FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
Charles Maroun, Jr. for petitioner.
Allison Frayer, Trial Attorney, Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Benjamin C. Mizer, Principal Deputy Acting Assistant
Attorney General, M. Jocelyn Lopez Wright, Acting Assistant
Director, Office of Immigration Litigation, and Melissa
Neiman-Kelting, Senior Litigation Counsel, Office of
Immigration Litigation, for respondent.
Howard, Chief Judge, Thompson and Barron, Circuit Judges.
BARRON, Circuit Judge.
Gilberto Morales-Morales ("Morales") petitions for
review of a decision of the Board of Immigration Appeals
("BIA") denying Morales's requests for asylum,
withholding of removal, and protection under the Convention
Against Torture ("CAT"). We deny the petition.
is a citizen of Guatemala. He entered the United States
unlawfully in 2012. After immigration authorities began
removal proceedings against him, Morales applied for asylum,
withholding of removal, and protection under the CAT.
proceedings before the Immigration Judge ("IJ"),
Morales offered the following account in testimony that the
IJ determined to be credible. Morales joined the Partido
Party in 2011 and began distributing the party's fliers
in Guatemala City approximately twice a week. Roughly a year
later, Morales, along with four other members of the Partido
Party, was beaten by members of a different political party
-- the Lider Party -- who retaliated against Morales for his
refusal to join their ranks and help them with
"publicity." These members of Lider beat him
"unconscious, " such that Morales required
hospitalization. They also broke his arm.
Morales returned home from the hospital, he received
"threatening phone calls." Morales's uncle, the
IJ noted, was also a Partido member and had "disappeared
in May of 2011." The uncle, too, "had been
receiving threatening phone calls and his whereabouts are
did not report either the beating or the phone calls to the
police because "the police are corrupt" and because
he feared retaliation from Lider partisans. Morales also
testified that he did not inform the police about the beating
because "the people who broke his arm would go to jail,
but when they got out, they would seek retribution."
found the following additional facts. First, Morales's
parents remain in Guatemala, but no longer live in Guatemala
City, the country's capital. Second, Morales's
siblings -- two brothers and a sister -- also continue to
reside in Guatemala. Third, Morales "had no
information regarding whether any harm had befallen" the
other members of the Partido Party who were attacked the same
day as Morales.
the IJ denied Morales the relief that he sought. The IJ first
addressed Morales's application for asylum. Pursuant to 8
U.S.C. § 1158(b)(1)(A), an applicant may be granted
asylum "if the Secretary of Homeland Security or the
Attorney General determines that such alien is a refugee
within the meaning of" 8 U.S.C. § 1101(a)(42)(A).
In turn, § 1101(a)(42)(A) requires that, to qualify as a
refugee, "an applicant must prove either past
persecution or a well-founded fear of future persecution if
repatriated, on account of one of five enumerated grounds:
race, religion, nationality, membership in a particular
social group, or political opinion."
Giraldo-Pabon v. Lynch, 840 F.3d
21, 24 (1st Cir. 2016) (citing 8 U.S.C. §
held that Morales had not established past persecution in
Guatemala. Looking to the "frequency of the alleged
harm, " the IJ emphasized that Morales's "one
encounter with members of the Lider Party" -- though it
resulted in a severe beating --"[did] not rise to the
level of [past] persecution." Next, noting that
establishing past persecution "requires evidence that
the government participated in, or at least acquiesced in,
the alleged harm, " the IJ held that Morales had not
presented evidence sufficient to show that the Guatemalan
government was unable or unwilling "to control the
conduct of private actors." The IJ also concluded that
Morales could not establish a likelihood of future
persecution in Guatemala, given that his "parents and
siblings remain unharmed" in that country. Nor, the IJ
stated, did Morales offer any information about the fate ...