Loaiza Archila v. Holder , 495 F. App'x 98 ( 2012 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 12-1117
HECTOR RENE LOAIZA ARCHILA,
Petitioner,
v.
ERIC H. HOLDER, JR.,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Howard, Stahl, and Lipez,
Circuit Judges.
Robert Michael Warren on brief for petitioner.
Rebecca Hoffberg Phillips, Trial Attorney, Office of
Immigration Litigation, Civil Division, Stuart F. Delery, Acting
Assistant Attorney General, and Ada E. Bosque, Senior Litigation
Counsel, on brief for respondent.
November 16, 2012
STAHL, Circuit Judge. Hector Rene Loaiza petitions for
review of the denial by the Board of Immigration Appeals (BIA) of
his applications for asylum, withholding of removal, and protection
under the Convention Against Torture (CAT). Because the BIA's
decision is supported by substantial evidence, we deny the
petition.
I. Background
Loaiza, a citizen of Guatemala, entered the United States
without inspection on January 23, 1993. Five months later, he
applied for asylum and withholding of removal, citing the danger
from paramilitary and guerrilla groups in Guatemala as the reason
for his application. In May 2008, he was interviewed by an asylum
officer. Later that year, after being served with a Notice to
Appear, Loaiza conceded removability, renewed his request for
asylum and withholding, and added a request for CAT protection. He
appeared with counsel for a merits hearing before an Immigration
Judge (IJ) in February 2010.
At the merits hearing, Loaiza testified about, and
produced documentary evidence of, various threats and acts of
violence directed at his family and neighbors by clandestine groups
affiliated with the Guatemalan military or communist guerrilla
organizations. Loaiza's father was tortured, and his brother and
brother-in-law were murdered. More than once, Loaiza was forced to
flee his home to avoid forced recruitment or violence at the hands
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of these clandestine groups. A psychologist testified that these
experiences had traumatized Loaiza, leaving him with symptoms of
Post-Traumatic Stress Disorder.
The IJ denied Loaiza's application. He credited Loaiza's
testimony, but found that Loaiza had failed to show a nexus between
his fear of persecution upon returning to Guatemala and his race,
religion, nationality, membership in a particular social group, or
political opinion, as required to justify asylum or withholding of
removal. See Mayorga-Vidal v. Holder, 675 F.3d 9, 13 (1st Cir.
2012). He also found that Loaiza's CAT claim failed because Loaiza
had not shown that he would be tortured in Guatemala.
On appeal, the BIA agreed with the IJ that Loaiza had
failed to show that any past or feared future persecution was on
account of a protected ground. The BIA assumed that Loaiza's
family could be a particular social group, but concluded that he
had not shown a link between his fear of future persecution and his
family membership. Likewise, the BIA found no evidence to support
Loaiza's claim that he was persecuted because the clandestine
groups imputed a political opinion of "neutrality" to Loaiza and
his family. Finally, the BIA agreed with the IJ that Loaiza had
not shown sufficient evidence that the Guatemalan government would
torture him or acquiesce in his torture if he returned.
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II. Discussion
Our review of the BIA's decision is deferential. The
BIA's "findings of fact are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary."
8 U.S.C. § 1252(b)(4)(B). Thus, we will "accept the BIA's findings
so long as they are 'supported by reasonable, substantial, and
probative evidence on the record considered as a whole.'"
Scatambuli v. Holder, 558 F.3d 53, 58 (1st Cir. 2009) (quoting
Sharari v. Gonzáles, 407 F.3d 467, 473 (1st Cir. 2005)). We review
the BIA's legal interpretations de novo. See id. Where, as here,
the BIA affirms and elaborates on the IJ's findings, we review both
decisions. Chanthou Hem v. Mukasey, 514 F.3d 67, 69 (1st Cir.
2008).
To be eligible for asylum, an applicant must establish a
well-founded fear that he will be persecuted upon repatriation on
account of a protected ground: race, religion, nationality, social
group membership, or political opinion. Mayorga-Vidal, 675 F.3d at
13. A fear is well-founded if it is both genuine and objectively
reasonable. Mendez-Barrera v. Holder, 602 F.3d 21, 25 (1st Cir.
2010). An applicant seeking withholding of removal must clear the
higher bar of showing that future persecution on account of one of
the statutory grounds is more likely than not to occur.
Mayorga-Vidal, 675 F.3d at 13. To satisfy the on-account-of
requirement, an applicant must provide at least "some evidence,"
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whether direct or circumstantial, of his persecutors' motives.
I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483 (1992) (emphasis
omitted).
Before this court, Loaiza asserts that the BIA erred by
finding that he failed to show a nexus between the persecution he
fears in Guatemala and either his family membership or an imputed
political opinion of neutrality. He also suggests -- for the first
time -- that he was targeted as a member of a social group
comprised of "persons who resist clandestine groups." Because this
novel argument was not raised before the BIA, we will not consider
it. See Silva v. Gonzales, 463 F.3d 68, 72 (1st Cir. 2006) ("Under
the exhaustion of remedies doctrine, theories insufficiently
developed before the BIA may not be raised before this court.").
Likewise, because Loaiza makes no more than a cursory reference to
his CAT claim, that claim is waived. See Morgan v. Holder, 634
F.3d 53, 60 (1st Cir. 2011) (deeming abandoned a "wholly
undeveloped" CAT claim). Thus, we turn to Loaiza's family-
membership and political-opinion claims.
Family membership can constitute membership in a
particular social group for asylum purposes. "[T]o ground a viable
asylum claim, that family membership must be at the root of the
persecution, so that family membership itself brings about the
persecutorial conduct." Ruiz v. Mukasey, 526 F.3d 31, 38 (1st Cir.
2008). We cannot conclude that the record compels such a
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conclusion here. Loaiza testified that multiple members of his
family were the victims of troubling incidents of violence,
intimidation, and even murder, but he did not establish that they
were targeted specifically because of their kinship. See id.(noting that "it is not enough merely to show that multiple members
of a single family had negative experiences"). On this record, it
may be a plausible inference that the Loaiza family was targeted en
masse because of some family members' unwillingness to pick a side
in the government-guerrilla conflict, but it is also plausible
that, as the BIA concluded, they were simply victims of the chaotic
lawlessness that prevailed in Guatemala. See Escobar v. Holder,
No. 11-2086, 2012 WL 5193223, at *2 (1st Cir. Oct. 22, 2012)
(noting widespread civil strife and violence in Guatemala during
the same time period). Where the IJ and the BIA choose between
equally plausible inferences, that choice is, a fortiori, supported
by substantial evidence. See Morgan, 634 F.3d at 60; López de
Hincapie v. Gonzales, 494 F.3d 213, 219 (1st Cir. 2007).
Accordingly, we conclude that Loaiza has failed to show the
requisite link between the persecution he fears and his family
membership.
Likewise, we reject Loaiza's imputed-political-opinion
claim. Even if this claim is not, as the Government contends, too
perfunctory for us to consider, the requisite nexus is absent. To
succeed, Loaiza must show that his persecutors attributed a
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political opinion to him (correctly or not) and that this
attributed opinion was a motive for the persecution. See
Elias-Zacarias, 502 U.S. at 482, 483; Mayorga-Vidal, 675 F.3d at
18. Loaiza appears to ground his political-opinion claim in his
efforts to avoid recruitment by guerrilla and militia groups. But
the Supreme Court has held that resisting guerrilla recruitment is
not inherently political; a person might resist for any number of
apolitical reasons. Elias-Zacarias, 502 U.S. at 482. Here, even
if Loaiza's resistance was political -- he testified that he
opposed the guerrillas' "corrupt" and violent actions -- he has
offered no evidence that his resistance was understood by the
guerrillas to be political in nature. See id. (finding no
statutory nexus where there was no "indication . . . that the
guerrillas . . . believed that Elias-Zacarias' refusal [to join
them] was politically based"). Consequently, this claim too falls
short.
In sum, Loaiza has failed to show an evidentiary basis
for his claims sufficient to compel the conclusion that the BIA
erred. See 8 U.S.C. § 1252(b)(4)(B). Although Loaiza's fear of
returning to the violent conditions that plague Guatemala is
understandable, the absence of the requisite statutory nexus is
fatal to both his asylum and withholding of removal claims.
Accordingly, we need not address his argument, based on In re
Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987), that the BIA somehow
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misapplied the well-founded-fear standard. As Mogharrabi itself
notes, "an alien who succeeds in establishing a well-founded fear
of persecution will not necessarily be granted asylum. He must
also show that the feared persecution would be on account of" a
statutory ground. Id. at 447 (emphasis added). Because Loaiza has
not made that showing, we deny his petition.
III. Conclusion
For the foregoing reasons, we deny the petition for
review.
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