Chavez-Mendez v. Whitaker

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 18-1538
OSCAR NEFTALI CHAVEZ-MENDEZ,
Petitioner,
v.
MATTHEW G. WHITAKER,
ACTING ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch and Lipez, Circuit Judges,
and Katzmann, Judge.
Lidia M. Sanchez, on brief for petitioner.
Chad A. Readler, Acting Assistant Attorney General, Civil
Division, Jeffrey R. Leist, Senior Litigation Counsel, Office of
Immigration Litigation, and Lance L. Jolley, Trial Attorney,
Office of Immigration Litigation, on brief for respondent.
January 10, 2019

Pursuant to Fed. R. App. P. 43(c)(2), Acting Attorney
General Matthew G. Whitaker has been substituted for former
Attorney General Jefferson B. Sessions, III as the respondent.

Of the United States Court of International Trade, sitting
by designation.
KATZMANN, Judge. Petitioner Oscar Neftali Chavez-Mendez
(“Chavez-Mendez”), a native and citizen of Guatemala, seeks review
of a May 7, 2018 final order issued by the Board of Immigration
Appeals (“BIA”) affirming the immigration judge’s denial of his
application for asylum under section 208 of the Immigration and
Nationality Act (“INA”), 8 U.S.C. § 1158.
In his application, Chavez-Mendez alleged fear of
persecution from members of a neighboring village based on his
membership in a particular social group comprised of residents of
his hometown. In its decision, the BIA stated:
The respondent [Chavez-Mendez] credibly testified to the
following. The respondent lived with his parents in a
village of about 200 people in Guatemala. The village
was downhill from another village, and when villagers
from the respondent’s town would travel uphill to
cultivate the land, various disputes broke out between
the residents of both towns over access to the land and
water. During the conflicts, villagers were armed with
sticks and machetes. The respondent’s father
participated in the conflict, and the opposing villagers
once captured and threatened to kill the respondent’s
uncle. The respondent never personally witnessed any of
the altercations nor was he involved in any of the
disputes, and the respondent and his siblings were never
harmed as a result of these conflicts. The police or
soldiers sometimes came to the village to restore the
peace when the disputes broke out.
In denying Chavez-Mendez’s application, the BIA upheld
the immigration judge’s conclusion that he failed “to carry his
burden of proof to establish that he experienced past harm
sufficiently severe to qualify as persecution,” and failed “to
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carry his burden to establish a nexus between the harm that he
fears and his identified particular social group.” We agree.
Judicial review of the BIA’s denial of asylum is
deferential. See 8 U.S.C. § 1252(b)(4)(B). We examine fact-bound
challenges only to ensure that the BIA’s findings are supported by
substantial evidence in the administrative record as a whole. See
Makhoul v. Ashcroft, 387 F.3d 75, 79 (1st Cir. 2004). The denial
of asylum must be affirmed unless the administrative record
“unequivocally indicates error.” Id. at 79. “We review the BIA’s
legal conclusions de novo, although we grant some deference to its
interpretations of statutes and regulations related to immigration
matters.” Aldana-Ramos v. Holder, 757 F.3d 9, 14 (1st Cir. 2014).
To be eligible for asylum, the applicant must
demonstrate that he or she is a refugee as defined in INA §
101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). Section 101(a)(42)(A)
of the INA defines a refugee as “any person who is outside any
country of such person’s nationality . . . and who is unable or
unwilling to return to, and is unable or unwilling to avail himself
or herself of the protection of, that 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)(A); see also
Aldana-Ramos, 757 F.3d at 14.
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Substantial evidence supports the BIA’s determination
that Chavez-Mendez did not suffer persecution in Guatemala as a
child. The harm his family suffered appears to be limited.
Neither Chavez-Mendez nor any of his immediate family members were
harmed. Substantial evidence also supports the BIA’s
determination that Chavez-Mendez failed to establish that the
dispute of the use of land is a protected basis for asylum relief.
“We have explained that, in general, [e]vents that stem from
personal disputes are . . . not enough to show the required nexus.”
Guerra-Marchorro v. Holder, 760 F.3d 126, 129 (1st Cir. 2014)
(quoting Sompotan v. Mukasey, 533 F.3d 63, 71 (1st Cir. 2008));
see also Lopez-Lopez v. Sessions, 885 F.3d 49, 51-52 (1st Cir.
2018). Quite apart from failing to establish the requisite nexus,
Chavez-Mendez has not shown that the record compels the conclusion
that the Guatemalan government would be unable or unwilling to
protect him from persecutors. See 8 U.S.C. § 1101(a) (42)(A);
Morales-Morales v. Sessions, 857 F.3d 130, 135-136 (1st Cir. 2017).
Moreover, “a general difficulty preventing the occurrence of
particular future crimes” is not sufficient to show that the
government is unable or unwilling to protect him. Morales-Morales,
857 F.3d at 136 (quoting Ortiz-Araniba v. Keisler, 505 F.3d 39, 42
(1st Cir. 2007)) (emphasis in original). Finally, Chavez-Mendez’s
asserted generalized fear of future harm from gangs or drug
traffickers is insufficient to meet his burden of proof for asylum.
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“[S]uch generalized evidence is not sufficient to compel a finding
of a well-founded fear of persecution.” Villafranca v. Lynch, 797
F.3d 91, 96 (1st Cir. 2015); Makhoul, 387 F.3d at 82.
Chavez-Mendez’s petition for review is denied.
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