Loaiza Archila v. Holder

495 F. App'x 98
CourtCourt of Appeals for the First Circuit
DecidedNovember 16, 2012
Docket12-1117
StatusUnpublished
Cited by3 cases

This text of 495 F. App'x 98 (Loaiza Archila v. Holder) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Loaiza Archila v. Holder, 495 F. App'x 98 (1st Cir. 2012).

Opinion

STAHL, Circuit Judge.

Hector Rene Loaiza petitions for review of the denial by the Board of Immigration Appeals (BIA) of his applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Because the BIA’s decision is sup *99 ported by substantial evidence, we deny the petition.

I. Background

Loaiza, a citizen of Guatemala, entered the United States without inspection on January 28, 1993. Five months later, he applied for asylum and withholding of removal, citing the danger from paramilitary and guerrilla groups in Guatemala as the reason for his application. In May 2008, he was interviewed by an asylum officer. Later that year, after being served with a Notice to Appear, Loaiza conceded remov-ability, renewed his request for asylum and withholding, and added a request for CAT protection. He appeared with counsel for a merits hearing before an Immigration Judge (IJ) in February 2010.

At the merits hearing, Loaiza testified about, and produced documentary evidence of, various threats and acts of violence directed at his family and neighbors by clandestine groups affiliated with the Guatemalan military or communist guerrilla organizations. Loaiza’s father was tortured, and his brother and brother-in-law were murdered. More than once, Loaiza was forced to flee his home to avoid forced recruitment or violence at the hands of these clandestine groups. A psychologist testified that these experiences had traumatized Loaiza, leaving him with symptoms of Post-Traumatic Stress Disorder.

The IJ denied Loaiza’s application. He credited Loaiza’s testimony, but found that Loaiza had failed to show a nexus between his fear of persecution upon returning to Guatemala and his race, religion, nationality, membership in a particular social group, or political opinion, as required to justify asylum or withholding of removal. See Mayorgar-Vidal v. Holder, 675 F.3d 9, 13 (1st Cir.2012). He also found that Loai-za’s CAT claim failed because Loaiza had not shown that he would be tortured in Guatemala.

On appeal, the BIA agreed with the IJ that Loaiza had failed to show that any past or feared future persecution was on account of a protected ground. The BIA assumed that Loaiza’s family could be a particular social group, but concluded that he had not shown a link between his fear of future persecution and his family membership. Likewise, the BIA found no evidence to support Loaiza’s claim that he was persecuted because the clandestine groups imputed a political opinion of “neutrality” to Loaiza and his family. Finally, the BIA agreed with the IJ that Loaiza had not shown sufficient evidence that the Guatemalan government would torture him or acquiesce in his torture if he returned.

II. Discussion

Our review of the BIA’s decision is deferential. The BIA’s “findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Thus, we will “accept the BIA’s findings so long as they are ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole.’ ” Scatambuli v. Holder, 558 F.3d 53, 58 (1st Cir.2009) (quoting Sharari v. Gonzáles, 407 F.3d 467, 473 (1st Cir.2005)). We review the BIA’s legal interpretations de novo. See id. Where, as here, the BIA affirms and elaborates on the IJ’s findings, we review both decisions. Chanthou Hem v. Mukasey, 514 F.3d 67, 69 (1st Cir.2008).

To be eligible for asylum, an applicant must establish a well-founded fear that he will be persecuted upon repatriation on account of a protected ground: race, religion, nationality, social group membership, or political opinion. Mayorga-Vidal, 675 F.3d at 13. A fear is well-founded if it is *100 both genuine and objectively reasonable. Mendez-Barrera v. Holder, 602 F.3d 21, 25 (1st Cir.2010). An applicant seeking withholding of removal must clear the higher bar of showing that future persecution on account of one of the statutory grounds is more likely than not to occur. Mayorga-Vidal, 675 F.3d at 13. To satisfy the on-account-of requirement, an applicant must provide at least “some evidence,” whether direct or circumstantial, of his persecutors’ motives. I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (emphasis omitted).

Before this court, Loaiza asserts that the BIA erred by finding that he failed to show a nexus between the persecution he fears in Guatemala and either his family membership or an imputed political opinion of neutrality. He also suggests — for the first time — that he was targeted as a member of a social group comprised of “persons who resist clandestine groups.” Because this novel argument was not raised before the BIA, we will not consider it. See Silva v. Gonzales, 463 F.3d 68, 72 (1st Cir.2006) (“Under the exhaustion of remedies doctrine, theories insufficiently developed before the BIA may not be raised before this court.”). Likewise, because Loaiza makes no more than a cursory reference to his CAT claim, that claim is waived. See Morgan v. Holder, 634 F.3d 53, 60 (1st Cir.2011) (deeming abandoned a “wholly undeveloped” CAT claim). Thus, we turn to Loaiza’s family-membership and political-opinion claims.

Family membership can constitute membership in a particular social group for asylum purposes. “[T]o ground a viable asylum claim, that family membership must be at the root of the persecution, so that family membership itself brings about the persecutorial conduct.” Ruiz v. Mukasey, 526 F.3d 31, 38 (1st Cir.2008). We cannot conclude that the record compels such a conclusion here. Loaiza testified that multiple members of his family were the victims of troubling incidents of violence, intimidation, and even murder, but he did not establish that they were targeted specifically because of their kinship. See id. (noting that “it is not enough merely to show that multiple members of a single family had negative experiences”). On this record, it may be a plausible inference that the Loaiza family was targeted en masse because of some family members’ unwillingness to pick a side in the government-guerrilla conflict, but it is also plausible that, as the BIA concluded, they were simply victims of the chaotic lawlessness that prevailed in Guatemala. See Escobar v. Holder,

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