Jaime Oxlaj v. Merrick Garland ( 2023 )

United States Court of Appeals
For the Eighth Circuit
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No. 22-1734
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Jaime Armando Oxlaj
Petitioner
v.
Merrick B. Garland, Attorney General of the United States of America
Respondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: March 16, 2023
Filed: May 3, 2023
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Before COLLOTON, MELLOY, and GRUENDER, Circuit Judges.
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GRUENDER, Circuit Judge.
Jaime Armando Oxlaj petitions for review of the Board of Immigration
Appeals’ (“BIA”) dismissal of his appeal. Oxlaj is an auto mechanic from
Guatemala. He testified that in February 2013 he took the bus to buy some tools.
On the bus ride home, three men robbed him and the other passengers on the bus.
He did not see the faces of two of the robbers. One of the men pressed a knife against
Oxlaj’s right side and took one of his cellphones and his wallet (containing his
identification card). The man had a tattoo that Oxlaj understood to be identified with
a criminal gang. Oxlaj filed a police report and gave the police the number for the
cellphone he still had.
The next day, someone called Oxlaj threatening to kill him for going to the
police, so Oxlaj got a new phone number. In August, someone again called him,
threatening to kill him unless he paid money. Two days later, three men tried to
kidnap him. Oxlaj reported the attempted kidnapping to the police. Fearing these
threats, he came to the United States in November. While in the United States, Oxlaj
learned that a letter was left outside his grandparents’ house, where Oxlaj had lived
in Guatemala, demanding money and threatening him as a consequence for filing a
police report.
In 2014, the Attorney General initiated removal proceedings against Oxlaj.
He then applied for asylum, withholding of removal, and protection under the
Convention Against Torture. To the Immigration Judge (“IJ”), Oxlaj argued that he
was persecuted for his “anti-gang” political opinion and for his membership in the
particular social group of witnesses who cooperate with law enforcement. The IJ
denied his application, concluding that Oxlaj did not show that his proposed social
group is cognizable and did not demonstrate a connection between his persecution
and his imputed political opinion or membership in his proposed social group. Oxlaj
appealed to the BIA, which adopted the IJ’s decision. The BIA agreed with the IJ’s
findings that Oxlaj’s proposed social group is not cognizable and that he has not
established the requisite connection. Oxlaj appeals the BIA’s decision, arguing that
the BIA erred in concluding that his proposed social group lacks particularity and
social distinction and that the BIA’s decision is unclear so we must remand for
clarification.
We review the denial of an application for asylum and withholding of removal
for substantial evidence, see Silvestre-Giron v. Barr, 949 F.3d 1114, 1117 (8th Cir.
2020); Falaja v. Gonzales, 418 F.3d 889, 894 (8th Cir. 2005), but we review
questions of law de novo, Ngugi v. Lynch, 826 F.3d 1132, 1136 (8th Cir. 2016).
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“Under the substantial evidence standard, the agency’s findings of fact must be
upheld unless the alien demonstrates that the evidence he presented not only supports
a contrary conclusion but compels it.” Id. “Only the BIA order is subject to our
review, including the IJ’s findings and reasoning to the extent they were expressly
adopted by the BIA.” Silvestre-Giron, 949 F.3d at 1117.
To be eligible for asylum, Oxlaj must show that he is a refugee, see 8 U.S.C.
§ 1158(b)(1)(A), who is unwilling or unable to return to his home country “because
of persecution or a well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political opinion.” See id.§ 1101(a)(42)(A). “Whether a group is a ‘particular social group’ presents a
question of law, which we review de novo.” Ngugi, 826 F.3d at 1137-38. Because
“particular social group” is ambiguous, we give Chevron deference to the BIA’s
reasonable interpretation of the phrase. Id. at 1138. To demonstrate membership in
a particular social group, the applicant “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.” Id. (quoting
Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014)). As to social
distinction, “persecutory conduct alone cannot define the group. Whether a given
particular social group is perceived as distinct by the society of which it is part
depends on evidence that the society makes meaningful distinctions based on the
common immutable characteristics defining the group.” Fuentes v. Barr, 969 F.3d
865, 871 (8th Cir. 2020).
To qualify for withholding of removal, an applicant has the burden of showing
a clear probability that his “life or freedom would be threatened in the proposed
country of removal on account of race, religion, nationality, membership in a
particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3); Malonga v.
Mukasey, 546 F.3d 546, 551 (8th Cir. 2008).
We begin with Oxlaj’s argument that the BIA erred in concluding that his
proposed social group—witnesses who cooperate with law enforcement—lacks
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social distinction and particularity. We agree with the BIA that Oxlaj has not proven
that his proposed social group is socially distinct. Oxlaj relies on out-of-circuit
precedent to argue that a proposed social group can be socially distinct based on the
perception of the persecutor rather than society as a whole. See Henriquez-Rivas v.
Holder, 707 F.3d 1081, 1090 (9th Cir. 2013). He says that we adopted a similar
view in Gathungu v. Holder, 725 F.3d 900 (8th Cir. 2013). But there we concluded
that “the record amply demonstrates Kenyan society perceives ‘Mungiki defectors’
as a specific group targeted by the Mungiki,” even if “Kenyan society might not be
able to identify a Mungiki defector by sight.” Id. at 908 (emphasis added). Likewise,
in Ngugi, we relied on the principle that society must view the proposed social group
as distinct. 826 F.3d at 1138 (concluding that the petitioner offered no evidence
“that Kenyan society recognizes the unique vulnerability of people who testify
against gang members in criminal proceedings” (internal quotation marks omitted)).
Here, Oxlaj has presented no evidence that Guatemalan society recognizes witnesses
who cooperate with law enforcement as a socially distinct group. Thus, the BIA did
not err in concluding that his proposed social group lacks social distinction and in
denying his asylum claim. See Lemus-Coronado v. Garland, 58 F.4th 399, 404 (8th
Cir. 2023) (agreeing with the BIA that the petitioner failed to establish that her
proposed social group, witnesses who cooperate with law enforcement, was socially
distinct in Guatemala). Because Oxlaj failed to meet his burden of proof for asylum,
he “necessarily fails to meet the higher burden of proof required for withholding of
removal.” See Ngugi, 826 F.3d at 1139 (citing 8 U.S.C. § 1231(b)(3)).
None of Oxlaj’s other arguments warrant granting his petition for review.
Oxlaj asks us to remand for clarification based on three alleged errors. First, Oxlaj
argues that the BIA’s decision is confusing because the BIA adopted the IJ’s
decision and also gave reasons for why it agrees with the IJ’s findings. Under Matter
of Burbano, the BIA is not prohibited from adopting the IJ’s decision and also
explaining why it agrees with the IJ. See 20 I. & N. Dec. 872, 873-74 (B.I.A. 1994)
(stating that the BIA can adopt or affirm a decision of the IJ “in whole or in part”).
Moreover, nothing the BIA said conflicts with the IJ’s reasoning. Oxlaj points to
the BIA’s refusal to address whether the Guatemalan government is unable or
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unwilling to protect Oxlaj from gang violence. But the BIA’s decision did not
conflict with the IJ’s simply because the BIA declined to address an issue that was
unnecessary to its decision.
Second, Oxlaj argues that the BIA erroneously adopted the IJ’s reliance on
Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018), for the presumption against asylum
claims based on private conduct because that decision was later overturned, see
Matter of A-B-, 28 I. & N. Dec. 307 (A.G. 2021). We disagree. Neither the BIA nor
the IJ applied a presumption against Oxlaj’s asylum claim on the ground that private,
not government, actors allegedly persecuted him. And even if they had, remand
would be unnecessary because we already concluded that Oxlaj has not proven
membership in a cognizable social group.
Third, Oxlaj argues that the BIA adopted several erroneous findings of the IJ:
all three of the robbers’ faces were covered, Oxlaj filed a police report only so he
could build an asylum claim, and the psychologist’s report about Oxlaj’s mental
health was unreliable. None of these statements, even if erroneous, require us to
grant Oxlaj’s petition because the BIA and the IJ did not rely on them in concluding
that Oxlaj’s proposed social group lacks social distinction.
For the foregoing reasons, we deny Oxlaj’s petition for review.
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