Gonzalez-Arevalo v. Garland ( 2024 )

United States Court of Appeals
For the First Circuit
No. 23-1341
HENRY DONALDO GONZALEZ-AREVALO,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Gelpí, Selya, and Thompson,
Circuit Judges.
Randy Olen for petitioner.
Brandon T. Callahan, Trial Attorney, U.S. Department of
Justice, Civil Division, Office of Immigration Litigation, with
whom Brian M. Boynton, Principal Deputy Assistant Attorney
General, Civil Division, and Jennifer R. Khouri, Senior Litigation
Counsel, Office of Immigration Litigation, were on brief, for
respondent.
August 7, 2024
GELPÍ, Circuit Judge. Petitioner Henry Donaldo
Gonzalez-Arevalo ("Gonzalez-Arevalo"), a native and citizen of
Guatemala, petitions for review of a final order of the Board of
Immigration Appeals ("BIA") affirming the immigration judge's
("IJ") denial of his request for asylum, withholding of removal,
and protection under the Convention Against Torture ("CAT"). The
BIA and IJ (collectively, "the agency") found, in part, that
Gonzalez-Arevalo failed to prove that he was persecuted "on account
of" a statutorily protected ground. 8 U.S.C. § 1101(a)(42)(A).
That finding was supported by substantial evidence, and
Gonzalez-Arevalo's arguments to the contrary are unpersuasive. We
deny his petition.
I. BACKGROUND
We draw our background "from the administrative record,
including [Gonzalez-Arevalo's] testimony before the IJ, which the
IJ found credible." Chun Mendez v. Garland, 96 F.4th 58, 61 (1st
Cir. 2024).
A. Underlying Facts
Gonzalez-Arevalo is a thirty-eight-year-old native and
citizen of Guatemala. He entered the United States without
authorization in 2003, returned to Guatemala in 2010, and reentered
the United States without authorization in 2012. Immigration
officials detained him in January 2012. On February 24, 2012, an
asylum officer conducted a credible fear interview with
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Gonzalez-Arevalo and determined that he had established a credible
fear of persecution in Guatemala. In the interview,
Gonzalez-Arevalo explained that he feared harm because the
relatives of the man who murdered his father and uncle believed
that Gonzalez-Arevalo was responsible for the man's incarceration.
The Department of Homeland Security ("DHS") served
Gonzalez-Arevalo on February 27, 2012, with a Notice to Appear in
immigration court. DHS charged him with removability as a
noncitizen not in possession of a valid entry document, 8 U.S.C.
§ 1182(a)(7)(A)(i)(I). He admitted those allegations and conceded
his removability on June 9.
He then applied for asylum, withholding of removal, and
CAT protection on December 18. He based his application in part
on his membership in a particular social group ("PSG") and
explained that his "father was killed by a local criminal gang."
According to Gonzalez-Arevalo, this gang also "chased [him] with
guns" and "set fire to [his] car." He remained "afraid that the
gang [would] kill [him] for reprisal because the leader served
some time in jail."
He explained in an affidavit supporting his application
that, when he was a child, a local gang leader known as "El Vicioso"
("the vicious one") and two or three other individuals murdered
his father and uncle in a home invasion in Guatemala in 1988. El
Vicioso was imprisoned, but Gonzalez-Arevalo remained afraid of El
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Vicioso's family, who still live in Guatemala. Gonzalez-Arevalo
also described how unknown gang members in Guatemala killed his
two cousins and a family friend.
Gonzalez-Arevalo testified further about these
experiences at a hearing before the IJ on July 23, 2019.1 He
described his proposed PSG as "Guatemalan males who, and whose
family, have suffered past persecution by means of murder of the
father of the family by gangs." "[T]he family of those two that
are incarcerated" for his father and uncle's murder, he explained,
"think that [he and his family] are at fault for that,
so . . . that's the reason why the problems have continued."
Indeed, he clarified that El Vicioso's relatives "think that [he
and his family] did that to him." Gonzalez-Arevalo explained that
one of the killers was a member of his own family, and his father
and uncle's murder was in "vengeance" for some previous slight.
Gonzalez-Arevalo also detailed the attacks in 2010 in
Guatemala that grounded his asylum application:
• Car explosion: While driving through Guatemala City,
Gonzalez-Arevalo left his car to buy something. The car
then exploded. Police officers investigating the explosion
told Gonzalez-Arevalo that they suspected that something
was placed inside the car to cause the explosion.
1 Gonzalez-Arevalo's hearing was originally scheduled for
May 6, 2014. He failed to appear, so the IJ ordered him removed
in absentia. However, on October 1, 2014, the IJ granted
Gonzalez-Arevalo's motion to reopen the case. After several
extensions, the IJ finally held the hearing on July 23, 2019.
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• Wedding Attack: Gonzalez-Arevalo went to a wedding in
Guatemala. Some men learned that he would attend and, with
the intent to attack him, went to the wedding. Armed with
guns, they chased him from the wedding.
Gonzalez-Arevalo did not know the names of the individuals who
attacked him. Nor was he aware of how many people were responsible
for either attack.
The IJ inquired more about the motivations of
Gonzalez-Arevalo's attackers. She asked if he believed that these
incidents happened "because [his] father's murderers were sent to
jail," and he agreed with that characterization. With that, she
then asked if his "problems in Guatemala . . . were because of
reprisals" from El Vicioso's incarceration and if Gonzalez-Arevalo
feared future harm "because of these reprisals." He answered,
"Yes," to both questions.
B. Procedural History
The IJ denied Gonzalez-Arevalo's application. First
finding him credible, the IJ determined that Gonzalez-Arevalo's
"experiences in Guatemala d[id] not rise to the level of
persecution." Nor was his proposed PSG cognizable. Even if he
met these requirements, the IJ stated that "fear of retribution
over personal matters is not a basis for asylum." She concluded
that his alleged persecutors were motivated by vengeance for the
incarceration of the murderers. That personal motivation meant
that the attacks were not on account of a statutorily protected
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ground, so his experiences in Guatemala could not ground a past or
future persecution claim. Because his asylum claim faltered, the
IJ denied his withholding of removal claim.2
Gonzalez-Arevalo appealed to the BIA. He challenged the
IJ's conclusion that his proposed PSG, which he described on appeal
as "Guatemalan males whose family and whom have suffered past
persecution, including murder, at the hands of criminal gangs,"3
was inadequate and that he did not show persecution. He also
challenged the IJ's conclusion that he was targeted for
retribution.
The BIA affirmed. It adopted the IJ's reasoning and
supplemented her conclusion that Gonzalez-Arevalo did not show
that a protected ground "was or will be at least one central reason
for his persecution." The BIA noted that, although "the presence
of a non-protected motivation does not render the applicant
ineligible for asylum," a "central" reason is not "merely
The IJ also denied his CAT claim. Gonzalez-Arevalo neither
2
appealed that claim to the BIA nor asked us to review it. It is,
therefore, waived. See Jimenez-Portillo v. Garland, 56 F.4th 162,
165 (1st Cir. 2022).
Gonzalez-Arevalo's PSG in his Notice of Appeal to the BIA
3
was "Guatemalan males whose family have suffered past persecution
by virtue of multiple murders by gangs and political opinion,
belief in the rule of law." That PSG matched his asylum
application, where he claimed asylum based on his political opinion
and PSG membership. He did not raise any claim concerning his
"political opinion" in his brief to us. He thus waived any
argument concerning this point. See Berrio-Barrera v. Gonzales,
460 F.3d 163, 168 (1st Cir. 2006).
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incidental (i.e., minor, casual, or subordinate) or tangential
(i.e., superficially relevant)." The BIA then cited
Gonzalez-Arevalo's testimony describing the 2010 attacks as
"reprisal" for his father and uncle's murderers' incarceration.
With that record support, the BIA concluded that the IJ did not
clearly err when she found that family membership was not one
central reason for these attacks.
This timely petition for judicial review, over which we
have jurisdiction, followed. 8 U.S.C. § 1252(a)(1).
II. DISCUSSION
A. Legal Standards
"Where, as here, the BIA adopts and affirms the IJ's
ruling but nevertheless examines some of the IJ's conclusions, we
review both the BIA and IJ opinions as a unit." Barnica-Lopez v.
Garland, 59 F.4th 520, 527 (1st Cir. 2023) (cleaned up) (citation
omitted) (quoting Gómez-Medina v. Barr, 975 F.3d 27, 31 (1st Cir.
2020)). And, as here, "[w]e evaluate 'the IJ's decision to the
extent of the adoption, and the BIA's decision as to [any]
additional ground.'" Esteban-Garcia v. Garland, 94 F.4th 186,
190-91 (1st Cir. 2024) (second alteration in original) (quoting
López-Pérez v. Garland, 26 F.4th 104, 110 (1st Cir. 2022)).
We review the agency's legal conclusions de novo. Chun
Mendez, 96 F.4th at 64. But we review its factual findings under
the substantial evidence standard. Id. Under this highly
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deferential standard, "we will only disturb the agency's findings
if, in reviewing the record as a whole, 'any reasonable adjudicator
would be compelled to conclude to the contrary.'" Barnica-Lopez,
59 F.4th at 527 (quoting Gómez-Medina, 975 F.3d at 31). "That the
record supports a conclusion contrary to that reached by the
[agency] is not enough to warrant upsetting the [agency's] view of
the matter; for that to occur, the record must compel the contrary
conclusion." Santos Garcia v. Garland, 67 F.4th 455, 460-61 (1st
Cir. 2023) (quoting Hincapie v. Gonzales, 494 F.3d 213, 218 (1st
Cir. 2007)).
Under the INA, an asylum applicant must prove that he is
a "refugee," someone "who is unable or unwilling to return to" his
country of origin "because of persecution or a well-founded fear
of persecution on account of race, religion, nationality,
membership in a [PSG], or political opinion." 8 U.S.C.
§ 1101(a)(42)(A). Persecution in this sense "requires proof of 'a
certain level of serious harm (whether past or anticipated), a
sufficient nexus between that harm and government action or
inaction, and a causal connection to one of th[ose] statutorily
protected grounds.'" Barnica-Lopez, 59 F.4th at 527 (quoting
Martínez-Pérez v. Sessions, 897 F.3d 33, 39 (1st Cir. 2018)).
To establish eligibility for withholding of removal due
to persecution, the applicant must show the same elements as
required for the asylum claim but his "burden is even higher."
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Chun Mendez, 96 F.4th at 64 (quoting Varela-Chavarria v. Garland,
86 F.4th 443, 449 (1st Cir. 2023)). An applicant must show "a
clear probability that, if returned to his homeland, he will be
persecuted on account of a statutorily protected ground."
Barnica-Lopez, 59 F.4th at 527 (quoting Sanchez-Vasquez v.
Garland, 994 F.3d 40, 46 (1st Cir. 2021)). "[T]he substantive
similarities in the standards for asylum and withholding of removal
claims" make it so that "asylum precedents may be helpful in
analyzing withholding-of-removal cases, and vice versa."
Espinoza-Ochoa v. Garland, 89 F.4th 222, 230 (1st Cir. 2023)
(internal quotation marks omitted) (quoting Barnica-Lopez, 59
F.4th at 528).
B. Asylum Claim
Gonzalez-Arevalo targets the agency's findings on all
fronts: that he did not prove harm rising to the level of
persecution, articulate a cognizable PSG, or establish a nexus
between the harm he suffered and a protected ground. The
government contests every point. In part, it argues that the PSG
he raised before the agency was impermissibly circular and that
his PSG on appeal of "membership in the Gonzalez-Arevalo family"
is unexhausted. Yet it also suggests that we can affirm on the
independent, "[d]ispositive" basis that Gonzalez-Arevalo failed to
meet his burden to prove a nexus between the harm he suffered and
a protected ground.
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"For both past and future persecution claims, '[a]n
inability to establish any one of the three elements of persecution
will result in a denial of [the] asylum application.'"
Esteban-Garcia, 94 F.4th at 191 (alterations in original) (quoting
Aguilar-De Guillen v. Sessions, 902 F.3d 28, 33 (1st Cir. 2018)).
We assume without deciding that his PSG is "membership in the
Gonzalez-Arevalo family," that this social group is cognizable and
exhausted, and that his alleged instances of persecution rise to
a certain level of serious harm. See Cabrera v. Garland, 100 F.4th
312, 321 (1st Cir. 2024) (assuming that the petitioner's proposed
social group was, as he claimed, "small business owners" and that
he exhausted this group because his asylum claim was still "without
merit" (quoting Reyes Pujols v. Garland, 37 F.4th 1, 5 (1st Cir.
2022))). To resolve this petition for review, we turn to the nexus
requirement.
1. Nexus to a Protected Ground
"To meet the nexus requirement, the petitioner must have
provided sufficient evidence of an actual connection between the
harm she suffered and her protected trait." Esteban-Garcia, 94
F.4th at 192 (cleaned up) (quoting Ivanov v. Holder, 736 F.3d 5,
12 (1st Cir. 2013)). "A causal connection between the harm
incurred and the petitioner's statutorily protected ground exists
only if the protected ground 'was "one central reason" for the
harm alleged.'" Odei v. Garland, 71 F.4th 75, 79 (1st Cir. 2023)
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(quoting Sanchez-Vazquez, 994 F.3d at 47); see 8 U.S.C.
§ 1158(b)(1)(B)(i). The "one central reason" standard recognizes
that persecutors "may have more than one motivation."
Barnica-Lopez, 59 F.4th at 528 (quoting Singh v. Mukasey, 543 F.3d
1, 5 (1st Cir. 2008)). So, "[t]he statutorily protected ground
need not be the sole factor driving the alleged persecution."
Odei, 71 F.4th at 79 (quoting Barnica-Lopez, 59 F.4th at 528).
Still, Gonzalez-Arevalo must prove that his proposed
social group "was not 'incidental, tangential, superficial, or
subordinate to another reason for [the] harm.'" Espinoza-Ochoa,
89 F.4th at 235 (alteration in original) (quoting Barnica-Lopez,
59 F.4th at 531). In other words, Gonzalez-Arevalo's family
membership "must be at the root of the persecution, so that family
membership itself brings about the persecutorial conduct."
Barnica-Lopez, 59 F.4th at 530 (quoting Ruiz-Escobar v. Sessions,
881 F.3d 252, 259 (1st Cir. 2018)). We have been clear that the
mere fact that persecutors targeted family members "does not
convert [a] non-protected criminal motivation into persecution on
the basis of family connections." Loja-Tene v. Barr, 975 F.3d 58,
62 (1st Cir. 2020) (quoting Aldana-Ramos v. Holder, 757 F.3d 9, 19
(1st Cir. 2014)). So, to draw the line, we ask "whether it is
possible to disentangle the applicant's family status from the
persecutor's other motives, or if they are two sides of the same
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coin." Ferreira v. Garland, 97 F.4th 36, 47 (1st Cir. 2024)
(internal quotation marks and citation omitted).
To prevail below, Gonzalez-Arevalo needed to "provide
some evidence to establish that [his family membership] was at
least one central reason." Esteban-Garcia, 94 F.4th at 192
(internal quotation marks and citations omitted). We review the
agency's contrary finding under the substantial-evidence standard.
See Barnica-Lopez, 59 F.4th at 530.
Gonzalez-Arevalo first argues that the record does not
support the agency's finding that his family membership was
subordinate to his alleged persecutors' desire for reprisal for
the incarceration. Not so. "[E]vents that stem from personal
disputes are generally not enough to show the required nexus
between past harm and a protected ground," and "disputes motivated
by revenge [are] personal in nature." Id. at 531 (internal
quotation marks and citations omitted). Gonzalez-Arevalo
testified that his persecutors attacked him because they believed
that he was "at fault" for the incarceration. And he agreed with
the IJ that the 2010 attacks were "reprisals" for that
incarceration. Even in his asylum application and credible fear
interview, Gonzalez-Arevalo explained that he feared reprisal
because his persecutors believed that he was responsible for El
Vicioso's incarceration. The record therefore supports the
agency's finding that Gonzalez-Arevalo's family membership was
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"incidental or subordinate to [his] assailants' vengeful purpose."
Id.
Although Gonzalez-Arevalo contends that his family
members' deaths and the 2010 attacks in Guatemala compelled a
contrary conclusion, we are unpersuaded. "[I]t is not enough
merely to show that multiple members of a single family had
negative experiences" when nothing in the record "causally
link[s]" those experiences and family membership. Ruiz v. Mukasey,
526 F.3d 31, 38 (1st Cir. 2008). "And when an asylum-seeker does
not 'know[] who was responsible' for a killing, 'it is no more
than a guess that a nexus existed between the [killing] and a
statutorily protected ground.'" Jimenez-Portillo, 56 F.4th at
168-69 (alterations in original) (quoting López-Castro v. Holder,
577 F.3d 49, 53 (1st Cir. 2009)). Gonzalez-Arevalo could not offer
any details about his alleged persecutors in Guatemala. Nor could
he say who killed his cousins and family friend or why, stating
only that gang violence in Guatemala -- without linking that
violence to their shared kinship or even El Vicioso's
incarceration -- caused their deaths. All he could do was "guess"
that these deaths and attacks were connected to family membership.
Id. at 169 (quoting López-Castro, 577 F.3d at 53). That is not
enough to compel a reasonable adjudicator to reach a contrary
conclusion. See id. at 168-69.
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Gonzalez-Arevalo also claims that his testimony was
"speculati[ve]" and implies that the agency needed to rely on other
evidence to establish that family membership was subordinate to
his persecutors' desire for vengeance. We reject this argument.
The agency may rely upon the credible testimony of an asylum-seeker
in analyzing an asylum claim. See Barnica-Lopez, 59 F.4th at 531
(affirming the agency's finding that family membership was
incidental to revenge in motivating persecution where the
petitioners "consistently testified that they believed they were
threatened because an associate had shot one of the assailants");
Esteban-Garcia, 94 F.4th at 192-93 (affirming the agency's finding
that the petitioner's ethnicity did not motivate persecution where
she testified that her persecutors pressured her into prostitution
for financial gain); Ferreira, 97 F.4th at 47 (affirming the
agency's finding that the petitioner's family membership did not
motivate her persecution based in part on her testimony that her
uncle "was motivated by his own criminal, sexual desires"). And
even assuming for argument's sake that Gonzalez-Arevalo's
testimony was "speculati[ve]," he would not prevail. "He
present[ed] no evidence other than" that "speculation" -- coupled
with the unconnected deaths of family members -- "to link" his
harm to his family membership. Khalil v. Ashcroft, 337 F.3d 50,
55 (1st Cir. 2003). Either way, the agency's no-nexus finding
stands.
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Gonzalez-Arevalo next asserts that the agency focused on
a non-protected ground without considering mixed motives.
However, the BIA cited caselaw acknowledging "that multiple
motivations can exist, and the presence of a non-protected
motivation does not render the applicant ineligible for asylum."
These accurate, on-point citations "necessarily 'acknowledged the
possibility of a mixed-motive case.'" Barnica-Lopez, 59 F.4th at
529 (quoting Villalta-Martinez v. Sessions, 882 F.3d 20, 24 (1st
Cir. 2018)). Moreover, the BIA pointed to the record before
discerning no error in the IJ's finding that the attacks in
Guatemala were "due to retribution or reprisal." Because the BIA
cited the mixed-motive standard and supported its conclusion with
facts drawn from the record, we conclude that it analyzed for mixed
motives and "made a fact-specific determination that
[Gonzalez-Arevalo] had not shown that the persecution was
motivated by a family relationship." Barnica-Lopez, 59 F.4th at
529-30 (quoting Villalta-Martinez, 882 F.3d at 24).
This makes Gonzalez-Arevalo's analogy to Aldana-Ramos
inapt. There, we vacated the BIA's decision "because it did not
allow for the possibility of mixed motives" at all. 757 F.3d at
19. Here, the BIA acknowledged that possibility because it cited
the mixed-motive standard before concluding that the facts did not
bear out Gonzalez-Arevalo's argument. Aldana-Ramos is not like
this case.
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One final point. Gonzalez-Arevalo implies that the
agency had to infer that his family membership motivated his
persecutors (whoever they were) because his family members and
family friend were killed. But "'[t]he mere fact that [a
persecutor] exclusively targeted [family] members' does not compel
the logical inference that kinship motivated" a petitioner's harm.4
Loja-Tene, 975 F.3d at 62 (alterations in original) (quoting
Marín-Portillo v. Lynch, 834 F.3d 99, 102 (1st Cir. 2016)); see
Barnica-Lopez, 59 F.4th at 531-32. Although the agency might have
inferred kinship-based persecution from this pattern, the record
also made it plausible that family membership was subordinate to
reprisal in his persecutors' minds. See Ruiz, 526 F.3d at 37.
For example, Gonzalez-Arevalo testified consistently that he was
targeted for reprisal over the killers' incarceration, and he
presented nothing to tie the 2010 attacks or gang-related deaths
in Guatemala to his kinship. When "the record supports plausible
4 This is not a case where persecutors only imputed a family
member's actions to an asylum seeker. See Pineda-Maldonado v.
Garland, 91 F.4th 76, 85-90 (1st Cir. 2024). Gonzalez-Arevalo
testified consistently that his persecutors believed that he was
responsible for his father and uncle's killers' incarceration.
The agency concluded from this testimony that Gonzalez-Arevalo's
persecutors retaliated against him because of what they believed
he did, not what another family member did. Substantial evidence
therefore supports its conclusion that retribution was "at the
root" of the alleged persecution. Barnica-Lopez, 59 F.4th at 531
(quoting Ruiz-Escobar, 881 F.3d at 259) (substantial evidence
supported the agency's finding that retribution motivated
persecution where the petitioners testified that their assailants
were motivated by "revenge").
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but conflicting inferences in an immigration case, the [agency's]
choice between those inferences is, a fortiori, supported by
substantial evidence." Villafranca v. Lynch, 797 F.3d 91, 97 (1st
Cir. 2015) (quoting Hincapie, 494 F.3d at 219). So it is here.
We uphold the agency's finding that Gonzalez-Arevalo's
family membership was not one central reason for his persecution.
Accordingly, he was not entitled to a presumption of future
persecution. "Fear of future persecution, like past persecution,
must be on account of a protected ground." Esteban-Garcia, 94
F.4th at 194. The agency also rejected Gonzalez-Arevalo's
future-persecution claim based on his failure to prove a nexus
between his harm and a protected ground. Substantial evidence
supported that finding for the reasons we explained above. See
id. at 194-95.
Gonzalez-Arevalo failed to establish a nexus between his
harm and a protected ground. Accordingly, we need not consider
his remaining arguments. See id. at 191.
C. Withholding of Removal
"[A] noncitizen who cannot meet the lower asylum
standard will necessarily fail to make out a counterpart claim
under the higher standard for withholding of removal." Id. at 195
(alteration in original) (quoting López-Pérez, 26 F.4th at 111).
Gonzalez-Arevalo cannot meet the asylum standard, so he cannot
meet the withholding of removal standard.
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III. CONCLUSION
We need go no further. Substantial evidence supports
the agency's finding that Gonzalez-Arevalo did not prove
persecution "on account of" a protected ground. 8 U.S.C.
§ 1101(a)(42)(A). We thus deny his petition.
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