" she had during her
"childhood and adolescence," including her cousin's death, and
"violence [she had] witnessed in Guatemala."5
B. Decisions of the IJ and BIA
The IJ denied Pojoy's request for relief and protection
from removal. First, the IJ found that Pojoy's testimony was not
credible because she had testified about events and details that
5
Beyond her testimony, Pojoy provided several supporting
documents to the IJ, including her original affidavit accompanying
her asylum application, her amended affidavit, a country
conditions report from the Department of State, and letters from
family members and her therapist.
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she had failed to mention in her asylum application or the
supporting affidavits she had submitted prior to the hearing.6
However, for purposes of the analysis, the IJ assumed that Pojoy
had testified credibly. With regard to asylum, the IJ determined
that Pojoy had not established that she was persecuted or had a
"well-founded fear" of future persecution because her father's
actions toward her did not "rise above unpleasantness, harassment,
and even basic suffering." Additionally, the IJ held that, even
assuming Pojoy's proposed group of Guatemalan women was a
cognizable social group for purposes of the asylum analysis, Pojoy
had not established "that a central reason for her being targeted
by her father [was] because she is a Guatemalan woman." Rather,
the IJ found that Pojoy's father targeted her because she was "his
daughter." Thus, she failed to meet the required nexus between
the alleged persecution and a protected ground.
For the same reasons, the IJ held that Pojoy had not
established eligibility for withholding of removal, noting that
because she could not establish eligibility for asylum under the
"well-founded fear standard," it "follow[ed] that she also
fail[ed] to demonstrate eligibility for withholding of removal
under the more stringent 'more likely than not' standard."
6
The IJ, however, did find credible the evidence concerning
the rape and murder of Pojoy's cousin.
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Finally, while the IJ found that there was a "prevalence of
violence against women and unlawful violence committed by police"
in Guatemala, the IJ concluded that Pojoy had failed to show a
likelihood that Guatemalan authorities would acquiesce to, or
engage in, torture against her.
Pojoy appealed to the BIA. Instead of addressing the
IJ's adverse credibility finding, the BIA upheld the IJ's
determination that, even if Pojoy had testified credibly, she had
not established eligibility for asylum, and by extension,
withholding of removal. As the BIA put it, "even if Pojoy's
proposed group were found to be a cognizable particular social
group, [Pojoy] ha[d] not met her burden to show that membership in
that group was or will be one central reason for the past or feared
future harm."
With regard to protection under the CAT, the BIA
similarly concluded that Pojoy had failed to establish eligibility
because she did not show that it is "more likely than not" that
she would be tortured upon her return to Guatemala at the hands,
or with the acquiescence, of the government. Even Pojoy's
testimony about her cousin's rape and murder did not demonstrate
that possibility.
The BIA dismissed her appeal. This petition for review
ensued.
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II.
A. Standard of Review
We review the BIA's decision as well as any portions of
the IJ's opinion adopted by the BIA. Bonilla v. Mukasey, 539 F.3d
72, 76 (1st Cir. 2008). We examine the BIA's legal conclusions
de novo and the underlying factual findings using the deferential
substantial evidence standard, Soeung v. Holder, 677 F.3d 484, 487
(1st Cir. 2012), thereby accepting findings of fact "as long as
they are 'supported by reasonable, substantial, and probative
evidence on the record considered as a whole,'" Diaz Ortiz v. Barr,
959 F.3d 10, 16 (1st Cir. 2020) (quoting Jianli Chen v. Holder,
703 F.3d 17, 21 (1st Cir. 2012)); see also Singh v. Mukasey, 543
F.3d 1, 4 (1st Cir. 2008) (noting that the BIA's "factual findings
underlying the denial of asylum" must be upheld "'unless any
reasonable adjudicator would be compelled to conclude to the
contrary'" (quoting Silva v. Gonzales, 463 F.3d 68, 72 (1st Cir.
2006) (quoting 8 U.S.C. § 1252(b)(4)(B)))).
B. Asylum
To be eligible for asylum, the applicant must show that
she is unwilling or unable to return to her country because of
"persecution or a well-founded fear of persecution on account of
race, religion, nationality, membership in a particular social
group, or political opinion." Diaz Ortiz, 959 F.3d at 16 (quoting
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8 U.S.C. § 1101(a)(42)(A)). The applicant may make this showing
by establishing that she suffered past persecution, "which creates
a rebuttable presumption of a well-founded fear of future
persecution." Paiz-Morales v. Lynch, 795 F.3d 238, 243 (1st Cir.
2015) (quoting Singh v. Holder, 750 F.3d 84, 86 (1st Cir. 2014)).
Establishing past persecution ordinarily requires an applicant to
show that she experienced "more than mere discomfiture,
unpleasantness, harassment, or unfair treatment." Nikijuluw v.
Gonzales, 427 F.3d 115, 120 (1st Cir. 2005). Absent evidence of
past persecution, "the 'well-founded fear' requirement may be
satisfied with evidence of a 'reasonable likelihood' of future
persecution, so long as the fear is 'genuine and objectively
reasonable.'" Li Sheng Wu v. Holder, 737 F.3d 829, 832 (1st Cir.
2013) (citation omitted) (first quoting Smith v. Holder, 627 F.3d
427, 437 (1st Cir. 2010); and then quoting Aguilar-Solís v. INS,
168 F.3d 565, 572 (1st Cir. 1999)). To meet the "objectively
reasonable" requirement, the applicant must produce "credible,
direct, and specific evidence supporting a fear of individualized
persecution in the future." Id. (quoting Decky v. Holder, 587
F.3d 104, 112 (1st Cir. 2009)).
Additionally, the applicant bears the burden of
demonstrating that the claimed persecution was or will be "on
account of" a statutorily protected ground, 8 U.S.C. § 1101-10-
(a)(42)(A) -- the "nexus" requirement. See Alvizures-Gomes v.
Lynch, 830 F.3d 49, 53 (1st Cir. 2016). That requirement is met
if the applicant can prove that a "statutorily protected ground
'was or will be at least one central reason for persecuting the
[alien].'" Id. (alteration in original) (quoting 8 U.S.C.
§ 1158(b)(1)(B)(i)). Importantly, "[w]hether the harm suffered
by an asylum applicant was inflicted 'on account of' a protected
ground is 'generally [a] question[] of fact.'" Singh, 543 F.3d
at 4 (second and third alterations in original) (quoting Sompotan
v. Mukasey, 533 F.3d 63, 68 (1st Cir. 2008)).
While Pojoy devotes a substantial part of her brief to
contesting the IJ's credibility findings and arguing that her
proposed group of Guatemalan women is a particular social group,
those arguments are not relevant to our review. Despite finding
Pojoy's testimony not credible, the IJ assumed, favorably to Pojoy,
that her testimony was credible. Likewise, the IJ assumed
favorably to Pojoy that her proposed group was a cognizable social
group for purposes of the asylum analysis. Having made these
assumptions, the IJ nevertheless found that Pojoy failed to
establish a nexus between that social group and her father's
alleged persecution or her fear of future persecution.
The BIA, in turn, did not pass judgment on the
correctness of the IJ's credibility determination or whether
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Pojoy's proposed social group was cognizable under the statute.
Rather, it simply approved of the IJ's alternative determination
that, even assuming these two issues were resolved favorably to
Pojoy, her claims still failed because she did not establish the
required nexus between her persecution and the statutory ground
she asserted, namely, her status as a Guatemalan woman. We
therefore limit our analysis to determining whether the record
compels a finding on the nexus issue contrary to the BIA's. See
id.; Gailius v. INS, 147 F.3d 34, 44 (1st Cir. 1998) (noting that
our review is limited solely to the grounds invoked by the agency).
To satisfy the nexus requirement, Pojoy had to show that
her membership in the group of Guatemalan women "was or will be at
least one central reason for [her] persecuti[on]."7 Alvizures-
Gomes, 830 F.3d at 53 (quoting 8 U.S.C. § 1158(b)(1)(B)(i)). She
had to "provide sufficient evidence to forge an actual connection
between the harm and [her membership in the group]." Giraldo-
Pabon v. Lynch, 840 F.3d 21, 25 (1st Cir. 2016) (quoting Lopez de
Hincapie v. Gonzales, 494 F.3d 213, 218 (1st Cir. 2007)). The
7 Notably, Pojoy does not allege, much less prove, that her
membership in the alleged particular social group of Guatemalan
women "was or will be at least one central reason for [her]
persecuti[on]." Alvizures-Gomes, 830 F.3d at 53 (emphasis added)
(quoting 8 U.S.C. § 1158(b)(1)(B)(i)). Instead, she alleges only
that she experienced persecution "at least in part because she was
a woman." Brief for Petitioners at 21 (emphasis added).
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evidence provided by Pojoy about her encounters with her father,
in person and by phone, however, relates to her specifically and
the nature of her relationship with him. Pojoy testified that her
father asked her for money and to move in with him because she was
his daughter and, according to Pojoy, he persistently told her
that she resembled and reminded him of her mother. Moreover,
Pojoy admitted that she had not seen her father in the five years
before she left for the United States, and there is no evidence
that the calls continued after her departure.
In short, the evidence on the record does not show that
"the scope of [any] persecution extends beyond a 'personal
vendetta.'" Costa v. Holder, 733 F.3d 13, 17 (1st Cir. 2013)
(upholding the BIA's dismissal of a noncitizen's appeal because
substantial evidence showed that "the risk that [the noncitizen]
face[d] [was] personal, and not due to her membership in a social
group").
To the extent Pojoy presses her cousin's rape and murder
and the machismo culture she claims is prevalent in Guatemala as
evidence of future persecution, such speculation is insufficient
"to forge the statutorily required 'link.'" Guerra-Marchorro v.
Holder, 760 F.3d 126, 129 (1st Cir. 2014). The evidence in the
record does not compel a finding, contrary to the finding of the
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BIA, that Pojoy was or will be persecuted because she is a
Guatemalan woman.
C. Withholding of Removal and Protection under the CAT
Pojoy also seeks withholding of removal and protection
under the CAT, both of which "place a higher burden of proof on
the petitioner than a counterpart claim for asylum." Singh, 543
F.3d at 7. An applicant seeking withholding of removal has the
burden of demonstrating that it is more likely than not that she
would face persecution on account of a protected ground if returned
to her country. Paiz-Morales, 795 F.3d at 245. In turn, relief
under the CAT requires the applicant to show that "it is more
likely than not that [s]he will be tortured if returned to h[er]
homeland." Jiang v. Gonzales, 474 F.3d 25, 32 (1st Cir. 2007).
Because Pojoy fails to establish her eligibility for asylum, her
claims for withholding of removal and protection under the CAT
necessarily fail to meet these more stringent standards.
See Singh, 543 F.3d at 7; Santosa v. Mukasey, 528 F.3d 88, 92 n.1
(1st Cir. 2008) ("The standard for withholding of removal is more
stringent than that for asylum. The CAT standard, in turn, is
more stringent than that for withholding of removal." (citation
omitted)); Guillaume v. Gonzales, 504 F.3d 68, 71 n.2 (1st Cir.
2007) (explaining that if an applicant cannot satisfy the standard
for asylum eligibility, he will also be unable to satisfy the
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higher standards for withholding of removal or protection under
the CAT).
III.
For the foregoing reasons, the petition for review is
denied.
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