PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS.
Lydia M. Sanchez on brief for petitioner.
Sui P. Wong, Trial Attorney, Office of Immigration Litigation, United States Department of Justice Civil Division, with whom Joyce R. Branda, Acting Assistant Attorney General, and Anthony W. Norwood, Senior Litigation Counsel, were on brief, for respondent.
Before Howard, Chief Judge, Thompson and Barron, Circuit Judges.
THOMPSON, Circuit Judge.
Petitioner Elmer Humberto Paiz-Morales, a native of Guatemala who entered the United States unlawfully in 1993, appeals from the Board of Immigration Appeals's (" BIA" ) decision affirming an Immigration Judge's (" IJ" ) denial of his application for asylum and withholding of removal. For the reasons expressed below, we deny the petition.
In April 1998, Paiz-Morales filed an application for asylum and withholding of removal. In October of that year, the Immigration and Naturalization Service (" INS" ) served him with a Notice to Appear for a removal hearing. When Paiz-Morales failed to appear, a removal order was issued in absentia. In 2008, Paiz-Morales moved to reopen the order of removal, which was granted. Paiz-Morales then requested asylum, withholding of removal, protection under the Convention Against Torture (" CAT" ), and voluntary departure. A hearing was held on June 11, 2012, at which Paiz-Morales testified.
Paiz-Morales's persecution claim stemmed from actions related to the Guatemalan Civil War. In particular, he testified that he left Guatemala before he turned eighteen because anti-government guerillas came to his house on several occasions to threaten him into cooperating with them. On one occasion, according to Paiz-Morales, the guerillas held him for about a week. Although he was released, the guerillas returned to assault him and to persuade him to drive a truck for them. According to Paiz-Morales, the guerillas returned several times, threatened his family, and beat him. During his last encounter with the guerillas, he received a cut on his neck. Paiz-Morales left Guatemala for the United States in February 1993, where he lived for a time in California before moving to Massachusetts.
Following the hearing, the IJ rendered an oral decision finding Paiz-Morales to be credible, and granting him voluntary departure, but holding that he had failed to meet his burden of showing that he was entitled to asylum, withholding of removal, or CAT protection. Specifically, the IJ found that Paiz-Morales could not establish a nexus between his past harm and a protected ground. The IJ found that Paiz-Morales had not offered any evidence that he had suffered torture at the hands of the Guatemalan government, nor that the government allowed others to torture him. Finally, the IJ found that Paiz-Morales had not met his burden of proving past persecution and did not have an objectively reasonable fear of future persecution.
Paiz-Morales appealed the IJ's decision to the BIA. He persisted in arguing that he had established a nexus between his past persecution by guerillas and a protected ground, and now also argued that he reasonably feared future persecution due to his membership in a particular social group consisting of " members that oppose gang membership." He claimed that " gang members know which persons in society are against their philosophies because gang members themselves wear certain clothing, have tattoos on their bodies and have easily identifiable signs of gang membership on their persons or bodies."
In its review, the BIA affirmed the IJ's decision, finding that Paiz-Morales had failed to demonstrate a protected ground to go along with his alleged past persecution by guerillas or (on the future persecution front) that " members that oppose gang membership" is a legally cognizable social group. Further, the BIA stated that because Paiz-Morales had failed to carry his burden of showing past persecution or a well-founded fear of future persecution (required for asylum), he also failed to meet the higher standard required for withholding of removal. Finally, the BIA noted that Paiz-Morales did not " specifically or meaningfully challenge" the IJ's determination that he was not eligible for protection under CAT.
This petition followed. In it, Paiz-Morales argues that he reasonably fears future persecution based on his membership in a particular social group, which he defines as " ...