Guerra-Marchorro v. Holder, Jr.

United States Court of Appeals
For the First Circuit
No. 13-1922
DANNY EMANUEL GUERRA-MARCHORRO,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Kayatta and Barron, Circuit Judges.
Randy Olen on brief for petitioner.
Ann Carroll Varnon, Office of Immigration Litigation, Civil
Division, Department of Justice, Stuart F. Delery, Assistant
Attorney General, and Nancy E. Friedman, Senior Litigation Counsel,
on brief for respondent.
July 29, 2014
BARRON, Circuit Judge. Petitioner Danny Emanuel Guerra-
Marchorro, a citizen of Guatemala, applied for asylum and
withholding of removal in November of 2009. The Immigration Judge
denied the application on a number of grounds in May of 2011, and
the Board of Immigration Appeals affirmed summarily on July 5,
2013. Guerra now petitions for review of the Board's summary
affirmance. Because we are reviewing a summary affirmance, we look
to the underlying opinion of the Immigration Judge. Herbert v.
Ashcroft, 325 F.3d 68, 71 (1st Cir. 2003). And because we conclude
that the record provides sufficient support for a key factual
finding the Immigration Judge made, we must deny the petition.
To secure relief, an asylum applicant must show he is
"unable or unwilling" to return to his home country because of
"persecution or a well-founded fear of persecution" that is "on
account of" his "race, religion, nationality, membership in a
particular social group, or political opinion." 8 U.S.C.
§ 1101(a)(42)(A). Guerra seeks to make this showing on the basis
of his testimony at his hearing before the Immigration Judge, and
we accept that testimony because the Immigration Judge found it to
be credible. Palma-Mazariegos v. Gonzales, 428 F.3d 30, 33 (1st
Cir. 2005).
The testimony shows that Guerra's parents emigrated from
Guatemala to the United States when Guerra was seven years old,
that Guerra's parents left him to live with his grandparents, and
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that in the years that followed Guerra had several frightening
encounters with the Mara Salvatrucha gang. The testimony further
shows that, over time, Guerra came to believe his grandparents
could no longer keep him safe and that he left for the United
States at the age of sixteen because he feared the gang would kill
him.
The Immigration Judge found the evidence of the gang's
threats and attacks serious but insufficient to support the
statutorily required showing of "persecution." The Immigration
Judge also ruled that the "social group" Guerra claimed to belong
to -- "abandoned Guatemalan child[ren] lacking protection from gang
violence" -- was not one the asylum statute recognized. Guerra
challenges each of those conclusions on appeal, but we need not
consider them. That is because we find sufficient record support
for a further finding by the Immigration Judge that Guerra barely
addresses in his brief -- namely, that Guerra failed to "establish
a viable nexus" between the "persecution" he identifies and the
"particular social group" to which he claims to belong.1
1
Before the Immigration Judge, Guerra also asserted
"persecution" on the basis of "political opinion," but he did not
raise that issue before the Board of Immigration Appeals, and so we
do not consider it. Ahmed v. Holder, 611 F.3d 90, 97 (1st Cir.
2010) (explaining that arguments not made before the Board "may not
make their debut in a petition for judicial review"). The same is
true of Guerra's claim for relief under the Convention Against
Torture. Kho v. Keisler, 505 F.3d 50, 52 n.1 (1st Cir. 2007)
(holding that the Court is without jurisdiction to consider a
Convention Against Torture claim that was not pursued before the
Board).
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This "nexus" requirement arises from the language in the
asylum statute that requires an applicant to show persecution "on
account of" an enumerated ground. 8 U.S.C. § 1101(a)(42)(A)
(emphasis added). To make that showing, the petitioner must
"provide sufficient evidence to forge an actual connection between
the harm and some statutorily protected ground." Hincapie v.
Gonzales, 494 F.3d 213, 218 (1st Cir. 2007). The statutory ground
need not have been the "sole motivation for the persecution," but
the petitioner must provide "'evidence from which it is reasonable
to believe that the harm was motivated [in part] by a protected
ground.'" Sompotan v. Mukasey, 533 F.3d 63, 69-70 (1st Cir. 2008)
(quoting In re S-P-, 21 I&N Dec. 486, 490 (BIA 1996)) (alteration
in original). We have explained that, in general, "[e]vents that
stem from personal disputes are . . . not enough to show the
required nexus." Sompotan, 533 F.3d at 71; see also INS v. Elias-
Zacarias, 502 U.S. 478, 483 (1992) (individual claiming asylum on
political opinion grounds must show persecution by guerrillas
"because of that political opinion, rather than because of his
refusal to fight with them").
Despite the importance of this "nexus" requirement,
Guerra does not offer a satisfactory explanation of how he meets
it. He does describe his reasons for fearing what the gang would
do to him if he were to return to Guatemala. But he does not,
either in his brief or in his testimony, directly state that the
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gang has targeted him, or will target him, because of his claimed
status as an "abandoned" child. Rather, to the extent Guerra's
testimony addresses the gang's reasons for targeting him, it
identifies motivations unrelated to that claimed status.
For example, Guerra claims at one point that the gang
targeted him "because I knew [the gang members] and because I was
dating the girlfriend of one of the gang members," but those are
motivations unconnected to his purported status as an abandoned
child. The same is true of Guerra's statements that the gang
targeted him because he opposed the gang and refused to join it.
And while Guerra recounts three specific and serious incidents in
which gang members threatened or attacked him, his testimony does
not show the gang members even knew his parents had emigrated.
Instead, Guerra testified that these incidents convinced him that
if he stayed in Guatemala, the gang members might kill him,
"[b]ecause over there, the gangs, if you know they're gang members
and you're not part of them, they kill you" -- a motivation for the
gang's action that is again not tied to Guerra belonging to the
claimed social group.
In light of this record, we have no basis to disturb the
Immigration Judge's nexus finding, which is one of fact and thus
must be reviewed under the "highly deferential" substantial
evidence standard. Hincapie, 494 F.3d at 218. Applying that
standard, we cannot overturn the finding because nothing in "the
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record . . . compels the conclusion that" the alleged persecution
is "because of" Guerra's membership in a claimed particular social
group, rather than for some other reason. Elias-Zacarias, 502 U.S.
at 483. Instead, the record shows that, at most, Guerra presented
"no evidence other than his own speculation" to forge the
statutorily required "link." Khalil v. Ashcroft, 337 F.3d 50, 55
(1st Cir. 2003); see also Sugiarto v. Holder, 586 F.3d 90, 95-96
(1st Cir. 2009) (holding that substantial evidence supported the
BIA's finding of no nexus where record contained no evidence
supporting petitioner's stated belief she had been targeted because
of her religion).
This same analysis requires that we also deny Guerra's
petition to review the Board's summary affirmance of the denial of
his request for withholding of removal. That form of relief is
available, in some circumstances, when an application for asylum
would be barred. Compare 8 U.S.C. § 1231(b)(3)(A) (requirements
for withholding of removal), with id. § 1158(a)(2) (exceptions to
asylum eligibility). But applicants for such relief must still
show that their "life or freedom would be threatened . . . because
of" their connection to the "social group" to which they claim to
belong. 8 U.S.C. § 1231(b)(3)(A). Thus, here, too, the
Immigration Judge's factual finding about the lack of a nexus binds
us.
Accordingly, we deny the petition for review.
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