Not for Publication in West's Federal Reporter

United States Court of Appeals For the First Circuit

No. 19-1402

MONICA NOLASCO-YOK,

Petitioner,

v.

WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL,

Respondent.

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

Before

Howard, Chief Judge, Lynch and Lipez, Circuit Judges.

Daniel T. Welch, with whom Kevin MacMurray and MacMurray & Associates were on brief, for petitioner. Rachel Browning, with whom Joseph H. Hunt, Assistant Attorney General, Civil Division, Jessica E. Sherman, Senior Litigation Counsel, Office of Immigration Litigation, and Juria L. Jones, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, were on brief, for respondent.

February 26, 2020 LIPEZ, Circuit Judge. Monica Nolasco-Yok petitions for

review of a ruling by the Board of Immigration Appeals ("BIA")

declining to reconsider its decision affirming denial of her

application for asylum, withholding of removal, and relief under

the Convention Against Torture. Our review is governed by the

"extremely deferential" abuse-of-discretion standard, under which

we must uphold the BIA's decision unless it is "arbitrary,

irrational, or contrary to law." See Liu v. Mukasey,

(1st Cir. 2009) (quoting Abdullah v. Gonzales,

(1st Cir. 2006)). Finding none of those attributes in the BIA's

decision, we deny the petition for review.

We recount the facts relevant to our disposition.

Nolasco-Yok is a native and citizen of Guatemala who entered the

United States without inspection or admission in 2014. After the

Department of Homeland Security initiated removal proceedings

against her, Nolasco-Yok filed an application for relief from

removal. Her application asserted that she had been persecuted by

gang members in Guatemala on the basis of her membership in her

nuclear family, a protected social group.1 She submitted a sworn

1Nolasco-Yok argues extensively in her petition that Matter of L-E-A-,

(A.G. 2019), a recent decision that arguably calls into question the cognizability of certain family- based asylum claims, is not binding on this court. This argument is irrelevant because neither the BIA nor the IJ relied on Matter of L-E-A-, and both assumed that family constitutes a particular social group under the Immigration & Nationality Act. The government has also disclaimed any reliance on Matter of L-E-A-.

- 2 - declaration stating that the gang threatened her as retaliation

for her sister's refusal to join the gang, even after her sister

was raped and threatened by members of the gang.

However, at her merits hearing, Nolasco-Yok told a

different story: on four occasions, her attorney asked her why

the gang members had threatened her, and all four times she stated

that their threats were designed to recruit her to help them sell

drugs. Nolasco-Yok did testify, consistent with her declaration,

that her sister had been raped by gang members in Guatemala who

sought to recruit her sister to the gang, but not once did she

state that her family membership was the reason for her

persecution. No witnesses other than Nolasco-Yok testified at the

hearing or supplied affidavits.

The Immigration Judge ("IJ") assumed Nolasco-Yok to be

a credible witness, but in light of her oral testimony, concluded

that she had not demonstrated that her family membership

constituted a "central reason" for the gang's threats. In her

discussion of Nolasco-Yok's hearing testimony, the IJ stated that

gang members raped her sister and that they tried to recruit both

Nolasco-Yok and her sister to the gang. The IJ did not mention

the order in which the recruitment efforts and the rape of Nolasco-

Yok's sister occurred.

The BIA affirmed the IJ's decision in a brief opinion

that adopted the IJ's factual findings and legal reasoning. The

- 3 - BIA's opinion recounted the IJ's description of Nolasco-Yok's

testimony as follows:

The Immigration Judge assumed that the respondent was a credible witness, and she testified that while living in Guatemala, gang members told her and her sister that if they did not join their gang, the gang would kill them (IJ at 4). The respondent's sister was subsequently raped by gang members, and both the respondent and her sister continued to receive written death threats from the gang (IJ at 4-5).

Nolasco-Yok filed a motion for reconsideration, focusing

primarily on the timeline of events related to her sister's rape.2

First, she asserted that the IJ's decision granted insufficient

weight to the fact that gang members raped her sister before they

began threatening Nolasco-Yok. By her logic, adequate

consideration of that order of events would have lent credence to

her argument that the gang threatened her as retaliation for her

sister's refusal to join the gang. Then, Nolasco-Yok argued that

the BIA's decision exacerbated that deficiency by actually

distorting the timeline of events by stating that her sister was

raped after the threats began against Nolasco-Yok.

The BIA issued an order acknowledging the error but

denying reconsideration on that basis. Specifically, the BIA

2Nolasco-Yok's motion for reconsideration also asserted that the BIA applied the wrong standard of proof to her asserted fear of future persecution. She does not pursue this issue in her petition.

- 4 - concluded that the timeline, even properly construed, was

insufficient to overcome Nolasco-Yok's hearing testimony that the

gang targeted her because they wanted her to join them, not because

of her family status. Nolasco-Yok asserts that the BIA's failure

to substantively correct for this error was an abuse of discretion.

We disagree. The IJ's decision to accord more weight to

Nolasco-Yok's own explanation for the gang's threats than any

alternative explanation that could be derived from the timeline

was within its discretion as the factfinder. See Pan v. Gonzales,

(1st Cir. 2007) ("So long as the IJ has given

reasoned consideration to the evidence as a whole, made supportable

findings, and adequately explained her reasoning, no more is

exigible."). That is true even though the timeline arguably

supported other evidence submitted by Nolasco-Yok -- namely her

application and sworn declaration -- because the IJ was likewise

entitled to discount the value of those uncorroborated written

submissions and accord more weight to Nolasco-Yok's oral

testimony. See Avelar Gonzalez v. Whitaker,

, 826–27

(1st Cir. 2018) (holding that even in the absence of an adverse

credibility finding, a court may accord less weight to

uncorroborated evidence submitted by an asylum applicant); see

also Muñoz-Monsalve v. Mukasey,

(1st Cir. 2008)

(explaining that an IJ may give different weight to different

pieces of evidence).

- 5 - In other words, in light of Nolasco-Yok's hearing

testimony, the IJ's failure to specify the timeline, and the BIA's

subsequent error with respect to it, did not matter. Nolasco-Yok

simply did not make her case that she was persecuted because of

her relationship to her sister, i.e., on the basis of her family

membership. Hence, neither the IJ nor the BIA was required to

conduct a mixed motive analysis -- there was no need to assess

whether family membership was a central reason for Nolasco-Yok's

persecution when the IJ and BIA both properly concluded that it

was not a reason at all. Even so, to the extent the IJ and BIA

referred to the mixed motive doctrine, both clearly understood

that family membership only had to be a central reason for Nolasco-

Yok's persecution.

Accordingly, we cannot say that the BIA's denial of

Nolasco-Yok's motion to reconsider was an abuse of discretion.

Nolasco-Yok's petition is therefore denied.

- 6 -