United States Court of Appeals For the First Circuit

No. 19-1006

ARMINDA SEDEMA POJOY-DE LEÓN; BILDER AVDIEL DE LEÓN-POJOY,

Petitioners,

v.

WILLIAM P. BARR, United States Attorney General,

Respondent.

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

Before

Lynch and Lipez,* Circuit Judges.

Kevin MacMurray, Daniel T. Welch, and MacMurray & Associates, on brief for petitioners. Sabatino F. Leo, Senior Litigation Counsel, U.S. Department of Justice, Office of Immigration Litigation, Civil Division, Joseph H. Hunt, Assistant Attorney General, Civil Division, and Anthony P. Nicastro, Assistant Director, Office of Immigration Litigation, on brief for respondent.

December 21, 2020

* While this case was submitted to a panel that included Judge Torruella, he did not participate in the issuance of the panel's opinion. The remaining two panelists therefore issued the opinion pursuant to

(d). LIPEZ, Circuit Judge. Petitioner Arminda Sedema Pojoy-

De León ("Pojoy"),1 a native and citizen of Guatemala, challenges

an order of the Board of Immigration Appeals ("BIA") denying her

applications for asylum, withholding of removal, and protection

under the United Nations Convention Against Torture ("CAT").

After a careful review of the record, we deny the petition.

I.

We draw the facts from the evidence in the administrative

record, including Pojoy's asylum application and her testimony

before the Immigration Judge ("IJ").

A. Background

Pojoy and her minor son resided in Guatemala until June

13, 2014, when they entered the United States without inspection.

They were apprehended two days later and placed in removal

proceedings. On September 3, 2014, Pojoy filed an application for

asylum and withholding of removal on behalf of herself and her

son, claiming both past persecution and fear of future persecution

based on her "[p]olitical opinion" and her "[m]embership in a

particular social group." Pojoy also claimed a likelihood that,

if returned to Guatemala, she would be subjected to torture because

1 Pojoy is the lead petitioner. She is referred to as Arminda Sedema Pojoy-Lopez in the administrative record and in the parties' briefs to this Court. Bilder Avdiel De León-Pojoy, her minor son, maintains a derivative claim.

-2- "[i]t is dangerous and the government is corrupt," and Pojoy was

"not confident the police or the judicial system in Guatemala [was]

willing or able to protect [her] from the violence that is so

prevalent in that country." Pojoy's affidavit in support of her

application also stated that she feared for her life because of

"violence between different villages and gangs" in Guatemala.

In her memorandum of law to the IJ in support of her

asylum claim, Pojoy asserted persecution based on membership in a

social group consisting of "Guatemalan women," who, she claimed,

"are subject to violence and discrimination, but are unable to

receive official protection." She argued, relying on a U.S.

Department of State Report on Country Conditions in Guatemala,

that Guatemalan society perceives women as inferior to men and

tolerates their mistreatment. In an amended affidavit supporting

her asylum claim, Pojoy added details about her father. Pojoy

averred that when her mother was pregnant with her, her father

threatened to kill her mother if she carried the pregnancy to term.

According to Pojoy, her father eventually left for the United

States but was later deported after being "accused of rape." After

her father returned to Guatemala, when Pojoy was nineteen years

old, she started "to see him around town, but [she] never talked

to him." Pojoy also stated that her female cousin had been raped

-3- and killed by a group of gang members, and "[o]ne of the killers

[was] walking around free."

On November 16, 2017, Pojoy testified before an IJ that

she left Guatemala because she was afraid of what her father could

do to her. She repeated the assertion contained in her amended

affidavit that her father had tried to kill her mother when her

mother was pregnant with her, and she expanded on her encounters

with her father. Pojoy testified that she first met him in 2000,

at age thirteen, when he showed up one day in front of Pojoy's

school and introduced himself as her father. After he then moved

to the United States, she did not see him again until after his

deportation back to Guatemala in 2006 or 2007, when Pojoy was

nineteen or twenty years old. Pojoy stated that during that second

encounter her father told her that she "look[ed] very much like

[her] mother" and "grabbed [her] by the nose," which "really

hurt."2 Pojoy testified that she had a third and last in-person

interaction with her father in 2009, when he came to her home,

grabbed her by the nose again, and "repeated that [she] look[ed]

very much like [her] mother," which made her feel afraid.

Pojoy said that her father started calling her in 2012,

after his girlfriend passed away, and during those phone

2 Pojoy's mother died of cancer in 2003, when Pojoy was sixteen years old.

-4- conversations he asked Pojoy for money and requested that she move

in with him because she "was his daughter."3 She also testified

that during one of those phone conversations her father threatened

to kidnap her and her son if she did not agree to move in with

him. When she told her aunt in 2013 about her father's calls, her

aunt warned her to be careful around him and told her about his

attempts against her mother's life. Pojoy then stopped responding

to her father's phone calls. She also testified that she was

afraid of him because he "always carried a pistol in his waist"

and drank "a lot."

Pojoy explained that she did not contact the police

because "the police do[n't] do anything ever in [Guatemala]" and

they do "not believe anything that women say."4 In 2014, after

her father told her that he was planning to move to the town where

she lived, she decided to leave for the United States. When her

attorney asked her what she thought would happen if she returned

to Guatemala, Pojoy responded that her father would look for her

3 Pojoy testified that when her father asked her to move in with him, she responded, "later." According to Pojoy, she did not dare tell him "no" because she was afraid of how he would react. 4 Pojoy testified that her cousin had reported to the Guatemalan police that she was being threatened by "some guys," but the police dismissed her complaint, telling her that the men were "just playing." Her cousin was later raped and murdered and two of the men involved in her cousin's murder were out of prison.

-5- and make her move in with him. She also stated she was afraid to

go back to Guatemala because of its high rate of delinquency and

violence.

During cross-examination, Pojoy admitted that she had

not mentioned in her original asylum application her father's

treatment of her despite her claim at the hearing that she was

seeking asylum and withholding of removal because of her fear of

him. She also acknowledged that she last had in-person contact

with her father in 2009. Hence, when she left for the United

States in 2014, she had not seen him in five years. Finally,

Pojoy noted that she had been in counseling "for some time" and

had been diagnosed with Posttraumatic Stress Disorder ("PTSD")

stemming from the "traumatic experiences" she had during her

"childhood and adolescence," including her cousin's death, and

"violence [she had] witnessed in Guatemala."5

B. Decisions of the IJ and BIA

The IJ denied Pojoy's request for relief and protection

from removal. First, the IJ found that Pojoy's testimony was not

credible because she had testified about events and details that

5 Beyond her testimony, Pojoy provided several supporting documents to the IJ, including her original affidavit accompanying her asylum application, her amended affidavit, a country conditions report from the Department of State, and letters from family members and her therapist.

-6- she had failed to mention in her asylum application or the

supporting affidavits she had submitted prior to the hearing.6

However, for purposes of the analysis, the IJ assumed that Pojoy

had testified credibly. With regard to asylum, the IJ determined

that Pojoy had not established that she was persecuted or had a

"well-founded fear" of future persecution because her father's

actions toward her did not "rise above unpleasantness, harassment,

and even basic suffering." Additionally, the IJ held that, even

assuming Pojoy's proposed group of Guatemalan women was a

cognizable social group for purposes of the asylum analysis, Pojoy

had not established "that a central reason for her being targeted

by her father [was] because she is a Guatemalan woman." Rather,

the IJ found that Pojoy's father targeted her because she was "his

daughter." Thus, she failed to meet the required nexus between

the alleged persecution and a protected ground.

For the same reasons, the IJ held that Pojoy had not

established eligibility for withholding of removal, noting that

because she could not establish eligibility for asylum under the

"well-founded fear standard," it "follow[ed] that she also

fail[ed] to demonstrate eligibility for withholding of removal

under the more stringent 'more likely than not' standard."

6 The IJ, however, did find credible the evidence concerning the rape and murder of Pojoy's cousin.

-7- Finally, while the IJ found that there was a "prevalence of

violence against women and unlawful violence committed by police"

in Guatemala, the IJ concluded that Pojoy had failed to show a

likelihood that Guatemalan authorities would acquiesce to, or

engage in, torture against her.

Pojoy appealed to the BIA. Instead of addressing the

IJ's adverse credibility finding, the BIA upheld the IJ's

determination that, even if Pojoy had testified credibly, she had

not established eligibility for asylum, and by extension,

withholding of removal. As the BIA put it, "even if Pojoy's

proposed group were found to be a cognizable particular social

group, [Pojoy] ha[d] not met her burden to show that membership in

that group was or will be one central reason for the past or feared

future harm."

With regard to protection under the CAT, the BIA

similarly concluded that Pojoy had failed to establish eligibility

because she did not show that it is "more likely than not" that

she would be tortured upon her return to Guatemala at the hands,

or with the acquiescence, of the government. Even Pojoy's

testimony about her cousin's rape and murder did not demonstrate

that possibility.

The BIA dismissed her appeal. This petition for review

ensued.

-8- II.

A. Standard of Review

We review the BIA's decision as well as any portions of

the IJ's opinion adopted by the BIA. Bonilla v. Mukasey,

(1st Cir. 2008). We examine the BIA's legal conclusions

de novo and the underlying factual findings using the deferential

substantial evidence standard, Soeung v. Holder,

(1st Cir. 2012), thereby accepting findings of fact "as long as

they are 'supported by reasonable, substantial, and probative

evidence on the record considered as a whole,'" Diaz Ortiz v. Barr,

(1st Cir. 2020) (quoting Jianli Chen v. Holder,

(1st Cir. 2012)); see also Singh v. Mukasey,

(1st Cir. 2008) (noting that the BIA's "factual findings

underlying the denial of asylum" must be upheld "'unless any

reasonable adjudicator would be compelled to conclude to the

contrary'" (quoting Silva v. Gonzales,

(1st Cir.

2006) (quoting

(b)(4)(B)))).

B. Asylum

To be eligible for asylum, the applicant must show that

she is unwilling or unable to return to her country because of

"persecution or a well-founded fear of persecution on account of

race, religion, nationality, membership in a particular social

group, or political opinion." Diaz Ortiz,

(quoting

-9-

(a)(42)(A)). The applicant may make this showing

by establishing that she suffered past persecution, "which creates

a rebuttable presumption of a well-founded fear of future

persecution." Paiz-Morales v. Lynch,

(1st Cir.

2015) (quoting Singh v. Holder,

(1st Cir. 2014)).

Establishing past persecution ordinarily requires an applicant to

show that she experienced "more than mere discomfiture,

unpleasantness, harassment, or unfair treatment." Nikijuluw v.

Gonzales,

(1st Cir. 2005). Absent evidence of

past persecution, "the 'well-founded fear' requirement may be

satisfied with evidence of a 'reasonable likelihood' of future

persecution, so long as the fear is 'genuine and objectively

reasonable.'" Li Sheng Wu v. Holder,

(1st Cir.

2013) (citation omitted) (first quoting Smith v. Holder,

(1st Cir. 2010); and then quoting Aguilar-Solís v. INS,

(1st Cir. 1999)). To meet the "objectively

reasonable" requirement, the applicant must produce "credible,

direct, and specific evidence supporting a fear of individualized

persecution in the future."

(quoting Decky v. Holder,

(1st Cir. 2009)).

Additionally, the applicant bears the burden of

demonstrating that the claimed persecution was or will be "on

account of" a statutorily protected ground,

-10- (a)(42)(A) -- the "nexus" requirement. See Alvizures-Gomes v.

Lynch,

(1st Cir. 2016). That requirement is met

if the applicant can prove that a "statutorily protected ground

'was or will be at least one central reason for persecuting the

[alien].'"

(alteration in original) (quoting

(b)(1)(B)(i)). Importantly, "[w]hether the harm suffered

by an asylum applicant was inflicted 'on account of' a protected

ground is 'generally [a] question[] of fact.'" Singh,

(second and third alterations in original) (quoting Sompotan

v. Mukasey,

(1st Cir. 2008)).

While Pojoy devotes a substantial part of her brief to

contesting the IJ's credibility findings and arguing that her

proposed group of Guatemalan women is a particular social group,

those arguments are not relevant to our review. Despite finding

Pojoy's testimony not credible, the IJ assumed, favorably to Pojoy,

that her testimony was credible. Likewise, the IJ assumed

favorably to Pojoy that her proposed group was a cognizable social

group for purposes of the asylum analysis. Having made these

assumptions, the IJ nevertheless found that Pojoy failed to

establish a nexus between that social group and her father's

alleged persecution or her fear of future persecution.

The BIA, in turn, did not pass judgment on the

correctness of the IJ's credibility determination or whether

-11- Pojoy's proposed social group was cognizable under the statute.

Rather, it simply approved of the IJ's alternative determination

that, even assuming these two issues were resolved favorably to

Pojoy, her claims still failed because she did not establish the

required nexus between her persecution and the statutory ground

she asserted, namely, her status as a Guatemalan woman. We

therefore limit our analysis to determining whether the record

compels a finding on the nexus issue contrary to the BIA's. See

id.; Gailius v. INS,

(1st Cir. 1998) (noting that

our review is limited solely to the grounds invoked by the agency).

To satisfy the nexus requirement, Pojoy had to show that

her membership in the group of Guatemalan women "was or will be at

least one central reason for [her] persecuti[on]."7 Alvizures-

Gomes,

(quoting

(b)(1)(B)(i)). She

had to "provide sufficient evidence to forge an actual connection

between the harm and [her membership in the group]." Giraldo-

Pabon v. Lynch,

(1st Cir. 2016) (quoting Lopez de

Hincapie v. Gonzales,

(1st Cir. 2007)). The

7 Notably, Pojoy does not allege, much less prove, that her membership in the alleged particular social group of Guatemalan women "was or will be at least one central reason for [her] persecuti[on]." Alvizures-Gomes,

(emphasis added) (quoting

(b)(1)(B)(i)). Instead, she alleges only that she experienced persecution "at least in part because she was a woman." Brief for Petitioners at 21 (emphasis added).

-12- evidence provided by Pojoy about her encounters with her father,

in person and by phone, however, relates to her specifically and

the nature of her relationship with him. Pojoy testified that her

father asked her for money and to move in with him because she was

his daughter and, according to Pojoy, he persistently told her

that she resembled and reminded him of her mother. Moreover,

Pojoy admitted that she had not seen her father in the five years

before she left for the United States, and there is no evidence

that the calls continued after her departure.

In short, the evidence on the record does not show that

"the scope of [any] persecution extends beyond a 'personal

vendetta.'" Costa v. Holder,

(1st Cir. 2013)

(upholding the BIA's dismissal of a noncitizen's appeal because

substantial evidence showed that "the risk that [the noncitizen]

face[d] [was] personal, and not due to her membership in a social

group").

To the extent Pojoy presses her cousin's rape and murder

and the machismo culture she claims is prevalent in Guatemala as

evidence of future persecution, such speculation is insufficient

"to forge the statutorily required 'link.'" Guerra-Marchorro v.

Holder,

(1st Cir. 2014). The evidence in the

record does not compel a finding, contrary to the finding of the

-13- BIA, that Pojoy was or will be persecuted because she is a

Guatemalan woman.

C. Withholding of Removal and Protection under the CAT

Pojoy also seeks withholding of removal and protection

under the CAT, both of which "place a higher burden of proof on

the petitioner than a counterpart claim for asylum." Singh,

. An applicant seeking withholding of removal has the

burden of demonstrating that it is more likely than not that she

would face persecution on account of a protected ground if returned

to her country. Paiz-Morales,

. In turn, relief

under the CAT requires the applicant to show that "it is more

likely than not that [s]he will be tortured if returned to h[er]

homeland." Jiang v. Gonzales,

(1st Cir. 2007).

Because Pojoy fails to establish her eligibility for asylum, her

claims for withholding of removal and protection under the CAT

necessarily fail to meet these more stringent standards.

See Singh,

; Santosa v. Mukasey,

, 92 n.1

(1st Cir. 2008) ("The standard for withholding of removal is more

stringent than that for asylum. The CAT standard, in turn, is

more stringent than that for withholding of removal." (citation

omitted)); Guillaume v. Gonzales,

, 71 n.2 (1st Cir.

2007) (explaining that if an applicant cannot satisfy the standard

for asylum eligibility, he will also be unable to satisfy the

-14- higher standards for withholding of removal or protection under

the CAT).

III.

For the foregoing reasons, the petition for review is

denied.

-15-