Guevara De Vilorio v. Lynch

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 16-1154
SILVIA VERÓNICA GUEVARA-DE VILORIO,
Petitioner,
v.
LORETTA E. LYNCH,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Lipez, and Thompson,
Circuit Judges.
Jason Panzarino and the Law Office of Johanna Herrero, on
brief for petitioner.
Zoe J. Heller, Trial Attorney, Office of Immigration
Litigation, U.S. Department of Justice, Benjamin C. Mizer,
Principal Deputy Assistant Attorney General, Civil Division, and
Paul Fiorino, Senior Litigation Counsel, Office of Immigration
Litigation, on brief for respondent.
January 9, 2017
TORRUELLA, Circuit Judge. Silvia Verónica Guevara-de
Vilorio ("Guevara") petitions for review of a decision by the Board
of Immigration Appeals ("BIA"), which denied her application for
asylum and withholding of removal under §§ 208 and 241(b)(3) of
the Immigration and Naturalization Act, 8 U.S.C. §§ 1158,
1231(b)(3), and for protection under the Convention Against
Torture ("CAT"), 8 C.F.R. §§ 1208.16-18. Because Guevara has
failed to establish persecution or a well-founded fear of
persecution, and has likewise failed to establish that she is a
member of a protected group, we deny her petition for review.
I. Background
Guevara was born in El Salvador on March 8, 1981, and
entered the United States in November 2005. After she was charged
with removability on September 14, 2006, she filed her asylum
application, and also requested withholding of removal and CAT
protection. She has resided in Massachusetts for over a decade,
and has no criminal history or criminal arrests. She has three
U.S. citizen children.
Before an Immigration Judge ("IJ"), Guevara testified
that while she, her husband, and their two children were living in
El Salvador, her husband Manuel Vilorio ("Vilorio") had run a
successful trucking business.1 Members of a powerful gang demanded
1 Vilorio had entered the United States in 1993 and applied for
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weekly payments from Vilorio and threatened him and his family
with death if he did not pay the extortion demands. Vilorio told
Guevara that on one delivery, he had been followed by a car filled
with gang members wielding guns, and on another occasion gang
members had beaten him. Her husband never paid the extortion
demands, and, fearing harm, came to the United States in April
2003. After Vilorio left the country, gang members continued to
frequent Guevara's home, demanding to know the whereabouts of her
husband and leaving notes demanding money and threatening her with
harm if she did not comply, although she was never physically
harmed. Guevara testified that she cannot return to El Salvador
because the gangs are still powerful and because she would not be
able to support herself there.
Guevara was initially a derivative on her husband's
asylum application. Vilorio separated from the family in 2010.
Still, the couple were scheduled to attend an immigration court
hearing on December 11, 2011. After Vilorio failed to attend this
hearing, the judge ordered his removal in absentia. Guevara's
case was severed from her husband's and she filed her own
asylum in 1994, claiming that he and his family had been persecuted
by guerrillas and ex-guerrillas. Vilorio returned to El Salvador
in 1998, and married Guevara in 1999. He returned to the United
States in 2003, due to threats from gangs in El Salvador.
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application for asylum and withholding of removal on February 6,
2013.
On September 19, 2014, Guevara attended a hearing before
the IJ, at the end of which the IJ issued an oral decision denying
Guevara's asylum, withholding of removal, and CAT protection
applications, and finding that she was not eligible for voluntary
removal. The IJ found Guevara's testimony not credible based on
discrepancies between statements made in Vilorio's asylum
application -- by then already two decades old -- and Guevara's
testimony. Specifically, the IJ noted that Vilorio had made no
mention of a trucking business, but rather had indicated that he
had been a cook; Vilorio had stated that he had left El Salvador
because he had been threatened and recruited by the guerrillas;
and Vilorio had stated that he had never been threatened or
physically harmed. The IJ further noted that though Guevara
testified that the gang members continued to extort money from her
after Vilorio had left the country, she made no such claim in her
application -- and the IJ did not find convincing her explanation
that she forgot to put it down. The IJ did acknowledge that
Vilorio stated that he had once been followed by gang members
presumably seeking to steal his car or money.
Alternatively, the IJ found that even if her testimony
had been credible, Guevara had failed to demonstrate that she
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either had been a victim of past persecution or that she had a
well-founded fear of future persecution based on a statutorily
protected ground. He found that the threats she received were not
immediate or menacing enough to rise to the level of persecution.
To the extent that Guevara fears extortion and harm by gangs if
she were to return, the IJ found that such acts do not constitute
persecution on account of a protected ground. Though Guevara
claimed that she would be harmed on account of her membership in
a particular social group made up of individuals perceived as
wealthy, the IJ ruled that the group was not sufficiently
particular or socially distinct. Even assuming the cognizability
of such a group, the IJ found that Guevara had not demonstrated
the required nexus between the harm she fears and her status as
the wife of a man with a lucrative business. Because she failed
to demonstrate sufficient proof for her asylum application, the IJ
found that she necessarily failed to meet the higher burden of
proof required for withholding of removal, and that she had failed
to establish the necessary grounds for CAT protection. Thus, the
IJ denied her relief and protection applications. Guevara
appealed to the BIA on October 14, 2014, but did not file an appeal
brief.
On January 15, 2016, the BIA affirmed the IJ's denial of
asylum. Without addressing the IJ's adverse credibility finding,
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the BIA found that even if she had testified credibly, Guevara had
failed to establish past persecution or an objectively reasonable
fear of future persecution on a protected ground. The threats
were neither so immediate nor so menacing as to constitute
persecution, and the gang's extortion was criminal but not
persecutory. Similarly, the BIA found that fear of gang violence
and extortion is not "on account of" a protected ground. The BIA
found no evidence of political opinion, and determined that
Guevara's proposed social group of wealthy individuals lacked the
particularity and social distinction to constitute a particular
social group. The BIA likewise found that because she had not met
her burden for asylum, Guevara necessarily had not satisfied the
higher clear probability standard for withholding of removal, nor
had she demonstrated that it was more likely than not that she
would be tortured in El Salvador so as to qualify for CAT
protection. Guevara now petitions this Court to review the BIA's
decision.
II. Standard of Review
This Court reviews the BIA's findings of fact and
determinations of credibility under a "substantial evidence"
standard. See 8 U.S.C. § 1252(b)(4)(B); INS v. Elías-Zacarías,
502 U.S. 478, 481 n.1 (1992). A court "accept[s] the agency's
findings of fact, including credibility findings, as long as they
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are 'supported by reasonable, substantial, and probative evidence
on the record considered as a whole.'" Segran v. Mukasey, 511
F.3d 1, 5 (1st Cir. 2007) (quoting Elías-Zacarías, 502 U.S. at
481). Under this deferential standard of review, a court will
reverse only if "any reasonable adjudicator would be compelled to
conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B). "Unless the
evidence 'points unerringly in the opposite direction,' that is,
unless it compels a contrary conclusion, the findings must be
upheld." Segran, 511 F.3d at 5 (quoting Laurent v. Ashcroft, 359
F.3d 59, 64 (1st Cir. 2004)). Questions of law are reviewed de
novo. Liu v. Holder, 714 F.3d 56, 59 (1st Cir. 2013).
III. Discussion
Guevara spends substantial portions of her briefs
assailing the IJ's determination that she lacked credibility.
However, the BIA did not rely on the IJ's credibility
determination. Rather, the BIA "affirm[ed] the Immigration
Judge's denial of asylum based on the determination that, even if
the respondent testified credibly, she did not establish past
persecution or an objectively-reasonable fear of future
persecution on a protected ground under the Act." "Where the BIA
does not adopt an IJ's opinion but instead makes an independent,
superceding decision, we review the decision of the BIA, and not
that of the IJ. Because the BIA made no determination of
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[petitioner]'s credibility in reaching its decision,
[petitioner]'s credibility is not an issue here." Xu v. Gonzales,
424 F.3d 45, 48 (1st Cir. 2005)(internal citations omitted).
Therefore, "[w]e cannot and need not review the credibility
determination of the IJ." Id.
As to her remaining arguments, Guevara bears the burden
of demonstrating that she is "unable or unwilling to return" to
her home country "because of persecution or a well-founded fear of
persecution on account of race, religion, nationality, membership
in a particular social group, or political opinion." 8 U.S.C. §
1101(a)(42). She has failed to meet this burden.
Guevara contends that she is a member of a social group,
namely successful entrepreneurs who resist the demands of gangs.
But "we have rejected proposed social groups 'based solely on
perceived wealth, even if signaling an increased vulnerability to
crime,' regardless of why one is perceived as wealthy." Beltrand-
Alas v. Holder, 689 F.3d 90, 94 (1st Cir. 2012) (quoting García-
Callejas v. Holder, 666 F.3d 828, 830 (1st Cir. 2012)). We have
also "decided a number of cases that have rejected the argument
that people who oppose gang membership or recruitment are members
of a particular social group." Id. at 93 (citing García-Callejas,
666 F.3d at 830 (1st Cir. 2012)).
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Guevara also argues that the threats from gangs she faced
in El Salvador amount to persecution, and she is therefore entitled
to a presumption of future persecution. In order for threats to
rise to the level of persecution, however, they must have been "so
menacing as to cause significant actual 'suffering or harm.'"
Bonilla v. Mukasey, 539 F.3d 72, 77-78 (1st Cir. 2008) (holding
that the BIA was not compelled to find past persecution based upon
evidence of a string of threatening phone calls, a threatening
letter identifying Bonilla as a military target, and graffiti).
The threats Guevara has alleged were not so menacing as to compel
a reasonable adjudicator to find that Guevara has suffered from
persecution, and Guevara has not alleged any physical harm.
Guevara's efforts to claim that she suffered persecution through
emotional harm are similarly to no avail. This Court recognizes
that "under the right set of circumstances, a finding of past
persecution might rest on a showing of psychological harm."
Makhoul v. Ashcroft, 387 F.3d 75, 80 (1st Cir. 2004). However,
Guevara failed to provide any testimony or other evidence that the
threatening notes caused her any psychological harm.
IV. Conclusion
Guevara's petition for review is denied.
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