Santos Garcia v. Garland

United States Court of Appeals
For the First Circuit
No. 22-1535
MARCO DANILO SANTOS GARCIA,
Petitioner,
v.
MERRICK B. GARLAND, United States Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Gelpí, Lynch, and Thompson,
Circuit Judges.
Daniel T. Welch, with whom Kevin P. MacMurray, Kristian R.
Meyer, and MacMurray & Associates LLC were on brief, for
petitioner.
Joseph A. O'Connell, Attorney, Department of Justice, Office
of Immigration Litigation, with whom Brian M. Boynton, Principal
Deputy Assistant Attorney General, and Cindy S. Ferrier, Assistant
Director, were on brief, for respondent.
April 28, 2023
LYNCH, Circuit Judge. Marco Danilo Santos Garcia
("Santos") seeks review of the Board of Immigration Appeals ("BIA")
decision of June 21, 2022, affirming the immigration judge's ("IJ")
denial of his applications for asylum and withholding of removal
under sections 208(b)(1)(A) and 241(b)(3)(A) of the Immigration
and Nationality Act ("INA"), 8 U.S.C. §§ 1158(b)(1)(A),
1231(b)(3)(A). The BIA held that there was no error in the IJ's
holdings that: (1) Santos did not meet his burden to show past
persecution because the threats Santos faced in Guatemala "were
not so menacing as to cause significant actual suffering or harm,"
(2) Santos "did not establish that the mistreatment he endured
ha[d] the requisite nexus to a statutorily protected ground," and
(3) Santos "did not show a well-founded fear of future persecution
on account of a statutorily protected ground." Because substantial
evidence supports the BIA's determination and the BIA committed no
errors of law in that ruling, we deny Santos's petition for review.
For the first time on appeal, Santos also purports to raise an
argument based on a particular social group not made to the BIA,
and we dismiss that unexhausted claim for lack of jurisdiction.
I.
Santos, a Guatemalan citizen, crossed the border from
Mexico into the United States on or about April 26, 2016. On July
14, 2016, the Department of Homeland Security vacated its previous
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Expedited Removal Order1 and issued Santos a Notice to Appear in
removal proceedings, charging him with being subject to removal
under 8 U.S.C. § 1182(a)(6)(A)(i). Santos conceded that he was
subject to removal and admitted the factual allegations in the
Notice to Appear. On March 7, 2017, Santos filed applications for
asylum, withholding of removal, and protection under the
Convention Against Torture.
II.
We describe in general terms Santos's testimony to the
IJ at the June 12, 2019, merits hearing concerning his application
for relief and the arguments in his pre-hearing brief.
Santos testified that he "fled from [Guatemala] because
[his] life was in danger [due to] people threatening [him] --
people [who] gave [him] death threats." Santos claimed that when
he was 23 years old in his hometown of 800 people, members of the
Renewed Democratic Liberty ("Lider") Party threatened him on three
occasions in March and April 2016. He alleged these threats were
due to his support of the FCN political party during the 2015
1 On May 1, 2016, the Department of Homeland Security
issued Santos an Expedited Removal Order pursuant to 8 U.S.C.
§ 1225(b)(1). On July 5, 2016, Santos completed a credible-fear
interview with an Asylum Officer, in which he stated that Renewed
Democratic Liberty ("Lider") Party supporters in Guatemala had
threatened him and demanded money. The Asylum Officer concluded
that Santos had a credible fear of persecution or torture in
Guatemala and referred his case to Immigration Court.
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presidential election.2 His support amounted to distribution of
FCN pamphlets from his food truck, attending FCN meetings,
informing members of the community about FCN campaign ideas, and
general undefined support. The FCN candidate won the 2015
presidential election. And in February 2016, Guatemala's Supreme
Electoral Court cancelled the Lider Party for campaign law
violations.
In his pre-hearing brief, Santos asserted that, after
the dissolution of the Lider Party, around March 19, 2016, an
undefined number of Lider Party members, some armed, arrived at
his house and demanded 40,000 quetzales (approximately 5,047 USD).
Santos stated that "[t]hese men blamed [him], as a supporter of
the FCN, for the state of their party and defeat of their electoral
candidate." They threatened to kill Santos in 20 days if he did
not pay. He did not pay that day.
Santos asserted that around March 31, 2016, one Lider
Party supporter dragged him to an alley where other Lider
supporters were. They held him at gunpoint; asked again for that
sum of money; and when he did not have it, kicked his legs and
stomach, and left him. Santos testified that his injuries from
this incident "w[ere]n't anything serious" and were not visible,
and that he "did not" go to the hospital after the attack. Santos
2 FCN stands for "Frente de Convergencia Nacional," which
translates to "National Convergence Front."
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then went to the police. He testified that the police officer
refused to take his report because he "didn't have any proof or
evidence, and then [the police officer] asked [him] too if he was
conscious of what [he] was doing, that [he] was making allegations
against the . . . L[ider] Party." In Santos's earlier declaration,
however, he did not suggest that the police refused to take his
report because it was against the Lider Party; he stated only that
"because [he] had zero evidence [he] could not file a report" and
noted that the town mayor at the time was a Lider Party member.
Santos testified to a third encounter around April 8,
2016, when three Lider Party supporters approached Santos in a
public marketplace. He claimed one drew a weapon and threatened
to kill him if he ever contacted the police again or if he failed
to comply with their money demand. Santos returned to his home.
When asked by the government's attorney why he did not go to
another area of Guatemala, he replied, "I don't have anybody else
in Guatemala." He testified that he was not seriously injured in
the incidents in March-April 2016; that he never had to seek
medical attention; and that Lider Party supporters targeted him
because "they had lost a lot of money because their political party
lost" so "they wanted to recover this lost money." Further, when
the government attorney asked Santos whether "anyone told [him]
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that the people [who] threatened [him were] currently looking for
[him] in Guatemala," Santos responded, "No."3
The IJ concluded at the hearing that, though Santos was
credible, he did
not me[e]t the very high burden needed for
asylum. He . . . never had to seek medical
treatment. There was a revenge aspect in this
as well, and money. I'm not sure he met the
nexus even assuming persecution and the party
has been dissolved so I find any fear of future
persecution is not on account of political
opinion. So I will have to deny the
application today under the law.
The IJ issued a written decision denying relief from
removal on July 23, 2019. In support of denial of relief, the IJ
held that the harm Santos suffered at the hands of Lider Party
members in March-April 2016 did "not rise to the level of past
persecution" and that their threats "were not 'so menacing as to
cause significant actual suffering or harm.'" (Quoting Vilela v.
Holder, 620 F.3d 25, 29 (1st Cir. 2010)). Santos "was able to
walk away from each encounter unharmed" and "did not require
medical treatment."
The IJ also found that "the evidence [did] not establish
that [Santos] was targeted on account of his political opinion";
"rather[,] he was targeted in an attempt to extort money." The IJ
3 Santos also conceded that he was arrested for driving
under the influence of alcohol in August 2018, that there was an
open container in the vehicle when he was stopped by police, and
that he could not recall how much alcohol he had consumed.
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emphasized that the Lider Party had been dissolved by March 2016,
that Santos's FCN Party was in power during the relevant period,
and that "retribution over personal matters is not a basis for
asylum under" the INA.
Third, the IJ found that Santos "failed to establish
that his life or freedom would be threatened in the future in
Guatemala on account of a protected ground" because the Lider Party
had since been dissolved, Santos's FCN Party won the 2015 election,
and Santos only assumed without proof that people were looking for
him in Guatemala.4
In his BIA appeal, Santos maintained that the IJ erred
in denying his asylum claim because "he faced past persecution as
he was threatened by armed men on three separate occasions, and on
one occasion he was also physically assaulted"; "he suffered
persecution on account of his political opinion and membership in
the FCN political party"; and "he established that he has a well-
founded fear of future persecution as the men that attacked him
4 The IJ also concluded that the record did not support
the conclusion that "it [was] more likely than not that [Santos]
would be singled out and tortured by, or with the acquiescence of,
the government of Guatemala, either by their active participation
in torture, or by their willful blindness to the acts of private
individuals." On appeal, the BIA concluded that Santos waived his
Convention Against Torture ("CAT") argument because he did not
meaningfully challenge the IJ's determination that he was not
eligible for CAT protection. Santos does not develop any challenge
to the IJ's or BIA's CAT determinations in his brief, so that claim
has been waived. See Sanchez-Vasquez v. Garland, 994 F.3d 40, 45
(1st Cir. 2021).
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continue to reside in Guatemala and the FCN political party has
now been accused of corrupt practices."
The BIA issued a decision on June 21, 2022, affirming
the IJ's findings that Santos "did not meet his burden of proof
for asylum or withholding of removal." The BIA agreed with the IJ
that (1) "these extortion attempts, though reprehensible, do not
constitute persecution" because Santos "walked away from each
encounter unharmed and never required medical treatment"; (2)
Santos "did not establish that the mistreatment he endured ha[d]
the requisite nexus to a statutorily protected ground" because the
IJ "did not clearly err in finding that the armed individuals'
motivation was extorting [Santos] for monetary gain, and not
because of his political opinion"; and (3) Santos "did not show a
well-founded fear of future persecution on account of a statutorily
protected ground" because Santos "did not establish a continuing
threat" given that the Lider Party had been dissolved, Santos's
party had won the 2015 election, and Santos was "unaware of anyone
continuing to look for him in Guatemala."
III.
A.
We start with Santos's unexhausted claim and dismiss
that claim for lack of jurisdiction. On appeal, Santos argues
that he faced "past persecution on account of his membership as an
Indigenous Guatemalan male of Mam descent." Santos did advert to
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his indigenous status in his pre-hearing brief before the IJ, and
he claimed that he "risk[s] harm and discrimination on account of
[his] indigenous ethnicity" in his affidavit dated May 6, 2019, in
support of his application for asylum and withholding of removal.
But Santos offered no testimony on his indigenous identity before
the IJ. The IJ, accordingly, made no findings on it. Further,
Santos failed to raise the issue with the BIA. Thus, Santos has
failed to exhaust his administrative remedies, and this court is
"statutorily precluded from reviewing his claim in this regard."
8 U.S.C. § 1252(d)(1); see also Ravindran v. INS, 976 F.2d 754,
761 (1st Cir. 1992) ("Because he could have, but did not, raise
this issue below, petitioner failed to exhaust his administrative
remedies and thus waived his right to be heard on the claim of
persecution on account of membership in a particular social
group."); Fabian-Soriano v. Barr, 925 F.3d 552, 557-58 (1st Cir.
2019) (rejecting petitioner's argument that the IJ committed legal
error because petitioner had not first exhausted administrative
remedies).
B.
As to Santos's preserved challenge to the BIA decision,
we review de novo legal and constitutional issues, "but with some
deference to the agency's reasonable interpretation of statutes
and regulations that fall within its sphere of authority." Chen v.
Holder, 703 F.3d 17, 21 (1st Cir. 2012). We review "the BIA's
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factual findings for substantial evidence." Dorce v. Garland, 50
F.4th 207, 212 (1st Cir. 2022). The substantial evidence standard
"requires us to accept the agency's factual findings . . . unless
the record is such as to compel a reasonable factfinder to reach
a contrary conclusion." Id. (omission in original) (quoting
Mazariegos-Paiz v. Holder, 734 F.3d 57, 64 (1st Cir. 2013)). We
reverse only if "the evidence points unerringly in the opposite
direction." Ruiz-Escobar v. Sessions, 881 F.3d 252, 259 (1st Cir.
2018) (internal quotation marks omitted) (quoting Segran v.
Mukasey, 511 F.3d 1, 5 (1st Cir. 2007)). "That the record supports
a conclusion contrary to that reached by the BIA is not enough to
warrant upsetting the BIA's view of the matter; for that to occur,
the record must compel the contrary conclusion." Hincapie v.
Gonzales, 494 F.3d 213, 218 (1st Cir. 2007).
Here we deny Santos's petition because the BIA found on
substantial evidence that Santos had not proven that he suffered
past persecution due to his political opinion or that he would
suffer future persecution.
Santos argues that the BIA erred in its finding as to
past persecution. He argues that "he experienced past persecution
in the form of extortion, credible death threats, and physical
assault" due to his membership in the FCN Party. The record does
not compel the conclusion that the IJ and BIA were wrong.
Persecution goes beyond "unpleasantness, harassment, and even
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basic suffering." Nelson v. INS, 232 F.3d 258, 263 (1st Cir.
2000).
It is true that Santos testified that he was threatened
with death three times during the course of the attempted
extortion. "[C]redible verbal death threats" can amount to
persecution if they are "so menacing as to cause significant actual
suffering or harm." Lobo v. Holder, 684 F.3d 11, 18 (1st Cir.
2012) (quoting Vilela, 620 F.3d at 29); see also Sok v. Mukasey,
526 F.3d 48, 54 (1st Cir. 2008). The IJ did find Santos credible
as to receiving death threats. But there is no finding that those
threats were "credible" threats of death as opposed to threats
intended to frighten him into paying, especially given the lack of
severity of the one assault. Further, Santos has never provided
specific details about the "immediate impact, if any, that these
threats had on him" beyond his decision to come to the United
States. Rodriguez v. Lynch, 654 F. App'x 498, 500 (1st Cir. 2016).
Further, this court has affirmed the BIA's finding of no
past persecution on facts more egregious than these. In Chen v.
Lynch, 814 F.3d 40 (1st Cir. 2016), this court upheld the BIA's
determination of no past persecution even though the petitioner
"was beaten and subsequently taken to the police station where he
was placed in custody, interrogated, further assaulted, and
threatened with forced sterilization." See id. at 42-43. The
petitioner's injuries in Chen, as here, "did not exceed bruising
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and did not require hospitalization," and though the latter factor
is not dispositive, it "bears on the 'nature and extent' of [the]
injuries and is certainly 'relevant to the ultimate
determination'" of past persecution. Id. at 46 (quoting Vasili v.
Holder, 732 F.3d 83, 89 (1st Cir. 2013)).
Santos argues that the IJ and the BIA "failed to consider
a mixed motive analysis regarding the motivation of [Santos]'s
persecutors" to target him due to his "membership in the FCN
political party." Not so. The IJ stated that Santos must
establish that the protected ground is "at least one central
reason" for the persecution. Substantial evidence easily supports
the determination that Santos did not show that his political
affiliation was "one central reason" for the harm he experienced.
8 U.S.C. § 1158(b)(1)(B)(i). Santos joined the FCN Party in 2015.
At most he "helped organize events for political speakers,
distribute[d] pamphlets at his food stand, and helped organize
fundraising events by participating in soccer tournaments."
Santos's party was in fact victorious. As the IJ found, what was
involved was an attempt, not motivated by his FCN affiliation, to
extort money from Santos and was nothing more than garden variety
extortion.
Santos's final argument is (1) that he was entitled to
a presumption of future persecution and (2) that he established
"an independent well-founded fear of future persecution" based on
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his FCN membership and country conditions in Guatemala. Because
Santos has not established that he suffered past persecution based
on his political opinion, he is not entitled to the presumption of
future persecution. See Chen, 814 F.3d at 45. Nor does the record
show any well-founded fear of future persecution. Santos testified
that no one has told him that the people who threatened him are
currently looking for him in Guatemala. The Lider Party is no
longer active and has not been since 2016, and the FCN Party won
the 2015 presidential election. Santos has provided no support
for his contention that he might be harmed because the FCN Party
has been accused of corruption. Substantial evidence supports the
agency's finding regarding the police's lack of investigation, and
Santos merely surmises that the police's inaction was motivated by
fear of or collaboration with the Lider Party.
Santos's petition for review is dismissed in part and
denied in part.
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