Lucas Domingo v. Merrick Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 9 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUCAS PABLO DOMINGO, No. 18-70779
Petitioner, Agency No. A206-636-862
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 6, 2023**
Pasadena, California
Before: BOGGS,*** IKUTA, and DESAI, Circuit Judges.
Petitioner, Lucas Pablo Domingo, a citizen and national of Guatemala, entered
the United States without inspection as a 17-year-old unaccompanied minor. Pablo
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
Domingo sought asylum, withholding of removal, and protection under the
Convention Against Torture (CAT) on account of his membership in the particular
social group of young men of indigenous descent who have resisted forced gang
recruitment. 1 An immigration judge (IJ) denied his application because Pablo
Domingo had not shown that his indigenous status was a motivating factor for the
gangs’ actions, and therefore failed to show that such harm, and his fear of future
harm, was inflicted on account of his membership in a particular social group.
8 U.S.C. § 1101(a)(42)(A). The Board of Immigration Appeals (BIA) affirmed the
IJ.
Where the BIA issues its own decision, but also relies in part on the IJ’s
reasoning, we review both decisions. See Budiono v. Lynch, 837 F.3d 1042, 1046
(9th Cir. 2016). Factual determinations are reviewed under the substantial-evidence
standard. 8 U.S.C. § 1252(b)(4)(B); Plancarte Sauceda v. Garland, 23 F.4th 824,
831 (9th Cir. 2022). Under this “highly deferential” standard of review, a court must
affirm unless the petitioner shows that “‘the evidence not only supports . . . but
1
Since he was an unaccompanied alien child, Pablo Domingo’s asylum claim
was processed by the U.S. Citizenship and Immigration Services (“USCIS”)
pursuant to the William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008, Pub. L. 110-457, 122 Stat. 5044. USCIS conducted
an assessment, found he was not eligible for asylum, and referred his case to the
immigration court for adjudication of his asylum application.
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compels’ reversal.” Pedro-Mateo v. INS, 224 F.3d 1147, 1150 (9th Cir. 2000)
(quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992)).
To qualify for asylum, a petitioner must show past persecution or a well-
founded fear of future persecution, based on one of five protected grounds, by either
the government or forces the government is unable or unwilling to control.
8 U.S.C. § 1101(a)(42)(A). A nexus must be established between the persecution
and the protected ground, and a grant of asylum is appropriate only if the protected
ground is “one central reason” for the persecution. 8 U.S.C. § 1158(b)(1)(B)(i).
The IJ made factual errors and the BIA adopted those errors in holding that
Pablo Domingo suffered only one violent interaction with a gang attempting to
recruit him: one beating from one gang attack. Pablo Domingo suffered from more
troubling interactions with the gangs, although only one involved an attack on him
personally. When he was only seven years old, his father was severely beaten and
died at home from extensive brain trauma. His mother then left Guatemala for the
United States. He was not bothered by gangs until two things happened: he reached
age 14, and he started attending middle school, which was not located in his village.
While walking to school, Pablo Domingo was attacked and beaten by a gang with
such severity that he required treatment at a medical clinic, and he stopped going to
school because he was afraid. Then his cousin was kidnapped and killed by a gang
after his cousin’s father, Pablo Domingo’s uncle, was unable to pay a ransom. A
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friend of Pablo Domingo’s was also kidnapped and killed. And, “[a]bout one week
before he fled Guatemala, he was approached by a gang member who told him that
if he came back to Guatemala, they would kidnap him.”
All of this happened to Pablo Domingo between the ages of seven and
seventeen. “Age can be a critical factor in the adjudication of asylum claims and
may bear heavily on the question of whether an applicant was persecuted or whether
she holds a well-founded fear of future persecution.” Hernandez-Ortiz v. Gonzales,
496 F.3d 1042, 1045 (9th Cir. 2007) (internal quotation marks and citation omitted).
“[A] child’s reaction to injuries to his family is different from an adult’s. The child
is part of the family, the wound to the family is personal, the trauma apt to be
lasting.” Ibid.The asylum officer, who initially interviewed him, properly took Pablo
Domingo’s age and cultural background into account when considering his
responses to past trauma and, in so doing, found his testimony to be credible. See
Guidelines for Children’s Asylum Claims, 1998 WL 34336292 (INS). In contrast,
the IJ stated that Pablo Domingo had “severe credibility issues” because “after the
apparent severe beating . . . he just decided to remain in Guatemala.” In assessing
asylum cases where the harm occurred to a petitioner or his family when he was a
child, the BIA and IJ should recognize and distinguish between a child’s
psychological response to trauma and that of an adult. See ibid.4 18-70779
Although the IJ and BIA may have mischaracterized the nature and extent of
the harm suffered by Pablo Domingo, even if the harm is correctly characterized, it
is not sufficient to compel a finding that Pablo Domingo’s harm was different from
general gang violence. He failed to establish that one central reason that the gangs
attacked him was because he was indigenous. The only evidence in the record
relating to indigenous status as a basis for gang attacks is the United States
Department of State Country Reports on Human Rights Practices for Guatemala
from 2013 through 2016. Those Country Reports indicate that gang members in
Guatemala “direct harm against anyone and everyone perceived to have interfered
with, or who might present a threat to, their criminal enterprises and territorial
power.” Thus, while Pablo Domingo could have been attacked on account of being
an indigenous young male, nothing compels such a finding. And, since Pablo
Domingo did not meet his burden in establishing eligibility for asylum, he is unable
to meet the higher burden of proof required under withholding of removal. See INS
v. Stevic, 467 U.S. 407, 429-30 (1984); Barajas-Romero v. Lynch, 846 F.3d 351, 360
(9th Cir. 2017).
The BIA and IJ also did not commit clear error in holding that Pablo
Domingo’s fear of generalized gang violence and crime in Guatemala is insufficient
to support protection under CAT. Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152
(9th Cir. 2010). He has failed to demonstrate that it is more likely than not that he
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will experience torture if he returns to Guatemala and there is no evidence in the
record that gang activity is committed by or at the instigation of the government of
Guatemala or anyone acting in an official capacity, or anyone acting with the
government’s consent or acquiescence. See Sharma v. Garland, 9 F.4th 1052, 1067
(9th Cir. 2021); 8 C.F.R. § 1208.18(a)(1).
The petition for review is DENIED.
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