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Morales-Morales v. Sessions

United States Court of Appeals, First Circuit

May 22, 2017

MARIO GILBERTO MORALES-MORALES, Petitioner,
v.
JEFFERSON B. SESSIONS, III, Attorney General of the United States, [*] Respondent.

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

          George 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.

          Before Howard, Chief Judge, Thompson and Barron, Circuit Judges.

          BARRON, Circuit Judge.

         Mario 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.

         I.

         Morales 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.

         In the 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.

         After 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 still unknown."

         Morales 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."

         The IJ 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.

         Nevertheless, 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. § 1101(a)(42)(A)).

         The IJ 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 ...


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