Loja-Tene v. Barr ( 2020 )

United States Court of Appeals
For the First Circuit
No. 19-2192
JOSÉ FRANCISCO LOJA-TENE,
Petitioner,
v.
WILLIAM P. BARR,
UNITED STATES ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Selya, and Barron,
Circuit Judges.
Daniel T. Welch and MacMurray & Associates on brief for
petitioner.
Joseph H. Hunt, Assistant Attorney General, Civil Division,
United States Department of Justice, Melissa Neiman-Kelting,
Assistant Director, Office of Immigration Litigation, and Jacob
Bashyrov, Attorney, Office of Immigration Litigation, on brief for
respondent.
September 21, 2020
SELYA, Circuit Judge. Judicial review of factbound
agency determinations is narrowly circumscribed: in immigration
cases — as in other administrative-law contexts — a reviewing court
must uphold the agency's factbound determinations as long as those
determinations are supported by substantial evidence in the
record, viewed as a whole. See Pulisir v. Mukasey, 524 F.3d 302,
307 (1st Cir. 2008). A straightforward application of this
standard in the case at hand leads us to uphold the decision of
the Board of Immigration Appeals (BIA) and, therefore, deny the
petition for judicial review.
The petitioner, José Francisco Loja-Tene, is an
Ecuadorian national. He came to the United States without
documentation in 2014, having left Ecuador for fear of harm at the
hands of his adopted older brother (Angel). The petitioner's
remaining family — including his wife, mother, children, and three
sisters — remain in Ecuador.
According to the petitioner, his brother has been
involved in narcotics trafficking since the mid-1990s. From that
time forward, Angel periodically made unwelcome visits to the Loja-
Tene family, during which he attempted to strong-arm the petitioner
and his father into trafficking cocaine at Angel's behest. Both
men refused to cooperate, and Angel's ire mounted. It escalated
in 2011, when Angel reportedly murdered the petitioner's father.
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After the father's murder, Angel continued to pressure
the petitioner to traffick cocaine. These pressure tactics
included a threat delivered at gunpoint. Frightened by his
brother's threats, the petitioner left Ecuador to seek passage to
the United States. As an added precaution, his wife and children
relocated to Peru, and then moved again to a remote Ecuadorian
village (where they remain in hiding).
Upon arriving in the United States, the petitioner
applied for asylum, withholding of removal, and protection under
the United Nations Convention Against Torture (CAT), alleging that
he feared his brother will torture or kill him should he return to
Ecuador. His argument for asylum and withholding of removal
centered on his allegation that he faces persecution based on his
membership in a particular social group (his family unit). The
petitioner's family is a cognizable social group, he says, because
his alleged persecutor (Angel) only sought to recruit immediate
relatives.
At a hearing before an immigration judge (IJ), the
petitioner conceded removability and relied instead on his cross-
applications for asylum, withholding of removal, and CAT
protection. The petitioner testified in his own behalf. The IJ
found him credible but determined that he had failed to
substantiate any of his three claims. Of particular relevance
here, the IJ found insufficient evidence that family membership
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had sparked Angel's threats against the petitioner. On appeal,
the BIA affirmed, and the petitioner responded by filing this
timely petition for judicial review.
We start by narrowing the scope of our inquiry. Although
the petitioner professes to challenge the BIA's rejection of his
CAT claim, his challenge is cursory and largely undeveloped.
Consequently, we deem the claim waived. See Ahmed v. Holder, 611
F.3d 90, 98 (1st Cir. 2010) (holding, in similar context, that
"appellate arguments advanced in a perfunctory manner,
unaccompanied by citations to relevant authority, are deemed
waived").
This leaves the petitioner's asylum and withholding of
removal claims. Our standards of review are familiar. In the
immigration context, judicial review typically focuses on the
final decision of the BIA. See Murillo-Robles v. Lynch, 839 F.3d
88, 91 (1st Cir. 2016). But when the BIA embraces the decision of
the IJ, "merely add[ing] its gloss to the IJ's findings and
conclusions, we treat the two decisions as one." Id. So it is
here.1
We review the agency's legal conclusions in a removal
proceeding de novo, "with some deference to the agency's reasonable
interpretation of statutes and regulations that fall within its
1 For ease in exposition, we sometimes use the term "the
agency" to refer to the BIA and the IJ, collectively.
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purview." Pulisir, 524 F.3d at 307. We treat the agency's factual
findings more deferentially, applying the substantial evidence
rule: we will uphold the agency's findings unless the record
compels a contrary conclusion. See Lopez de Hincapie v. Gonzales,
494 F.3d 213, 218 (1st Cir. 2007).
With this backdrop in place, we turn first to the
petitioner's claim for asylum. His initial foray is his claim
that the agency misapplied a legal standard by failing to allow
for the possibility of mixed-motive persecution.
We pause to put this claim into perspective. A refugee,
like the petitioner, who seeks asylum resulting from either actual
or feared persecution in his homeland bears the burden of showing
that the persecution is on account of one of five statutorily
protected grounds: "race, religion, nationality, membership in a
particular social group, or political opinion." 8 U.S.C.
§ 1101(a)(42)(A). Even so, the statutorily protected ground need
not be the sole factor driving the alleged persecution: although
an asylum applicant must establish that a statutorily protected
ground is "'at least one central reason' for the [applicant's]
persecution," it need not be the exclusive reason. Aldana-Ramos
v. Holder, 757 F.3d 9, 18 (1st Cir. 2014) (quoting 8 U.S.C.
§ 1158(b)(1)(B)(i)). The language of the Immigration and
Nationality Act "clearly contemplates the possibility that
multiple motivations can exist, and that the presence of a non-
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protected motivation does not render an applicant ineligible for
refugee status." Id. at 18-19.
In all events, the applicant retains the burden of
demonstrating that he is being persecuted based on at least one
statutorily protected ground. See Lopez de Hincapie, 494 F.3d at
219 ("[I]t is the alien's burden to give the adjudicator some basis
for differentiation in a given case." (citing Romilus v. Ashcroft,
385 F.3d 1, 7 (1st Cir. 2004))). Here — contrary to the
petitioner's characterization — the agency did not improperly
preclude the possibility of mixed-motive persecution. To the
contrary, the IJ made pellucid that the petitioner had to
demonstrate that kinship ties are "at least one central reason"
for his persecution. So, too, the BIA held that the petitioner
did not establish a statutorily protected ground as "one of the
motivating factors for why he and his father were [harmed] by his
older brother." (emphasis supplied).2
2To be sure, the BIA opinion contains a single sentence that
may be read to misconstrue the legal standard. It states at one
point that "[w]e agree with the Immigration Judge that the evidence
does not establish that [family membership was] the one central
motive for the harm inflicted on the respondent." Yet the body of
the BIA's opinion (like the IJ's) makes clear that it understood
that actions may be driven by more than one central motive. Viewed
in this context, this is the type of isolated lapsus linguae to
which we regularly have declined to give dispositive weight. See
Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1088 (1st Cir. 1993)
("If using the wrong word or phrase constituted grounds for
reversal in every case, much too high a premium would be placed on
sheer literalism.") cert. denied, 139 S. Ct. 1388 (2019); cf.
United States v. Montañez-Quiñones, 911 F.3d 59, 66 (1st Cir. 2018)
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Seen in this light, the agency's determination in this
case is akin to the one we considered in Villalta-Martinez v.
Sessions, 882 F.3d 20 (1st Cir. 2018). There, we concluded that
the agency "explicitly acknowledged the possibility of a mixed-
motive [persecution], but, based on the evidence presented, made
a fact-specific determination that [the petitioner] had not shown
that the persecution was motivated by a family relationship." Id.
at 24. The same can be said here.
We also find unpersuasive the petitioner's argument that
the agency erred in the substance of its factual findings. As we
have indicated, our review of these findings must proceed under
the "highly deferential" substantial evidence rule. Lopez de
Hincapie, 494 F.3d at 218. This rule directs us not to disturb
the agency's factbound determinations as long as those
determinations are "supported by reasonable, substantial, and
probative evidence on the record considered as a whole." INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992) (quoting 8 U.S.C.
§ 1105a(a)(4)).
The petitioner attempts to clear this high bar by
submitting that "there is no other plausible explanation" for his
(declining to give dispositive weight to prosecutor's misstatement
when it did not "appear that the misstatement in any way affected
the outcome of the proceedings"). Put simply, the totality of the
agency's analysis plainly outweighs the lone misstatement and,
therefore, the error was harmless.
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persecution, except for family ties. This argument, though, reads
the record through rose-colored glasses. Fairly read, the record
contains probative evidence that, when due allowance is made for
the agency's right to draw reasonable inferences from discerned
facts, passes muster under the substantial evidence standard.
Indeed, we have observed before — and today reaffirm — that "[t]he
mere fact that [a persecutor] exclusively targeted [family]
members" does not compel the logical inference that kinship
motivated the threats. Marin-Portillo v. Lynch, 834 F.3d 99, 102
(1st Cir. 2016). Put another way, "the fact that the group is a
family unit does not convert the non-protected criminal motivation
into persecution on the basis of family connections." Aldana-
Ramos, 757 F.3d at 19.
Here, there is more than enough evidence in the record
to underpin the agency's conclusion that family ties did not
motivate the petitioner's persecution, even though those ties may
have brought him into proximity with his persecutor. Angel made
menacing statements to both the petitioner and his father only
after they refused to leverage their day-to-day access to potential
drug clientele to Angel's behoof. Meanwhile, the petitioner's
sisters, all three of whom work as homemakers, remain in Ecuador
without having been subjected to similar threats. A reasonable
adjudicator could interpret these facts — as the IJ did — to
support the proposition that Angel persecuted the petitioner out
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of greed, criminal intent, and vindictiveness, rather than on
account of his family membership.
Finally, we come to the petitioner's claim that the
agency improvidently denied his application for withholding of
removal. Withholding of removal claims require a more rigorous
level of proof than counterpart claims for asylum. See Aguilar-
Solis v. INS, 168 F.3d 565, 569 n.3 (1st Cir. 1999) ("[A]sylum
eligibility only requires a well-founded fear of persecution . . .
while withholding of deportation requires a clear probability of
persecution."). Given our reasons for concluding that the
petitioner has failed to clear the lower hurdle erected for asylum
seekers, his counterpart claim for withholding of removal "must
necessarily fail." Villa-Londono v. Holder, 600 F.3d 21, 24 n.1
(1st Cir. 2010).
We need go no further.3 For the reasons elucidated
above, the petition for judicial review is
Denied.
3 We note, in particular, that this case, in its present
posture, does not present a fitting occasion to address the
arguments raised with respect to the Attorney General's decision
in Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019). Those arguments
go only to the conditions under which a family unit can be found
to constitute a cognizable social group — an issue that we need
not reach.
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