Arevalo-Giron v. Holder, Jr. ( 2012 )

United States District Court
For the First Circuit
No. 10-2357
MARLENE LISBETH ARÉVALO-GIRÓN,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Torruella and Selya,
Circuit Judges.
Stephen M. Born and Mills & Born on brief for petitioner.
Tony West, Assistant Attorney General, Civil Division, United
States Department of Justice, William C. Peachey, Assistant
Director, Office of Immigration Litigation, and Ada E. Bosque,
Senior Litigation Counsel, Office of Immigration Litigation, on
brief for respondent.
January 31, 2012
SELYA, Circuit Judge. The petitioner, Marlene Lisbeth
Arévalo-Girón, is a Guatemalan national. She seeks judicial review
of a final order of the Board of Immigration Appeals (BIA) denying
her application for withholding of removal. After careful
consideration, we deny the petition.
The petitioner entered the United States on November 1,
1997, without inspection. Some ten years later, the Department of
Homeland Security discovered her presence and initiated removal
proceedings against her. See 8 U.S.C. § 1182(a)(6)(A)(i); id.
§ 1229a(a)(2).
Before the immigration judge (IJ), the petitioner
conceded removability but cross-applied for asylum, withholding of
removal, and protection under the United States Convention Against
Torture (CAT). In support, she asserted that if returned to
Guatemala, she would face persecution on account of her status as
either a single woman with perceived wealth or a former "child of
war." The IJ determined that her claim for asylum was time-barred;
denied withholding of removal on the ground that she had failed to
demonstrate a likelihood of persecution in Guatemala on account of
a statutorily protected status; and dismissed her entreaty for CAT
relief because she had not shown any governmental involvement in
the feared harm.
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The BIA affirmed the IJ's decision. This timely petition
for judicial review followed. In it, the petitioner challenges
only the denial of withholding of removal.1
Because the BIA added its own gloss to the IJ's
reasoning, we review the two decisions as a unit. See Lopez Perez
v. Holder, 587 F.3d 456, 460 (1st Cir. 2009). In conducting that
review, we test the agency's factual findings, including
credibility determinations, under the familiar substantial evidence
rule. Morgan v. Holder, 634 F.3d 53, 56-57 (1st Cir. 2011). This
rule requires us to accept all factual findings that are "supported
by reasonable, substantial, and probative evidence on the record
considered as a whole." Nikijuluw v. Gonzales, 427 F.3d 115, 120
(1st Cir. 2005) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992)) (internal quotation marks omitted). In other words, we
must uphold such a finding unless the record compels a contrary
conclusion. See 8 U.S.C. § 1252(b)(4)(B); Sompotan v. Mukasey, 533
F.3d 63, 68 (1st Cir. 2008). By contrast, we review legal
conclusions de novo, ceding some deference, however, to the
agency's interpretation of statutes and regulations that fall
within its purview. See Mendez-Barrera v. Holder, 602 F.3d 21, 24
(1st Cir. 2010).
1
Because neither the petitioner's asylum claim nor her CAT
claim is before us, we do not address them further.
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To prove an entitlement to withholding of removal, an
alien bears the burden of demonstrating a clear probability that
her life or freedom would be threatened in her homeland on account
of her race, religion, nationality, membership in a particular
social group, or political opinion. See 8 U.S.C. § 1231(b)(3)(A);
8 C.F.R. § 208.16(b); see also Morgan, 634 F.3d at 60. This burden
can be carried in two ways: the alien can show either that she has
suffered past persecution (giving rise to a rebuttable presumption
of future persecution) or that, upon repatriation, a likelihood of
future persecution independently exists. See López-Castro v.
Holder, 577 F.3d 49, 52 (1st Cir. 2009); 8 C.F.R. § 208.16(b)(1)-
(2). Regardless of which path the alien travels, she must
establish a connection between the feared harm and one of the five
statutorily protected grounds. See Lopez Perez, 587 F.3d at 462;
López-Castro, 577 F.3d at 54.
In the case at hand, the petitioner claims that if she
returns to Guatemala, she will be persecuted due to her membership
in either of two social groups: single women perceived to have
substantial economic resources2 or former children of war. We
doubt whether either group is legally cognizable. See Mendez-
Barrera, 602 F.3d at 25 (limning requirements for cognizable social
2
This is the description that the petitioner used before the
IJ and the BIA. In this court, she for the most part uses the noun
"women" without any adjective. But she cannot change the
description of her purported social group midstream. See Silva v.
Ashcroft, 394 F.3d 1, 5 n.6 (1st Cir. 2005).
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group); see also Scatambuli v. Holder, 558 F.3d 53, 59 (1st Cir.
2009) (suggesting that "affluent Guatemalans" do not compose a
cognizable group). But we need not make so broad a holding to
resolve the petitioner's claim. Rather, we uphold the agency's
finding that any potential hardship faced by the petitioner in
Guatemala would be unrelated to her membership in either of these
purported social groups.
Refined to bare essence, the petitioner makes two
arguments. First, she attempts to create a presumption of future
persecution by describing incidents and facts that she
characterizes as past persecution: the murder of her father by an
unknown assailant; the drafting of her brothers into the civil
patrol; and her lack of education. The agency determined that
these hardships were the result of Guatemala's horrific civil war,
not the petitioner's membership in the putative social group
comprising former children of the war. This determination is
supported by substantial evidence or, more precisely, by the
absence of anything in the record linking the described incidents
and facts to any particular status. For aught that appears, the
petitioner was simply in the wrong place at the wrong time.
We note, moreover, that the petitioner herself testified
that her father was not a member of either the army, the guerillas,
or the civil patrol. This testimony supports the agency's
determination that he was a random casualty of the civil war. By
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the same token, the petitioner's lack of education and her
brothers' compelled participation in the civil patrol — to the
extent that these facts might conceivably constitute persecution at
all, cf. Aguilar-Solis v. INS, 168 F.3d 565, 572 (1st Cir. 1999)
("Danger resulting from participation in general civil strife,
without more, does not constitute persecution.") — were never tied
to the petitioner's purported status as a former "child of war."
These deficits are fatal to her claim of past persecution. See
Lopez Perez, 587 F.3d at 462-63 (rejecting claim for withholding of
removal where record lacked evidence that past persecution resulted
from protected status).
The petitioner's remaining claim is no more robust. She
asserts that, if removed, she will be targeted by violent gangs in
Guatemala because she is a single woman perceived to have
substantial economic resources. To bolster this claim, she
testified that her family members were the victims of gang-related
robberies, and she provided documentation regarding the prevalence
of violence against women in Guatemala. The agency concluded,
however, that the violence in Guatemala is indiscriminate and that
the gangs do not target any particular social group. This
conclusion is fully supported by the record.
We need not tarry. There is no evidence in the record
that the gangs specifically target women. The petitioner herself
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never testified to that effect; to the contrary, she stated that
the gangs were only interested in increasing their wealth.
Nor does the State Department country conditions report
cited by the petitioner materially alter the decisional calculus.
This report describes how violence against women is, regrettably,
an ongoing problem in Guatemala. Nevertheless, the report does not
focus on economic considerations but, rather, suggests that the
violence in Guatemala, though widespread, is not aimed at any
particular segment of society. See Palma-Mazariegos v. Gonzales,
428 F.3d 30, 37 (1st Cir. 2005) (rejecting withholding of removal
claim where State Department report "attests that the threat of
violence afflicts all Guatemalans to a roughly equal extent,
regardless of their membership in a particular group or class").
At any rate, the situation described in the report is not so
pervasive as to compel the conclusion that the petitioner is likely
to suffer harm upon her return to her homeland.
Let us be perfectly clear. There is simply no evidence
that women with substantial economic resources, whether single or
married, are more attractive targets for Guatemalan gangs than men
with fat wallets. Fairly viewed, greed — not social group
membership — is the apparent trigger for the gangs' interest, see
Lopez de Hincapie v. Gonzales, 494 F.3d 213, 219 (1st Cir. 2007)
(rejecting claim for withholding of removal where evidence
suggested that petitioner was targeted "because of greed, not
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because of her political opinion or membership in a particular
social group"), and mere vulnerability to criminal predations
cannot define a cognizable social group, see, e.g., Sicaju-Diaz v.
Holder, 663 F.3d 1, 4 (1st Cir. 2011).
To cinch matters, persecution requires some nexus to the
government. See López-Castro, 577 F.3d at 55 (rejecting claim for
withholding of removal where petitioner failed to link feared gang
violence with Guatemalan government). Here, however, the
petitioner has not shown any connection between the violence that
she fears and the government of Guatemala.
We need go no further. For the reasons elucidated above,
we deny the petition for judicial review.
So Ordered.
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