Lopez-Perez v. Garland ( 2022 )

United States Court of Appeals
For the First Circuit
No. 21-1057
LEONARDO FABIO LÓPEZ-PÉREZ,
Petitioner,
v.
MERRICK B. GARLAND,
UNITED STATES ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Kayatta, Lipez, and Gelpí, Circuit Judges.
Jeffrey B. Rubin, Todd C. Pomerleau, Kimberly A. Williams,
and Rubin Pomerleau PC on brief for petitioner.
Brian Boynton, Acting Assistant Attorney General, Civil Division,
with whom Jennifer R. Khouri, Acting Senior Litigation Counsel,
and Julia J. Tyler, Trial Attorney, Office of Immigration
Litigation, Civil Division, on brief for respondent.
February 22, 2022
 Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Merrick B. Garland has been substituted for former Acting Attorney
General Robert Montague Wilkinson as the respondent.
GELPÍ, Circuit Judge. Leonardo Fabio López-Pérez
("López-Pérez"), a native and citizen of Guatemala, petitions for
review of a ruling of the Board of Immigration Appeals ("BIA")
affirming the denial of his application for asylum, withholding of
removal, protection under the Convention Against Torture ("CAT"),
and voluntary departure. For the reasons that follow, we affirm.
I. Relevant Factual and Procedural Background
In early 2012, López-Pérez entered the United States through
the United States-Mexico border, without inspection, admission, or
parole. At the time, he was sixteen years old. López-Pérez was
initially included in his parents' asylum application filed on
November 4, 2013. However, said application was withdrawn on
November 4, 2017. López-Pérez claims he was unaware of this fact
and learned of this withdrawal during his own removal proceedings,
well after he had turned twenty-one.
In December 2018, the Department of Homeland Security served
López-Pérez with a Notice to Appear, charging him with removability
pursuant to § 212(a)(6)(A)(i) of the Immigration and Nationality
Act ("INA") as an "alien present in the United States without being
admitted or paroled." 8 U.S.C. § 1182(a)(6)(A)(i).
An Immigration Judge ("IJ") conducted a hearing on September
16, 2019, during which López-Pérez conceded removability and
applied for asylum, withholding of removal, protection under the
CAT, and post-conclusion voluntary departure.
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In a subsequent hearing on November 7, 2019, López-Pérez
testified before the IJ in support of his applications for relief.
During his testimony, he described his childhood living with his
grandmother and sisters in San Marcos, Guatemala. He stated that
in addition to Spanish, he spoke the Mam dialect.1 López-Pérez
also asserted that during his childhood he was persecuted for being
Mam. While attending school, López-Pérez allegedly was
mistreated, subjected to mockery and bullying, and faced verbal
attacks by his classmates for his ethnicity and speaking the Mam
language. He further stated that he felt threatened in Guatemala
given that his cousin, Adan López Gómez, had been kidnapped in
2008. Subsequently, his cousin received letters warning that the
kidnappers would go after his family. When asked why the
kidnappers targeted his cousin, López-Pérez replied that they
perceived him as a wealthy merchant. This testimony was
corroborated by two sworn statements from López-Pérez's cousins,
Adan López Gómez himself and Cecilio López Gómez. When asked why
he felt apprehensive about returning to Guatemala, López-Pérez
responded that he feared that what had happened to his cousin would
The Mam are an indigenous population in Guatemala, descended
1
from the Mayans. García-García v. Att'y Gen. U.S., 828 F. App'x
106, 107 (3d Cir. 2020).
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also occur to him. Additionally, he claimed that he would be
discriminated against for his Mam identity.
Following the hearing, the IJ found the petitioner's
testimony about his personal and family experiences in Guatemala
credible. The IJ, however, concluded that he was ineligible for
asylum because he had not filed his application within a reasonable
time of turning eighteen, turning twenty-one, or following his
parents' withdrawal from the asylum-seeking process. In the
alternative, the IJ addressed the merits of the asylum claim and
concluded that before he left Guatemala, López-Pérez had not
suffered harm that rose to the level of past persecution.
Additionally, the IJ found that López-Pérez failed to meet the
requisite standard for such relief because he did not show that he
would suffer any harm on account of one of the five protected
grounds enumerated in the asylum statute. Because his asylum claim
failed on the merits, the IJ found that López-Pérez was unable to
satisfy the even more stringent burden of establishing a
withholding of removal claim. The IJ next denied López-Pérez's
CAT petition, concluding that he had not established a likelihood
that, if sent back to Guatemala, he would be subject to torture by
or with the consent or acquiescence of a public official. Finally,
after considering López-Pérez's positive equities and past
unlawful activity, the IJ denied the request for voluntary
departure.
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López-Pérez appealed the IJ's ruling to the BIA, which
affirmed the IJ's conclusions. He subsequently filed a timely
petition for review with this court.
II. Standard of Review
Where, as here, "the BIA adopts and affirms an IJ's decision,
we review the IJ's decision to 'the extent of the adoption, and
the BIA's decision as to [any] additional ground.'" Sunoto v.
Gonzales, 504 F.3d 56, 59–60 (1st Cir. 2007) (alteration in
original) (quoting Berrio-Barrera v. Gonzales, 460 F.3d 163, 167
(1st Cir. 2006)). The agency's findings of fact are reviewed under
the substantial evidence standard. "This standard applies both to
asylum and withholding claims as well as claims brought under CAT."
Settenda v. Ashcroft, 377 F.3d 89, 93 (1st Cir. 2004). Under this
analysis, the agency's determinations will be upheld unless the
record evidence "compel[s] a reasonable factfinder to make a
contrary determination." Romilus v. Ashcroft, 385 F.3d 1, 5 (1st
Cir. 2004) (quoting Guzmán v. INS, 327 F.3d 11, 15 (1st Cir.
2003)); see also 8 U.S.C. § 1252(b)(4)(B). Questions of law, in
turn, are reviewed de novo. Romilus, 385 F.3d at 5.
III. Discussion
a. Timeliness of the Asylum Application
A noncitizen is eligible for asylum upon establishing that he
is a refugee as defined by the INA. Pérez-Rabanales v. Sessions,
881 F.3d 61, 65 (1st Cir. 2018); see also 8 U.S.C. § 1101(a)(42).
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"A refugee is a person who cannot or will not return to [his] 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.'" Olujoke v.
Gonzales, 411 F.3d 16, 21 (1st Cir. 2005) (quoting 8 U.S.C.
§ 1101(a)(42)).
An asylum application must be filed "within 1 year after the
date of the alien's arrival in the United States." 8 U.S.C.
§ 1158(a)(2)(B). Failure to comply with said deadline may be
excused if the "applicant demonstrates 'changed circumstances
which materially affect [his] eligibility for asylum or
extraordinary circumstances relating to the delay in filing'" and
if the non-citizen "file[s] the application 'within a reasonable
period' given those circumstances." Oroh v. Holder, 561 F.3d 62,
66 (1st Cir. 2009) (first quoting 8 U.S.C. § 1158(a)(2)(D); then
quoting 8 C.F.R. §§ 1208.4(a)(4), (5)). A noncitizen can establish
a changed circumstance that preserves his eligibility for asylum
by proving that he was previously included as a dependent in
another noncitizen's asylum application and the parent-child
relationship to the principal applicant was lost by the attainment
of age twenty-one. 8 C.F.R. § 1208.4(a)(4)(i)(C). The noncitizen
bears the burden of establishing that he qualifies for such an
exception. Id. § 1208.4(a)(2)(i).
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It is undisputed that López-Pérez resided in the United States
for more than seven years prior to filing his own asylum
application. Indeed, by the time he filed his application, he was
twenty-three. Consequently, both the IJ and the BIA determined
that López-Pérez's application was untimely because it fell well
outside of the one-year period after he turned twenty-one. For
this reason, the IJ and the BIA concluded that López-Pérez had not
demonstrated changed or extraordinary circumstances that justified
the long delay in filing his asylum application.
Congress has limited "the scope of judicial review with
respect to timeliness determinations in asylum cases." Pan v.
Gonzales, 489 F.3d 80, 84 (1st Cir. 2007). As such, this court is
barred from reviewing the agency's determination unless the
noncitizen identifies a legal or constitutional question. Rashad
v. Mukasey, 554 F.3d 1, 5 (1st Cir. 2009); see also 8 U.S.C.
§ 1158(a)(3). Therefore, before we can reach the substance of
López-Pérez's timeliness argument, he must identify a "legal or
constitutional defect" in the agency's decision which would allow
us to review the agency's determination regarding the
application's timeliness. Rashad, 554 F.3d at 5.
López-Pérez contends that the IJ failed to consider that he
did not know about his parents' withdrawal from the asylum-seeking
process until his own removal proceedings had begun. Although
López-Pérez claims that the agency committed factual and legal
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error, his challenge nonetheless "takes issue with the evidentiary
basis for the BIA's finding that 'circumstances' did not excuse
his untimely application for asylum." Rodríguez-Palacios v. Barr,
927 F.3d 13, 17 (1st Cir. 2019). This is the sort of "factual
claim masqueraded as a legal challenge" which we lack jurisdiction
to review. Rashad, 555 F.3d at 5.
b. Withholding of Removal
Even if certain applicants are not eligible for asylum, they
may still be entitled to withholding of removal. Sosa-Pérez v.
Sessions, 884 F.3d 74, 77 (1st Cir. 2018). To qualify for
withholding of removal, López-Pérez must show that there is a clear
probability that his life or freedom would be threatened in
Guatemala because of his "race, religion, nationality, membership
in a particular social group, or political opinion." 8 U.S.C.
§ 1231(b)(3)(A).
The burden of proof in a withholding of removal claim is
higher than that of an asylum claim. Soeung v. Holder, 677 F.3d
484, 487 (1st Cir. 2012); see also Sosa-Pérez, 884 F.3d at 77. As
such, a noncitizen who cannot meet the lower asylum standard will
necessarily fail to make out a counterpart claim under the higher
standard for withholding of removal. See Soeung, 677 F.3d at 487.
Here, the IJ found, and the BIA affirmed, that López-Pérez did not
qualify for withholding of removal because he did not meet the
lower threshold for asylum.
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We will uphold the agency's determination in the face of a
substantial evidence challenge "unless the evidence points
unerringly in the opposite direction." Rashad, 554 F.3d at 6(quoting Khan v. Mukasey, 549 F.3d 573, 576 (1st Cir. 2008)). In
the present case, the evidence does not compel us to reject the
agency's conclusion. First, the record fails to compel a finding
that López-Pérez was subject to any treatment that amounts to past
persecution. Although the addition of physical violence is not
required for such a finding, see Javed v. Holder, 715 F.3d 391,
396 (1st Cir. 2013), past persecution requires that "the totality
of a petitioner's experiences add up to more than mere
discomfiture, unpleasantness, harassment, or unfair treatment."
Nikijuluw v. Gonzales, 427 F.3d 115, 120 (1st Cir. 2005).
The alleged past persecution based on his cousin's kidnapping
incident in Guatemala in 2008 and his membership in the same
familial group does not compel a finding of past persecution.
López-Pérez did not testify to having received direct threats.
Additionally, as the agency noted, López-Pérez indicated that
neither he nor his family had been subjected to further violence
by Adan's kidnappers in the years between the kidnapping and the
time López-Pérez left Guatemala. Nor does the past mistreatment
suffered by López-Pérez on the basis of his Mam identity compel a
finding of past persecution. Although we acknowledge López-
Pérez's claims that he experienced racial slurs in public and
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bullying in school, we do not think these lamentable experiences
compel a finding that López-Pérez endured "more than mere
discomfiture, unpleasantness, harassment, or unfair treatment."
Nikijuluw, 427 F.3d at 120.2 Moreover, López-Pérez now argues,
for the first time, that his age at the time of the discriminatory
acts is a factor that should be considered when analyzing the past
persecution. This argument was not raised before the BIA and, as
such, we are now precluded from entertaining it. Sanabria Morales
v. Barr, 967 F.3d 15, 19 (1st Cir. 2020).
López-Pérez also claims fear of future persecution for being
cousin to Adan López Gómez, who was kidnapped when, according to
his sworn statement, he was believed to be a wealthy merchant. We
note that López-Pérez's sister and cousin Adan still reside in
Guatemala and have not suffered further violence by Adan's
kidnappers. Cf. Aguilar-Solis v. INS, 168 F.3d 565, 573 (1st Cir.
1999) ("[T]he fact that close relatives continue to live peacefully
in the alien's homeland undercuts the alien's claim that
persecution awaits his return."). Additionally, the record does
not compel the conclusion that it would be unreasonable to expect
López-Pérez to relocate internally in Guatemala to avoid future
persecution. 8 C.F.R. § 1208.13(b)(2)(ii).
2 Although López-Pérez claims on appeal to have experienced
"beatings in school," he testified before the IJ that other
students "never beat" him.
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Furthermore, in his asylum application, López-Pérez noted
that he feared being targeted upon his return to Guatemala because
he lived in the United States and "the perception is [that] I have
money." Being perceived as wealthy, however, is not an available
ground for claiming protection. Hernández-Lima v. Lynch, 836 F.3d
109, 116 (1st Cir. 2016).
Finally, López-Pérez avers that if sent back to his country
he will be forced to join the Mam militia and fight for lands
nearby the Mam settlement. He posits that Guatemalan police
officers will not provide security for him as they do not intervene
in issues related to indigenous communities. The BIA rejected
this theory, noting that López-Pérez "was not persecuted in the
past on this basis, and his vague testimony that he may be
recruited by other members of his indigenous community to
participate in defending their land does not establish the basis
for an asylum claim."3 The record does not compel a conclusion
that López-Pérez will experience future persecution by the Mam
people upon his return. Rather, it indicates that his family has
already left the Mam village and none of his relatives have been
involved in tribal land conflicts. Additionally, there is no
evidence that López-Pérez will go back to reside in the Mam
3 As to López-Pérez's complaint that the BIA's analysis was
"short" and bereft of "any specific fact-finding," it is difficult
to see what more the BIA might have said on the basis of the
petitioner's "vague testimony."
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village. Thus, substantial evidence supports the agency's
findings. Because the record does not compel the conclusion that
López-Pérez would have been entitled to asylum on the merits, it
necessarily fails to compel the conclusion that he satisfies the
more onerous "clear probability" standard of his withholding of
removal claim. The record does not compel a finding that López-
Pérez has shown a "clear probability" that his life or freedom
would be threatened based on his relation to Adan López Gómez or
his Mam identity if returned to Guatemala.
c. Protection under the Convention Against Torture
To succeed on a CAT claim, the petitioner must show that "it
is more likely than not that he . . . would be tortured if removed
to the proposed country of removal." 8 C.F.R. § 1208.16(c)(2).
This requires the noncitizen to offer specific evidence showing
that he will be subject to
(1) an act causing severe physical or mental pain or
suffering; (2) intentionally inflicted; (3) for a
proscribed purpose; (4) by or at the instigation of or
with the consent or acquiescence of a public official
who has custody or physical control of the victim; and
(5) not arising from lawful sanctions.
Samayoa Cabrera v. Barr, 939 F.3d 379, 382 (1st Cir. 2019) (quoting
Settenda v. Ashcroft, 377 F.3d 89, 94 (1st Cir. 2004)); see also
8 C.F.R § 1208.18(a).
López-Pérez contends that he would be subject to torture upon
his return to Guatemala by being forced to fight in a land war
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against his will, and because the police will not protect him.
The IJ pointed out that López-Pérez's fears relate to "crime and
actions by private actors" instead of the government of Guatemala.
Additionally, the IJ concluded that the record is insufficient to
justify his fears of torture and thus did not meet the high burden
needed for CAT relief. The BIA affirmed, stating: "We discern no
clear error in the [IJ's] predictive fact finding regarding what
is likely to occur to the respondent, who has not been tortured in
the past, following his return to Guatemala and agree that the
predicted outcome does not satisfy the legal definition of
torture."
We again review under the substantial evidence standard,
upholding the BIA's decision "if supported by reasonable,
substantial, and probative evidence on the record considered as a
whole." Settenda, 377 F.3d at 93 (quoting INS v. Elias-Zacarias,
502 U.S. 478, 481 (1992)). The record here contains such evidence
supporting the agency's conclusion that López-Pérez did not prove
that it was more likely than not that he would be tortured by or
with the acquiescence of the government if he returned to
Guatemala. When asked about the conditions in the Mam village and
the indigenous land war, López-Pérez stated that he has no contact
with people who live in the Mam village and that he understands
that the village's problems persist from what some recent arrivals
from the area told him and from what he has seen on the internet.
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Additionally, as previously discussed, there is no evidence that
López-Pérez will go back to reside in the Mam village.
Furthermore, his sister moved from the village to an area not
disturbed with land wars. Although López-Pérez points to country
condition evidence, the evidence of record as a whole is
insufficient to compel a reasonable factfinder to conclude that it
is more likely than not that López-Pérez would be tortured by or
with the acquiescence of a government official if he were to return
to Guatemala.
d. Voluntary Departure
Voluntary departure is a discretionary form of relief through
which the United States permits a noncitizen to voluntarily depart
from the country. See DaCosta v. Gonzales, 449 F.3d 45, 51 (1st
Cir. 2006). "Voluntary departure benefits the government by
expediting repatriation and eliminating the costs associated with
deportation. At the same time, it benefits the alien by allowing
him to choose his destination and avoid some of the penalties
attendant to removal." Naeem v. Gonzales, 469 F.3d 33, 36–37 (1st
Cir. 2006). Our jurisdiction to review voluntary departure denials
"is narrowly circumscribed." Cruz-Orellana v. Sessions, 878 F.3d
1, 4 (1st Cir. 2017). "[A] noncitizen may not bring a factual
challenge to orders denying discretionary relief, including
cancellation of removal, voluntary departure, adjustment of
status, certain inadmissibility waivers, and other determinations
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'made discretionary by statute.'" Nasrallah v. Barr, 140 S. Ct.
1683, 1693–94 (2020) (quoting Kucana v. Holder, 558 U.S. 233, 248
(2010)). However, this court may review "constitutional claims or
questions of law." 8 U.S.C. § 1252(a)(2)(D).
The IJ denied López-Pérez voluntary departure, exercising
discretionary authority upon analyzing the evidence presented and
concluding he was ineligible for relief. López-Pérez posits that
the IJ erred by "fail[ing] to properly assess all of the provided
testimony and evidence when reaching her determination." However,
López-Pérez simply does not raise a constitutional challenge or
legal question. See Cruz-Orellana, 878 F.3d at 4. Instead, he
argues that the IJ gave undue weight to his past conviction for
driving under the influence of alcohol, his dismissed charge
relating to an assault in 2017, and a recent charge for assault
and battery against his child's mother and her male friend.
Nevertheless, López-Pérez "develop[ed] no argument that the law
categorically precludes an immigration court from taking such
[facts] into account." Lee v. Barr, 975 F.3d 69, 74 (1st Cir.
2020). The BIA affirmed the IJ's rationale that the equities in
petitioner's favor did not outweigh the adverse factors as to
warrant voluntary departure. This is precisely the kind of
discretionary decision that we lack jurisdiction to review. Id.For the foregoing reasons, the BIA's ruling is
Affirmed.
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