Santos Garcia v. Garland

67 F.4th 455

• Court: Court of Appeals for the First Circuit
• Decided: April 28, 2023
• Docket: 22-1535
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 22-1535

MARCO DANILO SANTOS GARCIA,

Petitioner,

v.

MERRICK B. GARLAND, United States Attorney General,

Respondent.

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

Before

Gelpí, Lynch, and Thompson, Circuit Judges.

Daniel T. Welch, with whom Kevin P. MacMurray, Kristian R. Meyer, and MacMurray & Associates LLC were on brief, for petitioner. Joseph A. O'Connell, Attorney, Department of Justice, Office of Immigration Litigation, with whom Brian M. Boynton, Principal Deputy Assistant Attorney General, and Cindy S. Ferrier, Assistant Director, were on brief, for respondent.

April 28, 2023 LYNCH, Circuit Judge. Marco Danilo Santos Garcia

("Santos") seeks review of the Board of Immigration Appeals ("BIA")

decision of June 21, 2022, affirming the immigration judge's ("IJ")

denial of his applications for asylum and withholding of removal

under sections 208(b)(1)(A) and 241(b)(3)(A) of the Immigration

and Nationality Act ("INA"), 8 U.S.C. §§ 1158(b)(1)(A),

1231(b)(3)(A). The BIA held that there was no error in the IJ's

holdings that: (1) Santos did not meet his burden to show past

persecution because the threats Santos faced in Guatemala "were

not so menacing as to cause significant actual suffering or harm,"

(2) Santos "did not establish that the mistreatment he endured

ha[d] the requisite nexus to a statutorily protected ground," and

(3) Santos "did not show a well-founded fear of future persecution

on account of a statutorily protected ground." Because substantial

evidence supports the BIA's determination and the BIA committed no

errors of law in that ruling, we deny Santos's petition for review.

For the first time on appeal, Santos also purports to raise an

argument based on a particular social group not made to the BIA,

and we dismiss that unexhausted claim for lack of jurisdiction.

I.

Santos, a Guatemalan citizen, crossed the border from

Mexico into the United States on or about April 26, 2016. On July

14, 2016, the Department of Homeland Security vacated its previous

- 2 - Expedited Removal Order1 and issued Santos a Notice to Appear in

removal proceedings, charging him with being subject to removal

under 8 U.S.C. § 1182(a)(6)(A)(i). Santos conceded that he was

subject to removal and admitted the factual allegations in the

Notice to Appear. On March 7, 2017, Santos filed applications for

asylum, withholding of removal, and protection under the

Convention Against Torture.

II.

We describe in general terms Santos's testimony to the

IJ at the June 12, 2019, merits hearing concerning his application

for relief and the arguments in his pre-hearing brief.

Santos testified that he "fled from [Guatemala] because

[his] life was in danger [due to] people threatening [him] --

people [who] gave [him] death threats." Santos claimed that when

he was 23 years old in his hometown of 800 people, members of the

Renewed Democratic Liberty ("Lider") Party threatened him on three

occasions in March and April 2016. He alleged these threats were

due to his support of the FCN political party during the 2015

1 On May 1, 2016, the Department of Homeland Security issued Santos an Expedited Removal Order pursuant to 8 U.S.C. § 1225(b)(1). On July 5, 2016, Santos completed a credible-fear interview with an Asylum Officer, in which he stated that Renewed Democratic Liberty ("Lider") Party supporters in Guatemala had threatened him and demanded money. The Asylum Officer concluded that Santos had a credible fear of persecution or torture in Guatemala and referred his case to Immigration Court.

- 3 - presidential election.2 His support amounted to distribution of

FCN pamphlets from his food truck, attending FCN meetings,

informing members of the community about FCN campaign ideas, and

general undefined support. The FCN candidate won the 2015

presidential election. And in February 2016, Guatemala's Supreme

Electoral Court cancelled the Lider Party for campaign law

violations.

In his pre-hearing brief, Santos asserted that, after

the dissolution of the Lider Party, around March 19, 2016, an

undefined number of Lider Party members, some armed, arrived at

his house and demanded 40,000 quetzales (approximately 5,047 USD).

Santos stated that "[t]hese men blamed [him], as a supporter of

the FCN, for the state of their party and defeat of their electoral

candidate." They threatened to kill Santos in 20 days if he did

not pay. He did not pay that day.

Santos asserted that around March 31, 2016, one Lider

Party supporter dragged him to an alley where other Lider

supporters were. They held him at gunpoint; asked again for that

sum of money; and when he did not have it, kicked his legs and

stomach, and left him. Santos testified that his injuries from

this incident "w[ere]n't anything serious" and were not visible,

and that he "did not" go to the hospital after the attack. Santos

2 FCN stands for "Frente de Convergencia Nacional," which translates to "National Convergence Front."

- 4 - then went to the police. He testified that the police officer

refused to take his report because he "didn't have any proof or

evidence, and then [the police officer] asked [him] too if he was

conscious of what [he] was doing, that [he] was making allegations

against the . . . L[ider] Party." In Santos's earlier declaration,

however, he did not suggest that the police refused to take his

report because it was against the Lider Party; he stated only that

"because [he] had zero evidence [he] could not file a report" and

noted that the town mayor at the time was a Lider Party member.

Santos testified to a third encounter around April 8,

2016, when three Lider Party supporters approached Santos in a

public marketplace. He claimed one drew a weapon and threatened

to kill him if he ever contacted the police again or if he failed

to comply with their money demand. Santos returned to his home.

When asked by the government's attorney why he did not go to

another area of Guatemala, he replied, "I don't have anybody else

in Guatemala." He testified that he was not seriously injured in

the incidents in March-April 2016; that he never had to seek

medical attention; and that Lider Party supporters targeted him

because "they had lost a lot of money because their political party

lost" so "they wanted to recover this lost money." Further, when

the government attorney asked Santos whether "anyone told [him]

- 5 - that the people [who] threatened [him were] currently looking for

[him] in Guatemala," Santos responded, "No."3

The IJ concluded at the hearing that, though Santos was

credible, he did

not me[e]t the very high burden needed for asylum. He . . . never had to seek medical treatment. There was a revenge aspect in this as well, and money. I'm not sure he met the nexus even assuming persecution and the party has been dissolved so I find any fear of future persecution is not on account of political opinion. So I will have to deny the application today under the law.

The IJ issued a written decision denying relief from

removal on July 23, 2019. In support of denial of relief, the IJ

held that the harm Santos suffered at the hands of Lider Party

members in March-April 2016 did "not rise to the level of past

persecution" and that their threats "were not 'so menacing as to

cause significant actual suffering or harm.'" (Quoting Vilela v.

Holder, 620 F.3d 25, 29 (1st Cir. 2010)). Santos "was able to

walk away from each encounter unharmed" and "did not require

medical treatment."

The IJ also found that "the evidence [did] not establish

that [Santos] was targeted on account of his political opinion";

"rather[,] he was targeted in an attempt to extort money." The IJ

3 Santos also conceded that he was arrested for driving under the influence of alcohol in August 2018, that there was an open container in the vehicle when he was stopped by police, and that he could not recall how much alcohol he had consumed.

- 6 - emphasized that the Lider Party had been dissolved by March 2016,

that Santos's FCN Party was in power during the relevant period,

and that "retribution over personal matters is not a basis for

asylum under" the INA.

Third, the IJ found that Santos "failed to establish

that his life or freedom would be threatened in the future in

Guatemala on account of a protected ground" because the Lider Party

had since been dissolved, Santos's FCN Party won the 2015 election,

and Santos only assumed without proof that people were looking for

him in Guatemala.4

In his BIA appeal, Santos maintained that the IJ erred

in denying his asylum claim because "he faced past persecution as

he was threatened by armed men on three separate occasions, and on

one occasion he was also physically assaulted"; "he suffered

persecution on account of his political opinion and membership in

the FCN political party"; and "he established that he has a well-

founded fear of future persecution as the men that attacked him

4 The IJ also concluded that the record did not support the conclusion that "it [was] more likely than not that [Santos] would be singled out and tortured by, or with the acquiescence of, the government of Guatemala, either by their active participation in torture, or by their willful blindness to the acts of private individuals." On appeal, the BIA concluded that Santos waived his Convention Against Torture ("CAT") argument because he did not meaningfully challenge the IJ's determination that he was not eligible for CAT protection. Santos does not develop any challenge to the IJ's or BIA's CAT determinations in his brief, so that claim has been waived. See Sanchez-Vasquez v. Garland, 994 F.3d 40, 45 (1st Cir. 2021).

- 7 - continue to reside in Guatemala and the FCN political party has

now been accused of corrupt practices."

The BIA issued a decision on June 21, 2022, affirming

the IJ's findings that Santos "did not meet his burden of proof

for asylum or withholding of removal." The BIA agreed with the IJ

that (1) "these extortion attempts, though reprehensible, do not

constitute persecution" because Santos "walked away from each

encounter unharmed and never required medical treatment"; (2)

Santos "did not establish that the mistreatment he endured ha[d]

the requisite nexus to a statutorily protected ground" because the

IJ "did not clearly err in finding that the armed individuals'

motivation was extorting [Santos] for monetary gain, and not

because of his political opinion"; and (3) Santos "did not show a

well-founded fear of future persecution on account of a statutorily

protected ground" because Santos "did not establish a continuing

threat" given that the Lider Party had been dissolved, Santos's

party had won the 2015 election, and Santos was "unaware of anyone

continuing to look for him in Guatemala."

III.

A.

We start with Santos's unexhausted claim and dismiss

that claim for lack of jurisdiction. On appeal, Santos argues

that he faced "past persecution on account of his membership as an

Indigenous Guatemalan male of Mam descent." Santos did advert to

- 8 - his indigenous status in his pre-hearing brief before the IJ, and

he claimed that he "risk[s] harm and discrimination on account of

[his] indigenous ethnicity" in his affidavit dated May 6, 2019, in

support of his application for asylum and withholding of removal.

But Santos offered no testimony on his indigenous identity before

the IJ. The IJ, accordingly, made no findings on it. Further,

Santos failed to raise the issue with the BIA. Thus, Santos has

failed to exhaust his administrative remedies, and this court is

"statutorily precluded from reviewing his claim in this regard."

8 U.S.C. § 1252(d)(1); see also Ravindran v. INS, 976 F.2d 754,

761 (1st Cir. 1992) ("Because he could have, but did not, raise

this issue below, petitioner failed to exhaust his administrative

remedies and thus waived his right to be heard on the claim of

persecution on account of membership in a particular social

group."); Fabian-Soriano v. Barr, 925 F.3d 552, 557-58 (1st Cir.

2019) (rejecting petitioner's argument that the IJ committed legal

error because petitioner had not first exhausted administrative

remedies).

B.

As to Santos's preserved challenge to the BIA decision,

we review de novo legal and constitutional issues, "but with some

deference to the agency's reasonable interpretation of statutes

and regulations that fall within its sphere of authority." Chen v.

Holder, 703 F.3d 17, 21 (1st Cir. 2012). We review "the BIA's

- 9 - factual findings for substantial evidence." Dorce v. Garland, 50

F.4th 207, 212 (1st Cir. 2022). The substantial evidence standard

"requires us to accept the agency's factual findings . . . unless

the record is such as to compel a reasonable factfinder to reach

a contrary conclusion." Id. (omission in original) (quoting

Mazariegos-Paiz v. Holder, 734 F.3d 57, 64 (1st Cir. 2013)). We

reverse only if "the evidence points unerringly in the opposite

direction." Ruiz-Escobar v. Sessions, 881 F.3d 252, 259 (1st Cir.

2018) (internal quotation marks omitted) (quoting Segran v.

Mukasey, 511 F.3d 1, 5 (1st Cir. 2007)). "That the record supports

a conclusion contrary to that reached by the BIA is not enough to

warrant upsetting the BIA's view of the matter; for that to occur,

the record must compel the contrary conclusion." Hincapie v.

Gonzales, 494 F.3d 213, 218 (1st Cir. 2007).

Here we deny Santos's petition because the BIA found on

substantial evidence that Santos had not proven that he suffered

past persecution due to his political opinion or that he would

suffer future persecution.

Santos argues that the BIA erred in its finding as to

past persecution. He argues that "he experienced past persecution

in the form of extortion, credible death threats, and physical

assault" due to his membership in the FCN Party. The record does

not compel the conclusion that the IJ and BIA were wrong.

Persecution goes beyond "unpleasantness, harassment, and even

- 10 - basic suffering." Nelson v. INS, 232 F.3d 258, 263 (1st Cir.

2000).

It is true that Santos testified that he was threatened

with death three times during the course of the attempted

extortion. "[C]redible verbal death threats" can amount to

persecution if they are "so menacing as to cause significant actual

suffering or harm." Lobo v. Holder, 684 F.3d 11, 18 (1st Cir.

2012) (quoting Vilela, 620 F.3d at 29); see also Sok v. Mukasey,

526 F.3d 48, 54 (1st Cir. 2008). The IJ did find Santos credible

as to receiving death threats. But there is no finding that those

threats were "credible" threats of death as opposed to threats

intended to frighten him into paying, especially given the lack of

severity of the one assault. Further, Santos has never provided

specific details about the "immediate impact, if any, that these

threats had on him" beyond his decision to come to the United

States. Rodriguez v. Lynch, 654 F. App'x 498, 500 (1st Cir. 2016).

Further, this court has affirmed the BIA's finding of no

past persecution on facts more egregious than these. In Chen v.

Lynch, 814 F.3d 40 (1st Cir. 2016), this court upheld the BIA's

determination of no past persecution even though the petitioner

"was beaten and subsequently taken to the police station where he

was placed in custody, interrogated, further assaulted, and

threatened with forced sterilization." See id. at 42-43. The

petitioner's injuries in Chen, as here, "did not exceed bruising

- 11 - and did not require hospitalization," and though the latter factor

is not dispositive, it "bears on the 'nature and extent' of [the]

injuries and is certainly 'relevant to the ultimate

determination'" of past persecution. Id. at 46 (quoting Vasili v.

Holder, 732 F.3d 83, 89 (1st Cir. 2013)).

Santos argues that the IJ and the BIA "failed to consider

a mixed motive analysis regarding the motivation of [Santos]'s

persecutors" to target him due to his "membership in the FCN

political party." Not so. The IJ stated that Santos must

establish that the protected ground is "at least one central

reason" for the persecution. Substantial evidence easily supports

the determination that Santos did not show that his political

affiliation was "one central reason" for the harm he experienced.

8 U.S.C. § 1158(b)(1)(B)(i). Santos joined the FCN Party in 2015.

At most he "helped organize events for political speakers,

distribute[d] pamphlets at his food stand, and helped organize

fundraising events by participating in soccer tournaments."

Santos's party was in fact victorious. As the IJ found, what was

involved was an attempt, not motivated by his FCN affiliation, to

extort money from Santos and was nothing more than garden variety

extortion.

Santos's final argument is (1) that he was entitled to

a presumption of future persecution and (2) that he established

"an independent well-founded fear of future persecution" based on

- 12 - his FCN membership and country conditions in Guatemala. Because

Santos has not established that he suffered past persecution based

on his political opinion, he is not entitled to the presumption of

future persecution. See Chen, 814 F.3d at 45. Nor does the record

show any well-founded fear of future persecution. Santos testified

that no one has told him that the people who threatened him are

currently looking for him in Guatemala. The Lider Party is no

longer active and has not been since 2016, and the FCN Party won

the 2015 presidential election. Santos has provided no support

for his contention that he might be harmed because the FCN Party

has been accused of corruption. Substantial evidence supports the

agency's finding regarding the police's lack of investigation, and

Santos merely surmises that the police's inaction was motivated by

fear of or collaboration with the Lider Party.

Santos's petition for review is dismissed in part and

denied in part.

- 13 -