Diego Pablo-Ajualip v. Merrick Garland ( 2023 )

United States Court of Appeals
For the Eighth Circuit
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No. 22-2475
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Diego Pablo-Ajualip
Petitioner
v.
Merrick B. Garland, Attorney General of the United States
Respondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: March 10, 2023
Filed: March 15, 2023
[Unpublished]
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Before COLLOTON, KELLY, and GRASZ, Circuit Judges.
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PER CURIAM.
Guatemalan citizen Diego Pablo-Ajualip applied for asylum, withholding of
removal, and protection under the Convention Against Torture (CAT). An
immigration judge rejected his argument that the immigration court lacked
jurisdiction over his proceedings and denied his application. The Board of
Immigration Appeals affirmed. Pablo-Ajualip petitions for review.
After careful review, we conclude that Pablo-Ajualip’s challenge to the
agency’s jurisdiction over his removal proceedings based on his purportedly defective
Notice to Appear is foreclosed by this court’s precedent, see Ali v. Barr, 924 F.3d
983, 985-86 (8th Cir. 2019); see also Tino v. Garland, 13 F.4th 708, 709 n.2 (8th Cir.
2021) (per curiam).
We also conclude the agency did not err by denying Pablo-Ajualip asylum. See
8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1). His proposed particular social group was
not cognizable under this court’s precedents. See Tojin-Tiu v. Garland, 33 F.4th
1020, 1024 (8th Cir. 2022) (concluding “young, Guatemalan men who refuse to
cooperate with gang members” is not cognizable); Tino, 13 F.4th at 710 (concluding
“family unaffiliated with any gangs who refuse to provide any support to
transnational criminal gangs in Guatemala” was not cognizable). The record also
does not compel the conclusion that the actors he feared were or would be motivated
by his race, as he offered no evidence that race played a role. See 8 U.S.C.
§ 1158(b)(1)(B)(i); Silvestre-Giron v. Barr, 949 F.3d 1114, 1118, 1119 & n.3 (8th
Cir. 2020); see also Tino, 13 F.4th at 710. These determinations were fatal to his
asylum claim, so we do not reach his other arguments. See Tino, 13 F.4th at 710;
Miranda v. Sessions, 892 F.3d 940, 944 (8th Cir. 2018).
Because Pablo-Ajualip’s asylum claim fails, the agency properly concluded he
necessarily could not meet the more rigorous standard of proof for withholding of
removal. See Tino, 13 F.4th at 710. Finally, the agency did not err by denying his
CAT claim, which was based on the same allegations as his other claims. See Martin
Martin v. Barr, 916 F.3d 1141, 1145 (8th Cir. 2019).
Accordingly, we deny the petition for review. See 8th Cir. R. 47B.
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