Ruben Cambara-Cambara v. Loretta E. Lynch ( 2016 )

United States Court of Appeals
For the Eighth Circuit
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No. 15-1916
No. 15-1917
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Ruben E. Cambara-Cambara; Mario Fernando Cambara-Cambara
lllllllllllllllllllllPetitioners
v.
Loretta E. Lynch, Attorney General of the United States
lllllllllllllllllllllRespondent
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Petitions for Review of Orders of the
Board of Immigration Appeals
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Submitted: April 13, 2016
Filed: September 13, 2016
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Before RILEY, Chief Judge, LOKEN and SHEPHERD, Circuit Judges.
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LOKEN, Circuit Judge.
Ruben and Mario Cambara-Cambara (“the Cambaras”) are brothers who left
their native country of Guatemala and entered the United States without inspection
in February 2001 and August 2004, respectively. They filed separate applications for
asylum, withholding of removal to Guatemala, and relief under the Convention
Against Torture (“CAT”) in 2009. The immigration judge (“IJ”) denied the
applications for asylum as untimely and ruled that the brothers did not prove they
were eligible for asylum, withholding of removal, or CAT relief. The Board of
Immigration Appeals (“BIA”) affirmed in separate opinions. We consolidated and
now deny their separate petitions for review.
“To be eligible for withholding of removal to a particular country, an alien
must show a ‘clear probability’ that he would suffer persecution on account of a
protected ground such as political opinion or membership in a social group.” Miah
v. Mukasey, 519 F.3d 784, 787 (8th Cir. 2008), citing 8 U.S.C. §§ 1101(a)(42)(A),
1231(b)(3)(A), and Alemu v. Gonzalez, 403 F.3d 572, 576 (8th Cir. 2005). The
Cambaras testified at their March 2012 hearings that they were likely to suffer
persecution if they returned to Guatemala due to their membership in two particular
social groups: the Cambara family and educated Guatemalan landowners and
farmers.1
Mario testified that Maras 18 gang members targeted various members of his
family in Guatemala for extortionate demands because they were wealthy landowners.
In 1995, the gang made death threats in demanding money from his uncle; when his
uncle stopped making payments, they tried to burn his house down with his family
inside and then shot and stabbed him to death. Three months later, the gang made
death threats to another uncle and attacked him when he did not pay their extortion
demand, causing physical and psychological trauma. Gang members extorted money
from his father for many years by threatening him and his family, and attacked his
father with machetes when he stopped paying in December 2008. Ruben testified
that, in 2009, gang members threatened a Cambara cousin’s family when he could no
longer make the demanded payments, then shot and killed his son shortly thereafter.
1
On appeal to the BIA, they abandoned an additional claim that former
members of the Guatemalan army are a particular social group.
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Mario testified that the family reported these incidents to the police, but the
responsible parties have not been captured. Ruben testified that he agreed with
Mario’s testimony and believed his family was extorted because of their property.
Both Mario and Ruben testified that they were never personally harmed or
threatened by Maras 18 gang members. Two of Mario’s daughters still live in his
hometown with his wife’s mother and have not been threatened. One of Ruben’s
daughters lives in Guatemala, and he sent two American-born daughters to Guatemala
for approximately one month to meet his grandmother. The Cambaras have another
brother who is an officer in Guatemala’s National Civil Police Force.
The IJ found that both asylum applications were untimely because they were
filed more than a year after the Cambaras entered the United States, and neither
brother established changed or extraordinary circumstances that excused his untimely
filing. Alternatively, the IJ concluded that the asylum applications, if timely, were
denied because, although their testimony was credible, neither brother proved that (1)
he had suffered past persecution, (2) he was a member of a cognizable social group,
and (3) he would be persecuted in the future on account of his membership in that
social group. The IJ concluded there was evidence the family may have been targeted
based on wealth, but perceived wealth alone is not a cognizable social group. The IJ
further concluded that, as the Cambaras did not meet the standard for asylum, they did
not meet the higher standards for withholding of removal or CAT relief.
The BIA affirmed the IJ’s opinions and dismissed the Cambaras’ appeals. The
BIA rejected their claim that the December 2008 attack on their father constituted
changed or extraordinary circumstances because the brothers testified to ongoing
threats and harm to family members before they departed Guatemala. The BIA
alternatively concluded that the Cambaras were not eligible for asylum because they
failed to prove past persecution or a well-founded fear of future persecution on
account of their membership in particular social groups. The brothers admitted they
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had never been threatened or harmed, and the BIA found there was no “nexus”
between their feared future harm and their status as members of the Cambara family.
“Although members of the Cambara family have been targeted for harm and
mistreatment by the gangs in Guatemala, the [brothers have] not established that
[their] family members have been specifically targeted due to their familial
relationship, particularly where some members of the family have not received threats
or been harmed.” The BIA also ruled that “educated landowners and farmers” is not
a cognizable social group, and that the Cambaras failed to satisfy the higher burden
for withholding of removal, and did not prove they were eligible for CAT relief. We
review both the BIA and IJ decisions “[b]ecause the BIA essentially adopted the IJ’s
opinion while adding some of its own reasoning.” Krasnopivtsev v. Ashcroft, 382
F.3d 832, 837 (8th Cir. 2004).
A. Asylum. An asylum applicant must “demonstrate[] by clear and convincing
evidence that the application has been filed within 1 year after the date of the alien’s
arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B). An untimely application may
be considered if the alien “demonstrates to the satisfaction of the Attorney General
either . . . changed circumstances which materially affect the applicant’s eligibility
. . . or extraordinary circumstances” that justify the late application. § 1158(a)(2)(D).
The Cambaras concede that they filed their application more than a year after they
arrived in the United States, but they contend that the attack on their father in 2008
constituted changed circumstances.
“No court shall have jurisdiction to review any determination of the Attorney
General” as to whether changed or extraordinary circumstances warrant consideration
of an untimely asylum application. 8 U.S.C. § 1158(a)(3). Thus, we do not have
“jurisdiction to review a determination that an application for asylum is untimely,
except when the petition seeks review of constitutional claims or questions of law.”
Bin Jing Chen v. Holder, 776 F.3d 597, 601 (8th Cir. 2015) (quotation omitted); see
8 U.S.C. § 1252(a)(2)(D). The BIA’s “factual findings or discretionary judgments . . .
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are insulated from judicial review,” including whether the applicant has demonstrated
changed or extraordinary circumstances. Purwantono v. Gonzales, 498 F.3d 822, 824
(8th Cir. 2007) (extraordinary circumstances); see Juarez Chilel v. Holder, 779 F.3d
850, 854 (8th Cir. 2015) (changed circumstances).
The Cambaras argue the 2008 attack on their father qualifies as changed
circumstances because it “provided further evidence of the type of persecution
already suffered.” However, this is not a constitutional claim and it does not raise a
question of law. Rather, as in Purwantono, “[t]hese contentions amount to a quarrel
with the BIA’s discretionary factual determination,” so we lack jurisdiction to review
the BIA’s determination that the asylum claims are time-barred. 498 F.3d at 824.
B. Withholding of Removal. We have jurisdiction to review the BIA’s denial
of withholding of removal. The BIA held that the Cambaras have “not demonstrated
that [they] suffered past persecution or [have] a well-founded fear of future
persecution on account of [their] membership in a particular social group consisting
of members of the Cambara family.” The BIA further ruled that “educated
landowners and farmers” is not a cognizable particular social group. We review the
BIA’s determinations “under the deferential substantial evidence standard.” Miah,
519 F.3d at 787. To warrant judicial relief, the Cambaras must show “that the
evidence [they] presented was so compelling that no reasonable factfinder could fail
to find the requisite fear of persecution.” Id., quoting INS v. Elias-Zacarias, 502 U.S.
478, 483-84 (1992).
The Cambaras argue that their credible evidence of extortionate demands and
violent attacks by criminal gangs against members of their family for more than
twenty years established that they suffered past persecution and have a well-founded
fear of future persecution on account of their membership in a particular social group
consisting of “members of the Cambara family, a family of educated landowners and
farmers.” The BIA assumed that members of the Cambara family constitute a
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particular social group, see Bernal-Rendon v. Gonzales, 419 F.3d 877, 881 (8th Cir.
2005), but found that the Cambara brothers failed to establish a nexus between this
social group membership and the alleged persecution, that is, proof that “family
members have been specifically targeted due to their familial relationship.”
On appeal, the Cambaras argue that the “clear pattern of targeting [family
members] compels the conclusion that persecution was ‘on account of’ their
membership in the Cambara family.” But they provided no proof that the criminal
gangs targeted members of the family because of family relationships, as opposed to
the fact that, as prosperous businessmen, they were obvious targets for extortionate
demands. “The [applicant for asylum or withholding of removal] bears the burden
of showing that his membership in a particular social group was or will be a central
reason for his persecution.” Matter of W-G-R-, 26 I & N Dec. 208, 224 (BIA 2012),
citing 8 U.S.C. § 1158(b)(1)(B)(i). On this record, substantial evidence supports a
finding that the Cambara family “is no different from any other [Guatemalan] family
that has experienced gang violence.” Constanza v. Holder, 647 F.3d 749, 754 (8th
Cir. 2011). The Cambaras’ attempt to limit the alleged social group to “members of
. . . a family of educated landowners and farmers” does not overcome their failure to
prove the required nexus. As we said in Davila-Mejia v. Mukasey, 531 F.3d 624, 629
(8th Cir. 2008), “[t]here is no record evidence that petitioners’ mistreatment [here, by
Maras 18 gang members] and being robbed and extorted are associated with
petitioners being members of a social group identifiable as ‘family business owners.’”
Finally, that the Cambaras each left daughters in Guatemala, and Ruben sent two
others back to visit, undermines the claim that they fear family members will be
targeted on account of family status. See Bernal-Rendon, 419 F.3d at 881.
C. CAT Relief. An applicant is eligible for CAT relief if he proves that “it is
more likely than not that he . . . would be tortured if removed to the proposed country
of removal.” 8 C.F.R. § 1208.16(c)(2). The torture must be “inflicted by or at the
instigation of or with the consent or acquiescence of a public official or other person
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acting in an official capacity.” § 1208.18(a)(1). The BIA found that the Maras 18
gang in Guatemala was not acting with the “consent or acquiescence of a public
official.” Substantial record evidence supports this determination.
The Cambaras argue that the police force in Guatemala is powerless to stop the
gangs. “A government does not acquiesce in the torture of its citizens merely because
it is aware of the 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.” Mouawad v. Gonzales, 485 F.3d 405, 413 (8th Cir. 2007) (quotations and
citation omitted). The Cambaras presented strong evidence, including a statement by
their brother in the National Civil Police Force, that the police investigated reports
of violence against the Cambara family but did not capture any perpetrators, at least
in part because the gangs “have better weapons than the National Civil Police and the
topographic area they hide in favors them.” However, that a police force struggles
to control gang activity “is insufficient to compel a finding of willful blindness
toward the torture of citizens by third parties,” or a finding of government
acquiescence in their criminal activities. Menjivar v. Gonzales, 416 F.3d 918, 923
(8th Cir. 2005).
We deny Mario Cambara-Cambara’s and Ruben Cambara-Cambara’s petitions
for judicial review.
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