Gonzalez-Arevalo v. Garland

112 F.4th 1

Henry Donaldo GONZALEZ-AREVALO, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.

No. 23-1341

United States Court of Appeals, First Circuit

August 7, 2024

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Randy Olen for petitioner.

Brandon T. Callahan, Trial Attorney, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, with whom Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division, and Jennifer R. Khouri, Senior Litigation Counsel, Office of Immigration Litigation, were on brief, for respondent.

Before Gelpí, Selya, and Thompson, Circuit Judges.

GELPÍ, Circuit Judge.

Petitioner Henry Donaldo Gonzalez-Arevalo ("Gonzalez-Arevalo"), a native and citizen of Guatemala, petitions for review of a final order of the Board of Immigration Appeals ("BIA") affirming the immigration judge's ("IJ") denial of his request for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). The BIA and IJ (collectively, "the agency") found, in part, that Gonzalez-Arevalo failed to prove that he was persecuted "on account of" a statutorily protected ground. 8 U.S.C. § 1101(a)(42)(A). That finding was supported by substantial evidence, and Gonzalez-Arevalo's arguments to the contrary are unpersuasive. We deny his petition.

I. BACKGROUND

We draw our background "from the administrative record, including [Gonzalez-Arevalo's] testimony before the IJ, which the IJ found credible." Chun Mendez v. Garland, 96 F.4th 58, 61 (1st Cir. 2024).

A. Underlying Facts

Gonzalez-Arevalo is a thirty-eight-year-old native and citizen of Guatemala. He entered the United States without authorization in 2003, returned to Guatemala in 2010, and reentered the United States without authorization in 2012. Immigration officials detained him in January 2012. On February 24, 2012, an asylum officer conducted a credible fear interview with Gonzalez-Arevalo and determined that he had established a credible fear of persecution in Guatemala. In the interview, Gonzalez-Arevalo explained that he feared harm because the relatives of the man who murdered his father and uncle believed that Gonzalez-Arevalo was responsible for the man's incarceration.

The Department of Homeland Security ("DHS") served Gonzalez-Arevalo on February 27, 2012, with a Notice to Appear in immigration court. DHS charged him with removability as a noncitizen not in possession of a valid entry document, 8 U.S.C. § 1182(a)(7)(A)(i)(I). He admitted those allegations and conceded his removability on June 9.

He then applied for asylum, withholding of removal, and CAT protection on December 18. He based his application in part on his membership in a particular social group ("PSG") and explained that his "father was killed by a local criminal gang." According to Gonzalez-Arevalo, this gang also "chased [him] with guns" and "set fire to [his] car." He remained "afraid that the gang [would] kill [him] for reprisal because the leader served some time in jail."

He explained in an affidavit supporting his application that, when he was a child, a local gang leader known as "El Vicioso" ("the vicious one") and two or three other individuals murdered his father and uncle in a home invasion in Guatemala in 1988. El Vicioso was imprisoned, but Gonzalez-Arevalo remained afraid of El Vicioso's family, who still live in Guatemala. Gonzalez-Arevalo also described how unknown gang members in Guatemala killed his two cousins and a family friend.

Gonzalez-Arevalo testified further about these experiences at a hearing before the IJ on July 23, 2019.¹ He described his proposed PSG as "Guatemalan males who, and whose family, have suffered past persecution by means of murder of the father of the family by gangs." "[T]he family of those two that are incarcerated" for his father and uncle's murder, he explained, "think that [he and his family] are at fault for that, so ... that's the reason why the problems have continued." Indeed, he clarified that El Vicioso's relatives "think that [he and his family] did that to him." Gonzalez-Arevalo explained that one of the killers was a member of his own family, and his father and uncle's murder was in "vengeance" for some previous slight.

Gonzalez-Arevalo also detailed the attacks in 2010 in Guatemala that grounded his asylum application:

• Car explosion: While driving through Guatemala City, Gonzalez-Arevalo left his car to buy something. The car then exploded. Police officers investigating the explosion told Gonzalez-Arevalo that they suspected that something was placed inside the car to cause the explosion.

• Wedding Attack: Gonzalez-Arevalo went to a wedding in Guatemala. Some men learned that he would attend and, with the intent to attack him, went to the wedding. Armed with guns, they chased him from the wedding.

Gonzalez-Arevalo did not know the names of the individuals who attacked him. Nor was he aware of how many people were responsible for either attack.

The IJ inquired more about the motivations of Gonzalez-Arevalo's attackers. She asked if he believed that these incidents happened "because [his] father's murderers were sent to jail," and he agreed with that characterization. With that, she then asked if his "problems in Guatemala ... were because of reprisals" from El Vicioso's incarceration and if Gonzalez-Arevalo feared future harm "because of these reprisals." He answered, "Yes," to both questions.

B. Procedural History

The IJ denied Gonzalez-Arevalo's application. First finding him credible, the IJ determined that Gonzalez-Arevalo's "experiences in Guatemala d[id] not rise to the level of persecution." Nor was his proposed PSG cognizable. Even if he met these requirements, the IJ stated that "fear of retribution over personal matters is not a basis for asylum." She concluded that his alleged persecutors were motivated by vengeance for the incarceration of the murderers. That personal motivation meant that the attacks were not on account of a statutorily protected ground, so his experiences in Guatemala could not ground a past or future persecution claim. Because his asylum claim faltered, the IJ denied his withholding of removal claim.²

Gonzalez-Arevalo appealed to the BIA. He challenged the IJ's conclusion that his proposed PSG, which he described on appeal as "Guatemalan males whose family and whom have suffered past persecution, including murder, at the hands of criminal gangs,"³ was inadequate and that he did not show persecution. He also challenged the IJ's conclusion that he was targeted for retribution.

The BIA affirmed. It adopted the IJ's reasoning and supplemented her conclusion that Gonzalez-Arevalo did not show that a protected ground "was or will be at least one central reason for his persecution." The BIA noted that, although "the presence of a non-protected motivation does not render the applicant ineligible for asylum," a "central" reason is not "merely incidental (i.e., minor, casual, or subordinate) or tangential (i.e., superficially relevant)." The BIA then cited Gonzalez-Arevalo's testimony describing the 2010 attacks as "reprisal" for his father and uncle's murderers' incarceration. With that record support, the BIA concluded that the IJ did not clearly err when she found that family membership was not one central reason for these attacks.

This timely petition for judicial review, over which we have jurisdiction, followed. 8 U.S.C. § 1252(a)(1).

II. DISCUSSION

A. Legal Standards

"Where, as here, the BIA adopts and affirms the IJ's ruling but nevertheless examines some of the IJ's conclusions, we review both the BIA and IJ opinions as a unit." Barnica-Lopez v. Garland, 59 F.4th 520, 527 (1st Cir. 2023) (cleaned up) (citation omitted) (quoting Gómez-Medina v. Barr, 975 F.3d 27, 31 (1st Cir. 2020)). And, as here, "[w]e evaluate 'the IJ's decision to the extent of the adoption, and the BIA's decision as to [any] additional ground.'" Esteban-Garcia v. Garland, 94 F.4th 186, 190-91 (1st Cir. 2024) (second alteration in original) (quoting López-Pérez v. Garland, 26 F.4th 104, 110 (1st Cir. 2022)).

We review the agency's legal conclusions de novo. Chun Mendez, 96 F.4th at 64. But we review its factual findings under the substantial evidence standard. Id. Under this highly deferential standard, "we will only disturb the agency's findings if, in reviewing the record as a whole, 'any reasonable adjudicator would be compelled to conclude to the contrary.'" Barnica-Lopez, 59 F.4th at 527 (quoting Gómez-Medina, 975 F.3d at 31). "That the record supports a conclusion contrary to that reached by the [agency] is not enough to warrant upsetting the [agency's] view of the matter; for that to occur, the record must compel the contrary conclusion." Santos Garcia v. Garland, 67 F.4th 455, 460-61 (1st Cir. 2023) (quoting Hincapie v. Gonzales, 494 F.3d 213, 218 (1st Cir. 2007)).

Under the INA, an asylum applicant must prove that he is a "refugee," someone "who is unable or unwilling to return to" his country of origin "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a [PSG], or political opinion." 8 U.S.C. § 1101(a)(42)(A). Persecution in this sense "requires proof of 'a certain level of serious harm (whether past or anticipated), a sufficient nexus between that harm and government action or inaction, and a causal connection to one of th[ose] statutorily protected grounds.'" Barnica-Lopez, 59 F.4th at 527 (quoting Martínez-Pérez v. Sessions, 897 F.3d 33, 39 (1st Cir. 2018)).

To establish eligibility for withholding of removal due to persecution, the applicant must show the same elements as required for the asylum claim but his "burden is even higher." Chun Mendez, 96 F.4th at 64 (quoting Varela-Chavarria v. Garland, 86 F.4th 443, 449 (1st Cir. 2023)). An applicant must show "a clear probability that, if returned to his homeland, he will be persecuted on account of a...