United States Court of Appeals For the First Circuit

No. 21-1057

LEONARDO FABIO LÓPEZ-PÉREZ,

Petitioner,

v.

MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL,

Respondent.

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

Before

Kayatta, Lipez, and Gelpí, Circuit Judges.

Jeffrey B. Rubin, Todd C. Pomerleau, Kimberly A. Williams, and Rubin Pomerleau PC on brief for petitioner.

Brian Boynton, Acting Assistant Attorney General, Civil Division, with whom Jennifer R. Khouri, Acting Senior Litigation Counsel, and Julia J. Tyler, Trial Attorney, Office of Immigration Litigation, Civil Division, on brief for respondent.

February 22, 2022

 Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Merrick B. Garland has been substituted for former Acting Attorney General Robert Montague Wilkinson as the respondent. GELPÍ, Circuit Judge. Leonardo Fabio López-Pérez

("López-Pérez"), a native and citizen of Guatemala, petitions for

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

affirming the denial of his application for asylum, withholding of

removal, protection under the Convention Against Torture ("CAT"),

and voluntary departure. For the reasons that follow, we affirm.

I. Relevant Factual and Procedural Background

In early 2012, López-Pérez entered the United States through

the United States-Mexico border, without inspection, admission, or

parole. At the time, he was sixteen years old. López-Pérez was

initially included in his parents' asylum application filed on

November 4, 2013. However, said application was withdrawn on

November 4, 2017. López-Pérez claims he was unaware of this fact

and learned of this withdrawal during his own removal proceedings,

well after he had turned twenty-one.

In December 2018, the Department of Homeland Security served

López-Pérez with a Notice to Appear, charging him with removability

pursuant to § 212(a)(6)(A)(i) of the Immigration and Nationality

Act ("INA") as an "alien present in the United States without being

admitted or paroled."

(a)(6)(A)(i).

An Immigration Judge ("IJ") conducted a hearing on September

16, 2019, during which López-Pérez conceded removability and

applied for asylum, withholding of removal, protection under the

CAT, and post-conclusion voluntary departure.

- 2 - In a subsequent hearing on November 7, 2019, López-Pérez

testified before the IJ in support of his applications for relief.

During his testimony, he described his childhood living with his

grandmother and sisters in San Marcos, Guatemala. He stated that

in addition to Spanish, he spoke the Mam dialect.1 López-Pérez

also asserted that during his childhood he was persecuted for being

Mam. While attending school, López-Pérez allegedly was

mistreated, subjected to mockery and bullying, and faced verbal

attacks by his classmates for his ethnicity and speaking the Mam

language. He further stated that he felt threatened in Guatemala

given that his cousin, Adan López Gómez, had been kidnapped in

2008. Subsequently, his cousin received letters warning that the

kidnappers would go after his family. When asked why the

kidnappers targeted his cousin, López-Pérez replied that they

perceived him as a wealthy merchant. This testimony was

corroborated by two sworn statements from López-Pérez's cousins,

Adan López Gómez himself and Cecilio López Gómez. When asked why

he felt apprehensive about returning to Guatemala, López-Pérez

responded that he feared that what had happened to his cousin would

The Mam are an indigenous population in Guatemala, descended 1

from the Mayans. García-García v. Att'y Gen. U.S.,

, 107 (3d Cir. 2020).

- 3 - also occur to him. Additionally, he claimed that he would be

discriminated against for his Mam identity.

Following the hearing, the IJ found the petitioner's

testimony about his personal and family experiences in Guatemala

credible. The IJ, however, concluded that he was ineligible for

asylum because he had not filed his application within a reasonable

time of turning eighteen, turning twenty-one, or following his

parents' withdrawal from the asylum-seeking process. In the

alternative, the IJ addressed the merits of the asylum claim and

concluded that before he left Guatemala, López-Pérez had not

suffered harm that rose to the level of past persecution.

Additionally, the IJ found that López-Pérez failed to meet the

requisite standard for such relief because he did not show that he

would suffer any harm on account of one of the five protected

grounds enumerated in the asylum statute. Because his asylum claim

failed on the merits, the IJ found that López-Pérez was unable to

satisfy the even more stringent burden of establishing a

withholding of removal claim. The IJ next denied López-Pérez's

CAT petition, concluding that he had not established a likelihood

that, if sent back to Guatemala, he would be subject to torture by

or with the consent or acquiescence of a public official. Finally,

after considering López-Pérez's positive equities and past

unlawful activity, the IJ denied the request for voluntary

departure.

- 4 - López-Pérez appealed the IJ's ruling to the BIA, which

affirmed the IJ's conclusions. He subsequently filed a timely

petition for review with this court.

II. Standard of Review

Where, as here, "the BIA adopts and affirms an IJ's decision,

we review the IJ's decision to 'the extent of the adoption, and

the BIA's decision as to [any] additional ground.'" Sunoto v.

Gonzales,

, 59–60 (1st Cir. 2007) (alteration in

original) (quoting Berrio-Barrera v. Gonzales,

(1st Cir. 2006)). The agency's findings of fact are reviewed under

the substantial evidence standard. "This standard applies both to

asylum and withholding claims as well as claims brought under CAT."

Settenda v. Ashcroft,

(1st Cir. 2004). Under this

analysis, the agency's determinations will be upheld unless the

record evidence "compel[s] a reasonable factfinder to make a

contrary determination." Romilus v. Ashcroft,

(1st

Cir. 2004) (quoting Guzmán v. INS,

(1st Cir.

2003)); see also

(b)(4)(B). Questions of law, in

turn, are reviewed de novo. Romilus,

.

III. Discussion

a. Timeliness of the Asylum Application

A noncitizen is eligible for asylum upon establishing that he

is a refugee as defined by the INA. Pérez-Rabanales v. Sessions,

(1st Cir. 2018); see also

(a)(42).

- 5 - "A refugee is a person who cannot or will not return to [his] home

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.'" Olujoke v.

Gonzales,

(1st Cir. 2005) (quoting

(a)(42)).

An asylum application must be filed "within 1 year after the

date of the alien's arrival in the United States."

(a)(2)(B). Failure to comply with said deadline may be

excused if the "applicant demonstrates 'changed circumstances

which materially affect [his] eligibility for asylum or

extraordinary circumstances relating to the delay in filing'" and

if the non-citizen "file[s] the application 'within a reasonable

period' given those circumstances." Oroh v. Holder,

(1st Cir. 2009) (first quoting

(a)(2)(D); then

quoting

(a)(4), (5)). A noncitizen can establish

a changed circumstance that preserves his eligibility for asylum

by proving that he was previously included as a dependent in

another noncitizen's asylum application and the parent-child

relationship to the principal applicant was lost by the attainment

of age twenty-one.

(a)(4)(i)(C). The noncitizen

bears the burden of establishing that he qualifies for such an

exception.

§ 1208.4(a)(2)(i).

- 6 - It is undisputed that López-Pérez resided in the United States

for more than seven years prior to filing his own asylum

application. Indeed, by the time he filed his application, he was

twenty-three. Consequently, both the IJ and the BIA determined

that López-Pérez's application was untimely because it fell well

outside of the one-year period after he turned twenty-one. For

this reason, the IJ and the BIA concluded that López-Pérez had not

demonstrated changed or extraordinary circumstances that justified

the long delay in filing his asylum application.

Congress has limited "the scope of judicial review with

respect to timeliness determinations in asylum cases." Pan v.

Gonzales,

(1st Cir. 2007). As such, this court is

barred from reviewing the agency's determination unless the

noncitizen identifies a legal or constitutional question. Rashad

v. Mukasey,

(1st Cir. 2009); see also

(a)(3). Therefore, before we can reach the substance of

López-Pérez's timeliness argument, he must identify a "legal or

constitutional defect" in the agency's decision which would allow

us to review the agency's determination regarding the

application's timeliness. Rashad,

.

López-Pérez contends that the IJ failed to consider that he

did not know about his parents' withdrawal from the asylum-seeking

process until his own removal proceedings had begun. Although

López-Pérez claims that the agency committed factual and legal

- 7 - error, his challenge nonetheless "takes issue with the evidentiary

basis for the BIA's finding that 'circumstances' did not excuse

his untimely application for asylum." Rodríguez-Palacios v. Barr,

(1st Cir. 2019). This is the sort of "factual

claim masqueraded as a legal challenge" which we lack jurisdiction

to review. Rashad, 555 F.3d at 5.

b. Withholding of Removal

Even if certain applicants are not eligible for asylum, they

may still be entitled to withholding of removal. Sosa-Pérez v.

Sessions,

(1st Cir. 2018). To qualify for

withholding of removal, López-Pérez must show that there is a clear

probability that his life or freedom would be threatened in

Guatemala because of his "race, religion, nationality, membership

in a particular social group, or political opinion."

(b)(3)(A).

The burden of proof in a withholding of removal claim is

higher than that of an asylum claim. Soeung v. Holder,

(1st Cir. 2012); see also Sosa-Pérez,

. As

such, a noncitizen who cannot meet the lower asylum standard will

necessarily fail to make out a counterpart claim under the higher

standard for withholding of removal. See Soeung,

.

Here, the IJ found, and the BIA affirmed, that López-Pérez did not

qualify for withholding of removal because he did not meet the

lower threshold for asylum.

- 8 - We will uphold the agency's determination in the face of a

substantial evidence challenge "unless the evidence points

unerringly in the opposite direction." Rashad,

(quoting Khan v. Mukasey,

(1st Cir. 2008)). In

the present case, the evidence does not compel us to reject the

agency's conclusion. First, the record fails to compel a finding

that López-Pérez was subject to any treatment that amounts to past

persecution. Although the addition of physical violence is not

required for such a finding, see Javed v. Holder,

(1st Cir. 2013), past persecution requires that "the totality

of a petitioner's experiences add up to more than mere

discomfiture, unpleasantness, harassment, or unfair treatment."

Nikijuluw v. Gonzales,

(1st Cir. 2005).

The alleged past persecution based on his cousin's kidnapping

incident in Guatemala in 2008 and his membership in the same

familial group does not compel a finding of past persecution.

López-Pérez did not testify to having received direct threats.

Additionally, as the agency noted, López-Pérez indicated that

neither he nor his family had been subjected to further violence

by Adan's kidnappers in the years between the kidnapping and the

time López-Pérez left Guatemala. Nor does the past mistreatment

suffered by López-Pérez on the basis of his Mam identity compel a

finding of past persecution. Although we acknowledge López-

Pérez's claims that he experienced racial slurs in public and

- 9 - bullying in school, we do not think these lamentable experiences

compel a finding that López-Pérez endured "more than mere

discomfiture, unpleasantness, harassment, or unfair treatment."

Nikijuluw,

.2 Moreover, López-Pérez now argues,

for the first time, that his age at the time of the discriminatory

acts is a factor that should be considered when analyzing the past

persecution. This argument was not raised before the BIA and, as

such, we are now precluded from entertaining it. Sanabria Morales

v. Barr,

(1st Cir. 2020).

López-Pérez also claims fear of future persecution for being

cousin to Adan López Gómez, who was kidnapped when, according to

his sworn statement, he was believed to be a wealthy merchant. We

note that López-Pérez's sister and cousin Adan still reside in

Guatemala and have not suffered further violence by Adan's

kidnappers. Cf. Aguilar-Solis v. INS,

(1st Cir.

1999) ("[T]he fact that close relatives continue to live peacefully

in the alien's homeland undercuts the alien's claim that

persecution awaits his return."). Additionally, the record does

not compel the conclusion that it would be unreasonable to expect

López-Pérez to relocate internally in Guatemala to avoid future

persecution.

(b)(2)(ii).

2 Although López-Pérez claims on appeal to have experienced "beatings in school," he testified before the IJ that other students "never beat" him.

- 10 - Furthermore, in his asylum application, López-Pérez noted

that he feared being targeted upon his return to Guatemala because

he lived in the United States and "the perception is [that] I have

money." Being perceived as wealthy, however, is not an available

ground for claiming protection. Hernández-Lima v. Lynch,

(1st Cir. 2016).

Finally, López-Pérez avers that if sent back to his country

he will be forced to join the Mam militia and fight for lands

nearby the Mam settlement. He posits that Guatemalan police

officers will not provide security for him as they do not intervene

in issues related to indigenous communities. The BIA rejected

this theory, noting that López-Pérez "was not persecuted in the

past on this basis, and his vague testimony that he may be

recruited by other members of his indigenous community to

participate in defending their land does not establish the basis

for an asylum claim."3 The record does not compel a conclusion

that López-Pérez will experience future persecution by the Mam

people upon his return. Rather, it indicates that his family has

already left the Mam village and none of his relatives have been

involved in tribal land conflicts. Additionally, there is no

evidence that López-Pérez will go back to reside in the Mam

3 As to López-Pérez's complaint that the BIA's analysis was "short" and bereft of "any specific fact-finding," it is difficult to see what more the BIA might have said on the basis of the petitioner's "vague testimony."

- 11 - village. Thus, substantial evidence supports the agency's

findings. Because the record does not compel the conclusion that

López-Pérez would have been entitled to asylum on the merits, it

necessarily fails to compel the conclusion that he satisfies the

more onerous "clear probability" standard of his withholding of

removal claim. The record does not compel a finding that López-

Pérez has shown a "clear probability" that his life or freedom

would be threatened based on his relation to Adan López Gómez or

his Mam identity if returned to Guatemala.

c. Protection under the Convention Against Torture

To succeed on a CAT claim, the petitioner must show that "it

is more likely than not that he . . . would be tortured if removed

to the proposed country of removal."

(c)(2).

This requires the noncitizen to offer specific evidence showing

that he will be subject to

(1) an act causing severe physical or mental pain or suffering; (2) intentionally inflicted; (3) for a proscribed purpose; (4) by or at the instigation of or with the consent or acquiescence of a public official who has custody or physical control of the victim; and (5) not arising from lawful sanctions.

Samayoa Cabrera v. Barr,

(1st Cir. 2019) (quoting

Settenda v. Ashcroft,

(1st Cir. 2004)); see also

8 C.F.R § 1208.18(a).

López-Pérez contends that he would be subject to torture upon

his return to Guatemala by being forced to fight in a land war

- 12 - against his will, and because the police will not protect him.

The IJ pointed out that López-Pérez's fears relate to "crime and

actions by private actors" instead of the government of Guatemala.

Additionally, the IJ concluded that the record is insufficient to

justify his fears of torture and thus did not meet the high burden

needed for CAT relief. The BIA affirmed, stating: "We discern no

clear error in the [IJ's] predictive fact finding regarding what

is likely to occur to the respondent, who has not been tortured in

the past, following his return to Guatemala and agree that the

predicted outcome does not satisfy the legal definition of

torture."

We again review under the substantial evidence standard,

upholding the BIA's decision "if supported by reasonable,

substantial, and probative evidence on the record considered as a

whole." Settenda,

(quoting INS v. Elias-Zacarias,

(1992)). The record here contains such evidence

supporting the agency's conclusion that López-Pérez did not prove

that it was more likely than not that he would be tortured by or

with the acquiescence of the government if he returned to

Guatemala. When asked about the conditions in the Mam village and

the indigenous land war, López-Pérez stated that he has no contact

with people who live in the Mam village and that he understands

that the village's problems persist from what some recent arrivals

from the area told him and from what he has seen on the internet.

- 13 - Additionally, as previously discussed, there is no evidence that

López-Pérez will go back to reside in the Mam village.

Furthermore, his sister moved from the village to an area not

disturbed with land wars. Although López-Pérez points to country

condition evidence, the evidence of record as a whole is

insufficient to compel a reasonable factfinder to conclude that it

is more likely than not that López-Pérez would be tortured by or

with the acquiescence of a government official if he were to return

to Guatemala.

d. Voluntary Departure

Voluntary departure is a discretionary form of relief through

which the United States permits a noncitizen to voluntarily depart

from the country. See DaCosta v. Gonzales,

(1st

Cir. 2006). "Voluntary departure benefits the government by

expediting repatriation and eliminating the costs associated with

deportation. At the same time, it benefits the alien by allowing

him to choose his destination and avoid some of the penalties

attendant to removal." Naeem v. Gonzales,

, 36–37 (1st

Cir. 2006). Our jurisdiction to review voluntary departure denials

"is narrowly circumscribed." Cruz-Orellana v. Sessions,

(1st Cir. 2017). "[A] noncitizen may not bring a factual

challenge to orders denying discretionary relief, including

cancellation of removal, voluntary departure, adjustment of

status, certain inadmissibility waivers, and other determinations

- 14 - 'made discretionary by statute.'" Nasrallah v. Barr,

, 1693–94 (2020) (quoting Kucana v. Holder,

(2010)). However, this court may review "constitutional claims or

questions of law."

(a)(2)(D).

The IJ denied López-Pérez voluntary departure, exercising

discretionary authority upon analyzing the evidence presented and

concluding he was ineligible for relief. López-Pérez posits that

the IJ erred by "fail[ing] to properly assess all of the provided

testimony and evidence when reaching her determination." However,

López-Pérez simply does not raise a constitutional challenge or

legal question. See Cruz-Orellana,

. Instead, he

argues that the IJ gave undue weight to his past conviction for

driving under the influence of alcohol, his dismissed charge

relating to an assault in 2017, and a recent charge for assault

and battery against his child's mother and her male friend.

Nevertheless, López-Pérez "develop[ed] no argument that the law

categorically precludes an immigration court from taking such

[facts] into account." Lee v. Barr,

(1st Cir.

2020). The BIA affirmed the IJ's rationale that the equities in

petitioner's favor did not outweigh the adverse factors as to

warrant voluntary departure. This is precisely the kind of

discretionary decision that we lack jurisdiction to review.

For the foregoing reasons, the BIA's ruling is

Affirmed.

- 15 -