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Alvizures-Gomes v. Lynch

United States Court of Appeals, First Circuit

July 21, 2016

OMAR IVAN ALVIZURES-GOMES, Petitioner,
v.
LORETTA E. LYNCH, ATTORNEY GENERAL, Respondent.

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

          Hans J. Bremer and Bremer Law & Associates, LLC on brief for petitioner.

          Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, United States Department of Justice, Blair T. O'Connor, Assistant Director, Office of Immigration Litigation, and John F. Stanton, Trial Attorney, Office of Immigration Litigation, on brief for respondent.

          Before Torruella, Selya and Lynch, Circuit Judges.

          SELYA, Circuit Judge.

         The petitioner, Omar Ivan Alvizures-Gomes, seeks judicial review of a final order of the Board of Immigration Appeals (BIA) denying his application for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (CAT). Detecting no error, we deny the petition.

         The relevant facts are uncomplicated. The petitioner is a Guatemalan national who resided there until September 5, 2011, when he entered the United States illegally. He was soon apprehended and placed in removal proceedings. See 8 U.S.C. § 1227(a)(1)(B). Conceding removability, he cross-applied for asylum, withholding of removal, and CAT protection. In support, he claimed both past persecution and fear of future persecution on account of his anti-gang political opinion and his membership in a particular social group. See id. § 1101(a)(42)(A). He further claimed a likelihood that, if repatriated, the government would condone his torture at the hands of gang members. See 8 C.F.R. § 1208.16(c).

         On November 7, 2013, the petitioner testified before an immigration judge (IJ) that his flight to the United States was motivated by a fear of gangs in his native country after he had resolutely rejected their recruitment efforts. He explained that this fear developed following several in-person confrontations and his receipt of three threatening letters. He also proffered a miscellany of documents, including country conditions reports, aimed at showing what life was like in Guatemala.

         At the conclusion of the hearing, the IJ assumed that the petitioner was generally credible, but nonetheless denied him any relief because he had not established his refugee status. The IJ also found that the petitioner had failed to show a likelihood that Guatemalan authorities would acquiesce in torture directed at the petitioner.

         The petitioner unsuccessfully appealed to the BIA. Following the BIA's adverse decision, he prosecuted the instant petition for judicial review.

         Judicial oversight in immigration cases typically focuses on the final decision of the BIA. See Cabrera v. Lynch, 805 F.3d 391, 393 (1st Cir. 2015). Such an approach is in order where, as here, "the BIA has conducted an independent evaluation of the record and rested its affirmance of the IJ's decision on a self-generated rationale." Pulisir v. Mukasey, 524 F.3d 302, 307-08 (1st Cir. 2008).

         Throughout our analysis of the BIA's decision, "[c]laims of legal error engender de novo review, with some deference to the agency's expertise in interpreting both the statutes that govern its operations and its own implementing regulations." Cabrera, 805 F.3d at 393. Factual findings are reviewed for compliance with the substantial evidence standard. See López-Castro v. Holder, 577 F.3d 49, 52 (1st Cir. 2009). "Under this highly deferential standard, we must accept the BIA's findings so long as they are 'supported by reasonable, substantial, and probative evidence on the record considered as a whole.'" Nikijuluw v. Gonzales, 427 F.3d 115, 120 (1st Cir. 2005) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)). Such findings will be disturbed only "if the record is such as to compel a reasonable factfinder to reach a contrary determination." See Jianli Chen v. Holder, 703 F.3d 17, 21 (1st Cir. 2012).

         Against this backdrop, we turn to the petitioner's specific claims, starting with his asylum claim. In a quest for asylum, the devoir of persuasion rests with the asylum-seeker to establish that he is a refugee as defined by the Immigration and Nationality Act. See Villa-Londono v. Holder, 600 F.3d 21, 24 (1st Cir. 2010). "A refugee is a person who cannot or will not return to her home country 'because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.'" Olujoke v. Gonzales, 411 F.3d 16, 21 (1st Cir. 2005) (quoting 8 U.S.C. § 1101(a)(42)(A)).

         The petitioner tries to wedge his asylum claim into this template in two ways. To begin, he complains about both persecution and a well-founded fear of future persecution based on his anti-gang political opinion. Alternatively, he complains about both persecution and a well-founded fear of future persecution based on his membership in a discrete social group, namely, individuals returning to Guatemala from the United States while leaving behind family members in the United States.

         With respect to his political opinion argument, the petitioner asserts that he was persecuted in Guatemala after he rebuffed recruitment efforts by gang members. Building on this foundation, he insists that his refusal to join the ...


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