Francisco Gomez-Ajanel v. Merrick B. Garland ( 2023 )

United States Court of Appeals
For the Eighth Circuit
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No. 23-2293
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Francisco Gomez-Ajanel
lllllllllllllllllllllPetitioner
v.
Merrick B. Garland, 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 6, 2023
Filed: December 13, 2023
[Unpublished]
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Before GRUENDER, BENTON, and KELLY, Circuit Judges.
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PER CURIAM.
Guatemalan citizen Francisco Gomez-Ajanel petitions for review of an order
of the Board of Immigration Appeals, which denied his request to terminate the
proceedings based on Pereira v. Sessions, 138 S. Ct. 2105 (2018), and affirmed an
immigration judge’s denial of asylum, withholding of removal, and protection under
the Convention Against Torture (CAT).
After careful review, we conclude that this court’s precedent forecloses
Gomez-Ajanel’s challenge to the immigration court’s jurisdiction over his removal
proceedings based on a purportedly defective Notice to Appear. See Ali v. Barr, 924
F.3d 983, 985-86 (8th Cir. 2019); see also Tino v. Garland, 13 F.4th 708, 709 n.2 (8th
Cir. 2021) (per curiam). To the extent Gomez-Ajanel asks this court to compel the
agency to exercise prosecutorial discretion, we may not consider his request. See 8
U.S.C. § 1252(g); Hanggi v. Holder, 563 F.3d 378, 383 (8th Cir. 2009).
We also conclude that substantial evidence supports the denial of asylum and
withholding of removal. See Cano v. Barr, 956 F.3d 1034, 1038 (8th Cir. 2020)
(explaining the standard of review). Assuming Gomez-Ajanel’s Quiche tribal group
was a cognizable particular social group, the record does not compel the conclusion
that his Quiche identity was or will be at least one central reason for his persecution.
See 8 U.S.C. § 1158(b)(1)(B)(i) (articulating the one-central-reason standard);
Silvestre-Giron v. Barr, 949 F.3d 1114, 1119 & n.3 (8th Cir. 2020) (reviewing for
substantial evidence the one-central-reason nexus determination); see also Tino, 13
F.4th at 710. Likewise, the record does not compel the conclusion that an imputed
anti-gang political opinion was or will be one central reason for Gomez-Ajanel’s
persecution, as he offered no evidence beyond his refusal to join a gang. See Aguilar
v. Garland, 60 F.4th 401, 405-06 (8th Cir. 2023). Furthermore, this court has
repeatedly held that resistance to gang membership does not present a cognizable
particular social group, and Gomez-Ajanel has offered no evidence or argument that
would warrant a different result in his case. See, e.g., Tojin-Tiu v. Garland, 33 F.4th
1020, 1024 (8th Cir. 2022). Because the failure to establish a nexus to a protected
statutory ground disposes of Gomez-Ajanel’s asylum and withholding-of-removal
claims, we do not need to address his other arguments on those claims. See
Uriostegui-Teran v. Garland, 72 F.4th 852, 856 (8th Cir. 2023); De la Rosa v. Barr,
943 F.3d 1171, 1174 (8th Cir. 2019).
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Finally, we conclude that substantial evidence supports the denial of CAT
protection because Gomez-Ajanel failed to show that he more likely than not would
be tortured by, at the instigation of, or with the consent or acquiescence of the
Guatemalan government. See Silvestre-Giron, 949 F.3d at 1119-20 (explaining the
burden of proof); Martin Martin v. Barr, 916 F.3d 1141, 1145 (8th Cir. 2019).
The petition for review is denied. See 8th Cir. R. 47B.
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