Marroquin-Rivera v. Sessions

United States Court of Appeals
For the First Circuit
No. 16-1732
ROSSEMARI MARROQUÍN-RIVERA,
Petitioner,
v.
JEFFERSON B. SESSIONS III,
United States Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Kayatta, Barron,
Circuit Judges.
Mariana Baron, with whom Kevin MacMurray and MacMurray &
Associates were on brief, for petitioner.
Jamie M. Dowd, Senior Litigation Counsel, Office of
Immigration Litigation, Civil Division, United States Department
of Justice, with whom Benjamin C. Mizer, Principal Deputy Assistant
Attorney General, Civil Division, and Jessica A. Dawgert, Senior
Litigation Counsel, Office of Immigration Litigation, were on
brief, for respondent.
June 23, 2017

Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Jefferson B. Sessions III is substituted for former Attorney
General Loretta E. Lynch, as respondent.
BARRON, Circuit Judge. Rossemari Marroquín-Rivera, a
native and citizen of Guatemala, petitions for review of the Board
of Immigration Appeals' ("BIA") decision affirming the Immigration
Judge's ("IJ") denial of her application for withholding of removal
under 8 U.S.C. § 1231(b)(3)(A). After reviewing the record, we
deny her petition.
I.
Marroquín unlawfully entered the United States in August
2010. Removal proceedings against Marroquín began shortly after
she entered the country, when the Department of Homeland Security
filed a notice to appear that charged her with removability, under
8 U.S.C § 1182(a)(6)(A)(i), due to its determination that she had
entered without being admitted or paroled by an immigration
officer. Marroquín, through counsel, conceded removability, but
then applied for withholding of removal pursuant to 8 U.S.C.
§ 1231(b)(3)(A), and for protection under the Convention Against
Torture ("CAT"). A hearing was then held before an immigration
judge on Marroquín's request for withholding of removal and
protection under the CAT.
To be eligible for withholding of removal under
§ 1231(b)(3)(A), an alien must show by a "clear probability," Lopez
Perez v. Holder, 587 F.3d 456, 463 (1st Cir. 2009), that her "life
or freedom would be threatened in [the country to which she would
be removed] because of the alien's race, religion, nationality,
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membership in a particular social group, or political opinion."
8 U.S.C. § 1231(b)(3)(A).
The IJ ruled that Marroquín failed to make that showing.
The IJ concluded that Marroquín was a credible witness but that
she did not suffer any past persecution in Guatemala. The IJ
explained that Marroquín had testified that her boyfriend (the
father of Marroquín's daughter) was a police officer in Guatemala
who was killed by unknown assailants after Marroquín left
Guatemala. Marroquín also testified that her boyfriend had been
threatened and had told her that he wanted to get her out of the
country for her safety.
The IJ found, however, that Marroquín herself was never
harmed, arrested, or jailed while in Guatemala. And because the
IJ found that Marroquín had not shown that she had suffered past
persecution, the IJ concluded that in order for Marroquín to
succeed in establishing eligibility for withholding of removal,
she had to show that it was more likely than not that she would be
persecuted if she returned to Guatemala. See 8 C.F.R.
§ 1208.16(b)(2). But, the IJ found, Marroquín was merely
"speculat[ing]" as to the likelihood that "the individuals whom
she could not identify who killed her boyfriend will target her
and her daughter."
The IJ also found that "if the respondent could avoid a
future threat to her life or freedom by relocating to another part
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of Guatemala, and under all the circumstances, it would be
reasonable to expect the respondent to do so, the withholding
application must be denied." And, the IJ proceeded to rule, "I
find that the respondent could avoid a future threat by relocating
within Guatemala, and it would be reasonable to expect her to do
so rather than come to the United States."
With respect to Marroquín's request for protection under
the CAT, the IJ also ruled against Marroquín. The IJ explained
that she "ha[d] not established it is more likely than not the
Guatemalan authorities would consent, acquiesce or turn a blind
eye to any torture the respondent fears at the hands of private
actors."
Marroquín appealed the IJ's decision to the BIA, and the
BIA affirmed. The BIA explained that Marroquín "did not establish
that she will likely be harmed by criminal gangs in Guatemala based
upon an enumerated ground." In setting forth that conclusion, the
BIA found that Marroquín "has not established that her fear of
harm arising from her relationship with her now deceased boyfriend
has an objective basis following his death." And, the BIA noted,
she "did not establish that she was persecuted in the past on the
basis of the relationship, particularly where the threats were
directed at her boyfriend in an attempt to get him to cease his
investigation, without any indication that her membership in a
particular social group or political opinion were motivating
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factors for the threats." Moreover, the BIA ruled that she "did
not provide any objective evidence that gang members in Guatemala
are presently motivated to harm her because of her past
relationship with an individual who is now deceased."
With respect to Marroquín's CAT claim, the BIA ruled
that Marroquín "has not established through objectively reliable
evidence that anyone in Guatemala is presently motivated to torture
her for any reason such that her torture would be likely if she
returned." The BIA also found that Marroquín "has not established
that a public official of the Guatemalan government, having
awareness that the respondent was about to be tortured, would
breach his or her legal responsibility to intervene to prevent her
torture by criminal gangs."
II.
In petitioning for review of the BIA's decision,
Marroquín contests only the BIA's ruling affirming the denial of
her request for withholding of removal. We review the agency's
findings of fact under the "substantial evidence" standard to
determine if those findings are "supported by reasonable,
substantial, and probative evidence on the record considered as a
whole." Ordonez-Quino v. Holder, 760 F.3d 80, 87 (1st Cir. 2014)
(quoting Larios v. Holder, 608 F.3d 105, 107 (1st Cir. 2010)). We
review the agency's interpretation of law "de novo, 'subject to
the appropriate principles of administrative deference.'" Id.
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(quoting Larios, 608 F.3d at 107). "We usually review decisions
of the BIA, not the IJ. But where, as here, the BIA both adopts
the findings of the IJ and discusses some of the bases for the
IJ's decision, we have authority to review the decisions of both
the IJ and the BIA." Id. (citation omitted).
Marroquín first contends that the BIA erred by not making
any findings with respect to whether she suffered past persecution.
But, the BIA's decision incorporated the reasoning of the IJ, which
expressly found that Marroquín did not suffer past persecution in
Guatemala. Moreover, the BIA stated that Marroquín had not
suffered past persecution based on her relationship to her
boyfriend, even though Marroquín traces her claim of past
persecution only to that relationship.
Marroquín also contends that there is no basis for
finding that she did not suffer past persecution. In doing so,
Marroquín relies on what she contends was her testimony that she
"received threats against her and the child she was expecting at
the time from gangs that targeted her because she was dating a
member of the Guatemalan police." But, the BIA found, after
reviewing Marroquín's testimony, that the "threats were directed
at her boyfriend in an attempt to get him to cease his
investigation, without any indication that [Marroquín's]
membership in a particular social group or political opinion were
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motivating factors for the threats." And, the record provides
substantial evidence to support that finding.1
The petition for review is denied.
1 Marroquín was pregnant when she entered this country, and,
in November 2010, while here, she gave birth to a daughter, who is
a United States citizen. At oral argument, the panel inquired
about whether consideration had been given with respect to the
exercise of enforcement discretion in this case, in light of
Marroquín's contention that her daughter has a number of medical
conditions for which she could not receive adequate care in
Guatemala. Counsel for the government responded that Marroquín
had earlier sought prosecutorial discretion in this case, but was
denied, and did not seek it again. Counsel for the government
added that "from the state of prosecutorial discretion right now,
I don't believe that there would be any relief available at this
point."
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