Carlos Chilel v. Eric H. Holder, Jr. , 779 F.3d 850 ( 2015 )

United States Court of Appeals
For the Eighth Circuit
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No. 14-1936
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Carlos Juarez Chilel
lllllllllllllllllllllPetitioner
v.
Eric H. Holder, Jr., Attorney General of the United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: December 10, 2014
Filed: March 10, 2015
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Before BYE, SMITH, and KELLY, Circuit Judges.
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KELLY, Circuit Judge.
Carlos Juarez Chilel, a native and citizen of Guatemala, petitioned for asylum
under 8 U.S.C. § 1158(a)(1), withholding of removal under 8 U.S.C. § 1231(b)(3)(A),
and relief under the Convention Against Torture (CAT) pursuant to
8 C.F.R. § 1208.16(c). The Immigration Judge (IJ) denied his asylum petition as
untimely and denied his requests for withholding of removal and for CAT relief on
the merits. The Board of Immigration Appeals (BIA) affirmed the IJ’s decision.
Juarez Chilel seeks review. We deny his petition.
I. Background
Juarez Chilel was born on April 23, 1986, in San Antonio, Guatemala. In 2008,
he was living in Guatemala City, Guatemala, during which time he was threatened by
a local gang and stabbed in the arm when he refused to join the gang. He informed
the police about the incident, but he did not seek medical treatment for his injured
arm. Juarez Chilel left Guatemala City two or three days after the incident and
returned to his hometown of San Antonio. He stayed in San Antonio for several
months before entering the United States in September 2009.
On May 4, 2010, Juarez Chilel was taken into the custody of the Immigration
and Customs Enforcement agency after being arrested and charged with providing
false information and having forged identification. He appeared before the IJ on
November 8, 2010, where he conceded he was subject to removal. He thereafter filed
an application for asylum, withholding of removal, and protection under the CAT.
After he submitted a written application for relief, a second hearing was held before
the IJ on July 19, 2012.
At this second hearing, Juarez Chilel testified about his altercation with the
gang in Guatemala City. He conceded he did not know the result of the police
investigation because he had not followed up with law enforcement and admitted he
had never experienced any violence in San Antonio. He testified that he had received
a letter from his sister the week prior describing a feud between two neighboring
towns over some government property, and this feud was taking place in “the area in
which [he was] born.” He had also spoken with his mother the day before the
hearing; she told him “everything was bad” and that he should stay in the United
States. Both of Juarez Chilel’s parents and four of his siblings still live in San
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Antonio. Juarez Chilel also testified that his brother was threatened by a
machete-wielding gang member in Guatemala because he refused to join a gang, but
that brother has been in the United States since 2005 or 2006. Juarez Chilel conceded
none of his other family members in San Antonio have personally experienced
violence or threats while living in Guatemala.
The IJ denied Juarez Chilel’s application for asylum as time-barred because he
failed to file the application within one year of his entrance into the United States and
did not satisfy a statutory exception to the one-year requirement. The IJ also denied
Juarez Chilel’s request for withholding of removal and CAT relief on the merits and
ordered his removal from the United States. The BIA affirmed the IJ’s decision,
finding that Juarez Chilel failed to demonstrate changed circumstances under
8 U.S.C. § 1158(a)(2)(D) and that he failed to establish his membership in a distinct
social group for purposes of his request for withholding of removal. The BIA also
found that Juarez Chilel’s claim under the CAT was without a factual basis, as he
failed to establish the Guatemalan government harmed him.
II. Discussion
On appeal, Juarez Chilel argues his application for asylum is not time-barred
because he established “changed circumstances” in accordance with
8 U.S.C. § 1158(a)(2)(D). For purposes of withholding of removal, he contends he
has experienced past persecution and has a well-founded fear of future persecution
not only because he refused to join a gang, but also because he is a member of the
Mam ethnic group in Guatemala. Finally, he contends he will suffer torture if forced
to return to Guatemala and thus should receive relief under the CAT.
We have jurisdiction to review final orders of removal pursuant to
8 U.S.C. § 1252(a)(1). This court “generally review[s] the BIA’s decision as the final
agency action, but where the BIA essentially adopted the IJ’s opinion while adding
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some of its own reasoning, we review both decisions.” Osonowo v. Mukasey, 521
F.3d 922, 926 (8th Cir. 2008) (quotation omitted). “We review the agency
determination that an alien is not eligible for asylum, withholding of removal, or
relief under the Convention Against Torture using the deferential substantial evidence
standard.” Id. at 927. “Under this deferential standard of review, we are not at liberty
to reweigh the evidence, and we will uphold the denial of relief unless the alien
demonstrates that the evidence was so compelling that no reasonable fact finder could
fail to find the requisite fear of persecution.” Id. (quotation omitted).
a. Application for Asylum
Juarez Chilel entered the United States in September 2009, and he did not file
an asylum application until November 2010. He therefore missed the one-year
statutory deadline for requesting asylum. See 8 U.S.C. § 1158(a)(2)(B) (stating that
asylum in the United States is not available to an alien “unless the alien demonstrates
by clear and convincing evidence that the [asylum] application has been filed within
1 year after the date of the alien’s arrival in the United States.”).
There are exceptions to this one-year filing rule:
An application for asylum of an alien may be considered . . . if the alien
demonstrates to the satisfaction of the Attorney General either the
existence of changed circumstances which materially affect the
applicant’s eligibility for asylum or extraordinary circumstances relating
to the delay in filing an application within the [one-year period].
8 U.S.C. § 1158(a)(2)(D). The IJ determined, and the BIA agreed, that Juarez Chilel
did not meet any exception set forth in § 1158(a)(2)(D), and his application for
asylum was deemed untimely.
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When an IJ has “determined that the untimeliness of [the applicant’s] asylum
application was not excused by exceptional circumstances or changed conditions
within the meaning of 8 U.S.C. § 1158(a)(2)(D), we lack jurisdiction to review [the
applicant’s] asylum claim.” Mouawad v. Gonzales, 485 F.3d 405, 411 (8th Cir.
2007); see 8 U.S.C. § 1158(a)(3) (“No court shall have jurisdiction to review any
determination of the Attorney General [as to whether an exception to the one-year
application requirement applies].”); Jallow v. Gonzales, 472 F.3d 569, 571 (8th Cir.
2007) (holding that because the IJ determined the claimant did not satisfy one of the
statutory exceptions to cure an untimely asylum application, the court is precluded
from reviewing that timeliness determination on appeal). Juarez Chilel does not raise
any “colorable constitutional challenges or questions of law, but instead . . . [quarrels]
with the BIA’s discretionary factual determination” that he failed to prove changed
country circumstances to cure his untimely application, so we lack jurisdiction to
review whether Juarez Chilel’s asylum claim was timely filed. See Manani v. Filip,
552 F.3d 894, 900 (8th Cir. 2009) (quotation and internal citation omitted).
b. Withholding of Removal
Juarez Chilel also sought withholding of his removal to Guatemala. The
one-year deadline for an asylum application does not apply to a request for
withholding of removal. See Mouawad, 485 F.3d at 411. “[T]he Attorney General
may not remove an alien to a country if the Attorney General decides that the alien’s
life or freedom would be threatened in that country because of the alien’s race,
religion, nationality, membership in a particular social group, or political opinion.”
8 U.S.C. § 1231(b)(3)(A). To qualify for withholding of removal, Juarez Chilel must
show that he has experienced past persecution on account of one of those
characteristics or that, based on that characteristic, there is “a clear probability that
his . . . life or freedom would be threatened in the proposed country” if he were forced
to return. Mouawad, 485 F.3d at 411 (quotations and internal citation omitted); see
8 C.F.R. § 1208.16(b)(1) and (2).
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“A social group requires sufficient particularity and visibility such that the
group is perceived as a cohesive group by society.” Garcia v. Holder, 746 F.3d 869,
872 (8th Cir. 2014) (quotation and alteration omitted); see 8 U.S.C. § 1101(a)(42)(A).
“Membership in a particular social group refers to persons who hold an immutable
characteristic, or common trait such as sex, color, kinship, or . . . shared past
experiences.” Garcia, 746 F.3d at 872 (quotation and alteration omitted). “[T]he
visibility requirement tests whether the members of the group are perceived as a
group by society, such that these individuals suffer from a higher incidence of crime
than the rest of the population.” Id. at 873 (quotations omitted).
Before the IJ, Juarez Chilel contended he suffered past persecution and was
concerned about future persecution because he refused to join a gang in Guatemala
City. He asserts he is part of a “social group” made up of individuals who are victims
of gang violence. “A group of persons defined as those who suffer violence because
they refused to join criminal gangs lacks the visibility and particularity required to
constitute a social group for purposes of 8 U.S.C. § 1101(a)(42)(A).” Ortiz-Puentes
v. Holder, 662 F.3d 481, 483 (8th Cir. 2011) (quotation omitted); see also Constanza
v. Holder, 647 F.3d 749, 754 (8th Cir. 2011) (“[P]ersons resistant to gang violence
are too diffuse to be recognized as a particular social group.” (Quotation omitted)).
Similarly, Juarez Chilel has offered no evidence to support the conclusion that his
purported group—those who refuse to join a gang and suffer from threats of violence
as a result—shares “a common immutable characteristic,” is “defined with
particularity,” or is sufficiently socially distinct to qualify as a “particular social
group.” See Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (2014) (clarifying that
“an applicant for asylum or withholding of removal seeking relief based on
‘membership in a particular social group’ must establish that the group is
(1) composed of members who share a common immutable characteristic, (2) defined
with particularity, and (3) socially distinct within the society in question.”).
Accordingly, his withholding of removal claim fails.
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For the first time on appeal, Juarez Chilel asserts that he is part of another
distinct social group—the Mam ethnic group. When asked at the hearing before the
IJ what language he spoke, Juarez Chilel said he spoke both Spanish and the Mam
language. This is the only reference in the hearing record to the ethnic Mam. More
to the point, Juarez Chilel did not argue to the IJ that he was part of the Mam group
or that his inclusion in that group was a reason for any past or future persecution for
himself or his family. By failing to identify himself as a member of the Mam group
or address its applicability to his requests for relief before the IJ or BIA, Juarez Chilel
has failed to exhaust his administrative remedies on this issue. This court therefore
does not have jurisdiction over his claim. See Constanza, 647 F.3d at 754 n. 3
(“‘Failure to raise an issue before the agency constitutes a failure to exhaust
administrative remedies and deprives this court of jurisdiction to hear the matter.’”
(quoting Sultani v. Gonzales, 455 F.3d 878, 884 (8th Cir. 2006))).
In the alternative, Juarez Chilel argues that, once he testified that he spoke both
Spanish and Mam, the IJ had a duty to develop the record regarding this potential
social group. Juarez Chilel contends the IJ erred by failing to follow-up and ask him
if he was also a member of the Mam ethnic group or another ethnic group in
Guatemala and that this error should allow for remand. Any argument that the IJ had
a duty to develop the record on this issue was not raised before the BIA. As a result,
Juarez Chilel failed to exhaust his administrative remedies, and this issue is not
properly before us. See Lybesha v. Holder, 569 F.3d 877, 882 (8th Cir. 2009)
(“Petitioners did not raise any allegation of bias in their appeal, however. By not
raising this issue before the BIA they failed to exhaust their administrative remedies
and deprived this court of jurisdiction over this claim.”); see also 8 U.S.C. § 1252(d)
(“A court may review a final order of removal only if—(1) the alien has exhausted all
administrative remedies available to the alien as of right . . . .”).1
1
On appeal, Juarez Chilel discusses the land feud near his hometown, but he
fails to explain how this feud qualifies him for withholding of removal. While it is
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c. Convention Against Torture
To receive relief under the CAT, Juarez Chilel is not required to show he
belongs to a protected group; rather, he “must demonstrate that it is more likely than
not that [he] will be tortured if removed to Guatemala.” Garcia, 746 F.3d at 873.
“The torture must be ‘by or at the instigation of or with the consent or acquiescence
of a public official or other person acting in an official capacity.’” Id. (quoting
8 C.F.R. § 1208.18(a)(1)). “Demonstrating acquiescence of a public official requires
proof that the public official, prior to the activity constituting torture, have awareness
of such activity and thereafter breach his or her legal responsibility to intervene to
prevent such activity.” Id. (quotation omitted).
This inquiry centers upon the willfulness of a government’s non-
intervention. A government does not acquiesce in the torture of its
citizens merely because it is aware of torture but powerless to stop it, but
it does cross the line into acquiescence when it shows willful blindness
toward the torture of citizens by third parties.
Id. (quotations and internal citation omitted). While it may be that “the Guatemalan
government is less than successful at preventing the torture of its citizens by gang
members,” this conclusion alone does not mean that “the government is willfully
blind toward it.” Id. at 874.
Juarez Chilel asserts that the altercation with members of the Guatemala City
gang amounted to torture, he fears future torture from gang violence, and the
unclear if he raised this issue before the IJ, it is evident that he has waived it on
appeal. See Mambwe v. Holder, 572 F.3d 540, 550 n. 7 (8th Cir. 2009) (refusing to
consider an argument not raised in the claimant’s opening brief in an immigration
appeal).
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Guatemalan government acquiesces in the torture of people like him—those who
resist gang violence. Yet he has offered no evidence to support his assertions. Juarez
Chilel told law enforcement about his injury at the hands of gang members, but he
admits he never followed up to determine whether they had taken any action in
response. Without more, Juarez Chilel has failed to present a case of willful
non-intervention by law enforcement sufficient to meet the requirements under the
CAT. See Marroquin-Ochoma v. Holder, 574 F.3d 574, 580 (8th Cir. 2009) (finding
that the evidence showed only weak, inexperienced law enforcement, not that the
government acquiesced in gang activity).2
III. Conclusion
For the reasons above, we deny the petition for review.
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2
As with his withholding of removal claim, it is unclear whether Juarez Chilel
argued before the IJ that he should receive CAT protection based on any unrest
resulting from the land feud, but he has failed on appeal to explain how the
Guatemalan government acquiesces in any torture of its citizens based on this feud.
It is, therefore, waived. See Mambwe, 572 F.3d at 550 n. 7. To the extent Juarez
Chilel asserts, for purposes of his petition for protection under the CAT, that the
Guatemalan government acquiesces in the torture and persecution of the Mam ethnic
group, this claim was not raised before the IJ or BIA, and we lack jurisdiction to
address it. See Doe v. Holder, 651 F.3d 824, 830 (8th Cir. 2011).
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