Carlos Gonzalez Osorio v. Merrick B. Garland ( 2022 )

United States Court of Appeals
For the Eighth Circuit
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No. 21-3555
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Carlos H. Gonzalez Osorio; Berta Rossana Monterroso De Gonzalez; B.A.G.M.
Petitioners
v.
Merrick B. Garland, Attorney General of the United States
Respondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: July 19, 2022
Filed: July 26, 2022
[Unpublished]
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Before BENTON, SHEPHERD, and GRASZ, Circuit Judges.
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PER CURIAM.
Guatemalan citizens Carlos H. Gonzalez Osorio, Berta Rossana Monterroso
De Gonzalez, and their daughter, “B.A.G.M.” (collectively, “the Gonzalez Osorios”)
petition for review of an order of the Board of Immigration Appeals (BIA). Having
jurisdiction under 8 U.S.C. § 1252, this court denies the petition.
The BIA dismissed the Gonzalez Osorios’s appeal from the decision of an
immigration judge denying their requests for asylum and withholding of removal
relief.1 The Gonzalez Osorios’s challenge to the characterization of their proposed
particular social group, raised for the first time on appeal, is not properly before this
court. See Ateka v. Ashcroft, 384 F.3d 954, 957 (8th Cir. 2004) (if petitioner fails to
raise particular issue when he appeals to BIA, he has not exhausted administrative
remedies); cf. Mayorga-Rosa v. Sessions, 888 F.3d 379, 382-83 (8th Cir. 2018)
(burden is on applicant to propose a particular social group).
The court finds no error—whether considering the particular social group
presented to the agency, or the one raised on appeal—in the agency’s determination
that the Gonzalez Osorios did not demonstrate the requisite nexus between their fear
of persecution, and membership in a proposed particular social group. See Silvestre-
Giron v. Barr, 949 F.3d 1114, 1119 & n.3 (8th Cir. 2020) (nexus is a factual
determination reviewed for substantial evidence); Garcia-Moctezuma v. Sessions,
879 F.3d 863, 869 (8th Cir. 2018) (this court will reverse only if it determines that a
reasonable factfinder would have to conclude that the petitioner’s proposed
protected ground “actually and sufficiently motivated his persecutors’ actions”).
Further, the failure to establish a sufficient nexus was dispositive of their claims for
asylum. See Baltti v. Sessions, 878 F.3d 240, 245 (8th Cir. 2017) (per curiam) (lack
of nexus is a basis to deny an asylum application). Substantial evidence supports
the agency’s conclusion that the Gonzalez Osorios were not eligible for withholding
of removal relief. See Martin Martin v. Barr, 916 F.3d 1141, 1145 (8th Cir. 2019)
(noncitizen who cannot establish eligibility for asylum necessarily cannot meet more
rigorous standard of proof for withholding of removal).
1
The applications of Berta Rossana Monterroso De Gonzalez and B.A.G.M.
are derivative of Carlos Gonzalez Osorio’s application. See 8 U.S.C.
§ 1158(b)(3)(A), (B). The denial of relief under the Convention Against Torture is
not before this panel. See Chay-Velasquez v. Ashcroft, 367 F.3d 751, 756 (8th Cir.
2004) (claim not raised in opening brief is waived).
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The petition is denied. See 8th Cir. R. 47B.
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