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Marlene Lisbeth Arevalo-Giron v. Eric H. Holder

January 31, 2012



The opinion of the court was delivered by: Selya, Circuit Judge.

Before Lynch, Chief Judge, Torruella and Selya, Circuit Judges.

The petitioner, Marlene Lisbeth Arevalo-Giron, is a Guatemalan national. She seeks judicial review of a final order of the Board of Immigration Appeals (BIA) denying her application for withholding of removal. After careful consideration, we deny the petition.

The petitioner entered the United States on November 1, 1997, without inspection. Some ten years later, the Department of Homeland Security discovered her presence and initiated removal proceedings against her. See 8 U.S.C. § 1182(a)(6)(A)(i); id. § 1229a(a)(2).

Before the immigration judge (IJ), the petitioner conceded removability but cross-applied for asylum, withholding of removal, and protection under the United States Convention Against Torture (CAT). In support, she asserted that if returned to Guatemala, she would face persecution on account of her status as either a single woman with perceived wealth or a former "child of war." The IJ determined that her claim for asylum was time-barred; denied withholding of removal on the ground that she had failed to demonstrate a likelihood of persecution in Guatemala on account of a statutorily protected status; and dismissed her entreaty for CAT relief because she had not shown any governmental involvement in the feared harm.

The BIA affirmed the IJ's decision. This timely petition for judicial review followed. In it, the petitioner challenges only the denial of withholding of removal.*fn1

Because the BIA added its own gloss to the IJ's reasoning, we review the two decisions as a unit. See Lopez Perez v. Holder, 587 F.3d 456, 460 (1st Cir. 2009). In conducting that review, we test the agency's factual findings, including credibility determinations, under the familiar substantial evidence rule. Morgan v. Holder, 634 F.3d 53, 56-57 (1st Cir. 2011). This rule requires us to accept all factual findings that 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)) (internal quotation marks omitted). In other words, we must uphold such a finding unless the record compels a contrary conclusion. See 8 U.S.C. § 1252(b)(4)(B); Sompotan v. Mukasey, 533 F.3d 63, 68 (1st Cir. 2008). By contrast, we review legal conclusions de novo, ceding some deference, however, to the agency's interpretation of statutes and regulations that fall within its purview. See Mendez-Barrera v. Holder, 602 F.3d 21, 24 (1st Cir. 2010).

To prove an entitlement to withholding of removal, an alien bears the burden of demonstrating a clear probability that her life or freedom would be threatened in her homeland on account of her race, religion, nationality, membership in a particular social group, or political opinion. See 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 208.16(b); see also Morgan, 634 F.3d at 60. This burden can be carried in two ways: the alien can show either that she has suffered past persecution (giving rise to a rebuttable presumption of future persecution) or that, upon repatriation, a likelihood of future persecution independently exists. See Lopez-Castro v. Holder, 577 F.3d 49, 52 (1st Cir. 2009); 8 C.F.R. § 208.16(b)(1)-(2). Regardless of which path the alien travels, she must establish a connection between the feared harm and one of the five statutorily protected grounds. See Lopez Perez, 587 F.3d at 462; Lopez-Castro, 577 F.3d at 54.

In the case at hand, the petitioner claims that if she returns to Guatemala, she will be persecuted due to her membership in either of two social groups: single women perceived to have substantial economic resources*fn2 or former children of war. We doubt whether either group is legally cognizable. See Mendez-Barrera, 602 F.3d at 25 (limning requirements for cognizable social group); see also Scatambuli v. Holder, 558 F.3d 53, 59 (1st Cir. 2009) (suggesting that "affluent Guatemalans" do not compose a cognizable group). But we need not make so broad a holding to resolve the petitioner's claim. Rather, we uphold the agency's finding that any potential hardship faced by the petitioner in Guatemala would be unrelated to her membership in either of these purported social groups.

Refined to bare essence, the petitioner makes two arguments. First, she attempts to create a presumption of future persecution by describing incidents and facts that she characterizes as past persecution: the murder of her father by an unknown assailant; the drafting of her brothers into the civil patrol; and her lack of education. The agency determined that these hardships were the result of Guatemala's horrific civil war, not the petitioner's membership in the putative social group comprising former children of the war. This determination is supported by substantial evidence or, more precisely, by the absence of anything in the record linking the described incidents and facts to any particular status. For aught that appears, the petitioner was simply in the wrong place at the wrong time.

We note, moreover, that the petitioner herself testified that her father was not a member of either the army, the guerillas, or the civil patrol. This testimony supports the agency's determination that he was a random casualty of the civil war. By the same token, the petitioner's lack of education and her brothers' compelled participation in the civil patrol -- to the extent that these facts might conceivably constitute persecution at all, cf. Aguilar-Solis v. INS, 168 F.3d 565, 572 (1st Cir. 1999) ("Danger resulting from participation in general civil strife, without more, does not constitute persecution.") -- were never tied to the petitioner's purported status as a former "child of war." These deficits are fatal to her claim of past persecution. See Lopez Perez, 587 F.3d at 462-63 (rejecting claim for withholding of removal where record lacked evidence that past persecution resulted from protected status).

The petitioner's remaining claim is no more robust. She asserts that, if removed, she will be targeted by violent gangs in Guatemala because she is a single woman perceived to have substantial economic resources. To bolster this claim, she testified that her family members were the victims of gang-related robberies, and she provided documentation regarding the prevalence of violence against women in Guatemala. The agency concluded, however, that the violence in Guatemala is indiscriminate and that the gangs do not target any particular social group. This conclusion is fully supported by the record.

We need not tarry. There is no evidence in the record that the gangs specifically target women. The petitioner herself never testified to that effect; to the contrary, she stated that the gangs were only interested in increasing their wealth.

Nor does the State Department country conditions report cited by the petitioner materially alter the decisional calculus. This report describes how violence against women is, regrettably, an ongoing problem in Guatemala. Nevertheless, the report does not focus on economic considerations but, rather, suggests that the violence in Guatemala, though widespread, is not aimed at any particular segment of society. See Palma-Mazariegos v. Gonzales, 428 F.3d 30, 37 (1st Cir. 2005) (rejecting withholding of removal claim where State Department report "attests that the threat of violence afflicts all Guatemalans to a roughly equal extent, regardless of their membership in a particular group or class"). ...

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