FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
J. Bremer and Bremer Law & Associates, LLC on brief for
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.
Torruella, Selya and Lynch, Circuit Judges.
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.
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).
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.
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.
petitioner unsuccessfully appealed to the BIA. Following the
BIA's adverse decision, he prosecuted the instant
petition for judicial review.
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.
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).
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. §
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
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 ...