United States Court of Appeals For the First Circuit

No. 21-1448

GERSON ANTONIO HERNANDEZ-MARTINEZ,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Before

Kayatta and Howard, Circuit Judges, and Walker,* District Judge

Randy Olen on brief for appellant. Brian Boynton, Acting Assistant Attorney General, Civil Division, Jessica E. Burns, Senior Litigation Counsel, Office of Immigration Litigation, and Edward C. Durant, Trial Attorney, Office of Immigration Litigation, on brief for respondent.

February 2, 2023

* Of the District of Maine, sitting by designation. KAYATTA, Circuit Judge. In the wake of a police-aided

assault that left him hospitalized, Petitioner Gerson Antonio

Hernandez-Martinez fled to the United States, where he sought

asylum, withholding of removal, and relief under the Convention

Against Torture (CAT). Finding Hernandez-Martinez credible, the

Immigration Judge (IJ) nevertheless denied all three forms of

relief. After the Board of Immigration Appeals (BIA) affirmed the

IJ's decision, Hernandez-Martinez timely petitioned for judicial

review. For the following reasons, we find that the record

provides the requisite support for the IJ's conclusions that

Hernandez-Martinez failed to establish eligibility for asylum or

withholding of removal. At the same time, we vacate the order

denying CAT relief. Our reasoning follows.

I.

Hernandez-Martinez is a Guatemalan citizen who entered

the United States without inspection in 2014. Until shortly before

his departure, he had a good life in Guatemala, and made

approximately $5,000 per month between his taxi business and a job

with Coca-Cola.

In March 2014, Hernandez-Martinez was on his way to work

when two men approached him, demanding money and threatening to

kill him if he did not pay. Hernandez-Martinez did not know who

the men were. The men told him that they knew where he lived and

- 2 - would harm him or his wife if he did not comply. They also

instructed him not to go to the police.

Hernandez-Martinez went to the police later that day.

Two police officers told Hernandez-Martinez not to be afraid

because they would "take matters into their own hands," and they

offered to drive him home. Instead, they delivered him to the men

who had threatened him earlier. The men hit Hernandez-Martinez in

the face, cut his waist with a knife, burned his right foot with

motorcycle exhaust, dragged him, repeated their threats, and beat

him senseless. The police appeared to know his assailants and

laughed while the men were assaulting him. Hernandez-Martinez

recovered consciousness in a hospital, where he stayed for three

or four days. When he had sufficiently recovered, he promptly

fled to the United States to join his wife and then four- or five-

year-old son, who had already made the journey.

Placed in removal proceedings in 2014, Hernandez-

Martinez conceded his removability but requested asylum,

withholding of removal, and deferral of removal under the CAT. He

argued that he qualified for asylum and withholding of removal

because he had faced past persecution -- and feared future

persecution -- based on his membership in a particular social

group, which he defined as "business owners in Guatemala who have

a high profit." See

(a)(42)(A) (defining the term

"refugee" to encompass a person subject to persecution based on

- 3 - "membership in a political social group"). The IJ did not hold a

merits hearing on Hernandez-Martinez's claims until March 8, 2019.

The government makes no claim that Hernandez-Martinez (or his wife

or child) committed any crimes during the five years between his

entry and his 2019 hearing.

The IJ found Hernandez-Martinez to be credible, but

denied his requests for relief. First, she stated that his past

abuse at the hands of his police-supported extortioners did not

"rise above unpleasantness, harassment, and even basic suffering,"

quoting Rebenko v. Holder,

(1st Cir. 1992). The

IJ made no specific finding as to the prospects for future abuse

should Hernandez-Martinez return to Guatemala. Instead, she

devoted the bulk of her reasoning to explaining why, in any event,

he had not established a nexus between his assault and his

membership in a cognizable particular social group. She explained

that his proposed social group lacked "particularity" and had no

limitations based on age or background, and "[t]here was no

evidence that Guatemalan society perceives, considers, or

recognizes 'business owners in Guatemala who have a high profit'

as a distinct social group." Thus, he did not qualify for asylum.

The IJ next determined that Hernandez-Martinez's

withholding of removal claim must fail a fortiori because the

standard is more stringent than that for asylum. Finally, the IJ

rejected the CAT claim, albeit only by stating that "[n]either the

- 4 - Respondent's testimony nor other evidence in the record supports

the conclusion that it is more likely than not that the Respondent

would be singled out and tortured by, or with the acquiescence of,

the government of Guatemala, either by their active participation

in torture, or by their willful blindness to the acts of private

individuals."

Hernandez-Martinez appealed the denial of his claims to

the BIA. The BIA affirmed without issuing an opinion. Hernandez-

Martinez then petitioned this Court for review.

II.

"Where the BIA summarily affirms the IJ's asylum

determination, as is the case here, we review the IJ's decision as

if it were the decision of the BIA." Larios v. Holder,

(1st Cir. 2010). In so doing, we review factual

determinations under the "substantial evidence" standard. Gomez-

Abrego v. Garland,

(1st Cir. 2022). "[W]e accept

the findings 'as long as they are supported by reasonable,

substantial and probative evidence on the record considered as a

whole.'"

(quoting Aguilar-De Guillen v. Sessions,

(1st Cir. 2018)). Put another way, "[a]n agency's

determination of a fact-driven issue may not be set aside unless

the evidence compels a contrary determination." Moreno v. Holder,

(1st Cir. 2014). We review questions of law de

novo. Romilus v. Ashcroft,

(1st Cir. 2004).

- 5 - A.

1.

A petitioner for asylum must demonstrate persecution or

a well-founded fear of persecution based on a statutorily protected

ground: race, nationality, religion, membership in a particular

social group, or political opinion.

(a)(42)(A).

Persecution entails "more than ordinary harassment, mistreatment,

or suffering." Ordonez-Quino v. Holder,

(1st Cir.

2014) (quoting Lopez de Hincapie v. Gonzales,

(1st Cir. 2007)). "To constitute persecution, abuse 'must have

reached a fairly high threshold of seriousness, as well as some

regularity and frequency.'" Ivanov v. Holder,

(1st

Cir. 2013) (quoting Rebenko,

). "An important factor

in determining whether [mistreatment amounts to persecution] is

whether the mistreatment can be said to be systematic rather than

reflective of a series of isolated incidents." Touch v. Holder,

(1st Cir. 2009) (alteration in original) (quoting

Bocova v. Gonzales,

(1st Cir. 2005)).

Additionally, the petitioner must establish that the protected

ground "was or will be at least one central reason for" the

persecution.

(b)(1)(B)(i). Here, Hernandez-

- 6 - Martinez claimed persecution based on his membership in a

particular social group.1

The IJ rejected Hernandez-Martinez's claim for asylum on

two grounds. First, she found that the abuse Hernandez-Martinez

suffered did not constitute persecution because the harm inflicted

on him did not "rise above the level of unpleasantness, harassment,

and even basic suffering." Second, she determined that Hernandez-

Martinez had not sufficiently established that he was persecuted

on account of belonging to a cognizable social group. As we will

explain, we rely only on the latter ground in affirming the denial

of asylum.

2.

We must defer to the BIA's interpretation of the term

"particular social group" as long as it is reasonable. See Elien

v. Ashcroft,

(1st Cir. 2004). That is, we will

uphold the BIA's interpretation if it is "based on a 'permissible

construction of the statute.'" Chavez v. Garland,

(1st Cir. 2022) (quoting Cantarero v. Holder,

(1st Cir. 2013)).

The BIA has held that an applicant for asylum or

withholding of removal based on membership in a particular social

1 Hernandez-Martinez also argued before the IJ that he was persecuted based on his political opinion, but the IJ found he had not demonstrated persecution based on political opinion, and he does not revive that argument on appeal.

- 7 - group must establish that "the group is (1) composed of members

who share a common immutable characteristic, (2) defined with

particularity, and (3) socially distinct within the society in

question." Matter of M-E-V-G,

(B.I.A.

2014). Our circuit has likewise "accepted that a legally

cognizable social group is one whose members share a common,

immutable characteristic that makes the group socially visible --

that is, generally recognizable in the community -- and

sufficiently particular to define the group's membership."

Mayorga-Vidal v. Holder,

(1st Cir. 2012).

Additionally, we have "rejected proposed social groups based

solely on perceived wealth, even if signaling an increased

vulnerability to crime, regardless of why one is perceived as

wealthy." Beltrand-Alas v. Holder,

(1st Cir. 2012)

(cleaned up); see also López-Pérez v. Garland,

(1st Cir. 2022); Garcia-Callejas v. Holder,

(1st

Cir. 2012) (collecting both First Circuit cases and BIA precedent

rejecting social groups based on perceived wealth).

Here, the IJ concluded that Hernandez-Martinez's

proposed social group "failed" because it lacked the required

particularity and social distinction within Guatemala. The group

lacked particularity because it could have included individuals of

any age or background. And the IJ saw no evidence in the record

- 8 - that indicated that Guatemalan society recognizes or perceives

business owners with a high profit as a distinct group.

Hernandez-Martinez concedes that "wealth alone may be

insufficient" to define a particular social group, but argues that

his "affluence is combined with his highly visible business

ownership." He points out that a group consisting of business

owners could not, for example, include children. While this may

be true, Hernandez-Martinez's proposed group classification

remains quite broad and partially based on wealth. Especially

because we have previously found that wealth alone cannot define

a particular social group, we see no reason to upset the IJ's

finding here where the only additional limiting suggestion --

visible business owners -- could include people of many ages and

backgrounds, and by its terms is ambiguous. See Mendez-Barrera v.

Holder,

(1st Cir. 2010); see also Sicaju-Diaz v.

Holder,

(1st Cir. 2011) (wealthy Guatemalans

returning from the United States was not a cognizable social

group); Macedo Templos v. Wilkinson,

, 882–83 (9th

Cir. 2021) (holding that proposed social group of Mexican wealthy

business owners who refused extortion demands lacked

particularity).

Hernandez-Martinez also contends that his proposed group

is socially distinct, because "Guatemalan society perceives

successful business owners as a distinct social group, easily

- 9 - identifiable from the vast majority of Guatemalan society, much of

which lives in poverty." He does not, however, cite anything in

the record to support this claim. We therefore cannot conclude

that the IJ's determination that wealthy business owners in

Guatemala are not a sufficiently distinct group was reversible

error. See Paiz-Morales v. Lynch,

(1st Cir.

2015) (rejecting a proposed social group, in part because

petitioner offered no evidence of the existence of an otherwise

broadly defined group, "aside from his own assertion").

For the foregoing reasons, Hernandez-Martinez has not

met his burden to overturn the IJ's determination that the proposed

particular social group to which he claims to belong is not

cognizable. We therefore conclude there is no basis to reverse

the IJ's denial of asylum.

B.

We must reach the same conclusion with respect to the

denial of withholding of removal. "To petition successfully for

withholding of removal, an alien must show that, if returned to

his homeland, he would more likely than not be subjected to

persecution on account of a statutorily protected ground." Amouri

v. Holder,

(1st Cir. 2009). Given the probability

requirement, "a claim for withholding of removal 'imposes a more

stringent burden of proof on an alien than does a counterpart claim

for asylum.'" Rivera-Coca v. Lynch,

(1st Cir.

- 10 - 2016) (internal quotation marks omitted) (quoting Morgan v.

Holder,

(1st Cir. 2011)). Because Hernandez-

Martinez failed to establish a claim for asylum because he did not

establish a well-founded fear of persecution on account of a

protected ground, his claim for withholding of removal also fails.

C.

We turn now to Hernandez-Martinez's CAT claim. Our

holding affirming the rejection of the asylum claim for lack of

the requisite nexus between harm and a protected group does not

dictate the outcome of this claim, because a successful CAT claim

requires no proof of such a nexus. Rashad v. Mukasey,

(1st Cir. 2009) (citing Romilus,

). Rather, in

order to be eligible for protection under the CAT, a petitioner

must show that he would more likely than not be tortured by or

with the acquiescence of a government official if sent to the

country of removal. Aldana-Ramos v. Holder,

(1st

Cir. 2014). In determining whether it is more likely than not

that a petitioner will be tortured with government approval,

all evidence relevant to the possibility of future torture shall be considered, including but not limited to:

(i) Evidence of past torture inflicted upon the applicant;

(ii) Evidence that the applicant could relocate to a part of the country of

- 11 - removal where he or she is not likely to be tortured;

(iii) Evidence of gross, flagrant, or mass violations of human rights within the country, where applicable; and

(iv) Other relevant information regarding conditions in the country of removal.

(c)(3). Although past torture does not create a

presumption of future torture, it is relevant to the question of

whether the petitioner is more likely than not to face future

torture. Id.; see also Romilus,

(analyzing past

incidents in determining likelihood of future torture).

Adjudicating a CAT claim requires making findings of

fact, "e.g., whether a person is likely to suffer a particular

harm and the role of the foreign government in causing or allowing

that harm," and deciding questions of law, "e.g., whether such

harm rises to the level of torture" and whether government

involvement renders the harm cognizable under the CAT. DeCarvalho

v. Garland,

(1st Cir. 2021). Whether a particular

act constitutes torture is a legal conclusion that we review de

novo, though with reasonable deference to the agency's

interpretation. Gourdet v. Holder,

(1st Cir. 2009),

abrogated on other grounds by Nasrallah v. Barr,

(2020); see also Ali v. Garland,

(1st Cir. 2022).

- 12 - The government posits an array of reasons for affirming

the rejection of Hernandez-Martinez's CAT claim. But we must base

any affirmance on grounds adopted by the BIA (or, here, the IJ).

See Rosales Justo v. Sessions,

, 162 & n.7 (1st Cir.

2018) (explaining that we "conduct de novo review only of the

justifications provided by the BIA," and noting that such review

"is different from de novo review of district court decisions,

where we can affirm for any reason supported by the record"). Our

charge is not to look through the record searching for reasoning

that the IJ might have offered, but did not. Rather, we "judge

the action of [the BIA] based only on reasoning provided by the

agency, not based on grounds constructed by the reviewing court."

Mihaylov v. Ashcroft,

, 21 (1st Cir. 2004) (alteration

in original) (quoting Yatskin v. INS,

(1st Cir.

2001)).

The IJ's reasons are not at all clear. She more or less

simply stated the elements of a CAT claim and asserted that

Hernandez-Martinez did not establish those elements without

specifying which elements were found wanting, or why.2 In

addressing the asylum claim, the IJ did comment on the severity of

2 The IJ stated only: "Neither the Respondent's testimony nor other evidence in the record supports the conclusion that it is more likely than not that the Respondent would be singled out and tortured by, or with the acquiescence of, the government of Guatemala, either by their active participation in torture, or by their willful blindness to acts of private individuals."

- 13 - harm inflicted on Hernandez-Martinez, stating that the abuse he

suffered did not "rise above the level of unpleasantness,

harassment, and even basic suffering." We agree with the

government that were this a supportable description of the harm

inflicted, it would not support a CAT claim. We disagree, though,

that the facts found support such a description. More to the

point, as a matter of law we reject the implicit claim that the

harm visited upon Hernandez-Martinez was not severe enough to

qualify as torture.

Torture is defined as "any act by which severe pain or

suffering, whether physical or mental, is intentionally inflicted

on a person" to obtain information, to punish, to intimidate or

coerce, "or for any reason based on discrimination of any kind."

(a)(1). Because we read the IJ's finding to speak

only to severity, that is where we focus our attention. The

regulations implementing the CAT further speak to the necessary

degree of severity by explaining that torture is "an extreme form

of cruel and inhuman treatment," that must be "specifically

intended to inflict severe physical or mental pain or suffering."

§ (a)(2), (5). The regulations do not speak specifically to

whether torture must extend over a certain duration or reach a

certain frequency. They do state, though, that "[t]orture is

defined as any act," which implies that a single occurrence is

enough.

(a)(1) (emphasis added); see also

- 14 - § 1208.18(5), (6) ("In order to constitute torture, an act

must . . . .); Niz-Chavez v. Garland,

, 1481–82

(2021) (reading statutory term defined in singular ("a notice") to

require a single document); Deborah E. Anker, Law of Asylum in the

United States § 7.20 (2022 ed.) ("It is possible, pursuant to the

Torture Convention, for a single act to constitute

torture . . . ."). Certainly the government does not contend

otherwise, so neither shall we.

Here, the treatment that Hernandez-Martinez endured was

clearly severe enough to constitute torture. The assailants not

only beat Hernandez-Martinez senseless; they also sliced his waist

with a knife and intentionally burned the flesh on his foot as

they repeated their threats, sending him unconscious to a hospital

where he remained for three to four days. Even granting

"appropriate deference to the agency's interpretation" on this

legal question, as we must, see Ali,

(quoting

Ramírez-Pérez v. Barr,

(1st Cir. 2019)), we find

that the record compels the conclusion that Hernandez-Martinez's

experience did "rise above the level of unpleasantness,

harassment, and even basic suffering." More to the point, the

intentionally inflicted harm was the result of an extreme form of

cruel and inhuman treatment intended to inflict severe physical

pain and suffering. That is to say, it was severe enough to

qualify as torture.

- 15 - The BIA itself has recognized that intentionally burning

a person with a cigarette can constitute torture. In re J-E,

, 301–02 (B.I.A. 2002); In re G-A,

(B.I.A. 2002); see also P. Kooijmans (Special Rapporteur

on Torture), Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment, ¶ 119, U.N. Doc. E/CN.4/1986/15 (Feb. 19,

1986) (listing burns among nonexclusive methods of torture).

Courts have recognized this as well. See Rodriguez-Molinero v.

Lynch,

(7th Cir. 2015) ("agree[ing]" that

petitioner "was tortured by [people] who entered his hotel room,

burned him with cigarettes, beat him, and stabbed him with an ice

pick"); Al-Saher v. INS,

(9th Cir. 2001)

(burning with cigarettes while detained constituted torture and

was "specifically intended by officials to inflict severe physical

pain"). Intentionally burning the flesh of a person's foot while

cutting the person at the waist and beating him unconscious is

severe enough to be distinguishable from the lesser forms of cruel,

inhuman, or degrading treatment that do not amount to torture.

In arguing to the contrary, the government relies on a

two-step argument. First, it points to cases in which we have

affirmed findings that the harm inflicted on a petitioner did not

constitute persecution.3 Second, it assumes that if harm is not

3 See Gao v. Barr,

, 152–53 (1st Cir. 2020); García-Cruz v. Sessions,

, 6–7 (1st Cir. 2017); Vasili

- 16 - sufficiently severe to constitute persecution it cannot be

sufficiently severe to constitute torture.4 But this argument

fails at the first step because in none of the cited cases did we

find that conduct equally or more severe than that found here fell

short of the severity required to constitute persecution. In some

of those cases, the persecution claims failed because the harm did

not "occur[] with some regularity and frequency" -- a requirement

for persecution that is separate from the severity, or

"seriousness," of the harm. Vasili v. Holder,

(1st Cir. 2013) (cleaned up) (quoting Alibeaj v. Gonzales,

(1st Cir. 2006)); see Anacassus v. Holder,

(1st Cir. 2010) ("[I]solated beatings, even when

rather severe, do not establish systematic mistreatment needed to

show persecution." (emphasis added) (quoting Wiratama v. Mukasey,

(1st Cir. 2008))).5 These cases therefore have

v. Holder,

, 89–90 (1st Cir. 2013); Barsoum v. Holder,

, 79–80 (1st Cir. 2010); Anacassus v. Holder,

, 19–20 (1st Cir. 2010); Lumataw v. Holder,

(1st Cir. 2009); Touch v. Holder,

, 39–40 (1st Cir. 2009); Kho v. Keisler,

, 57–58 (1st Cir. 2007); Bocova v. Gonzales,

, 263–64 (1st Cir. 2005). 4 The government cites Nuru v. Gonzales,

(9th Cir. 2005) ("In finding that Nuru was tortured, we also necessarily determined that the acts committed by the military rose to the level of persecution. . . . This is because torture is more severe than persecution and the standard of proof for the CAT claim is higher than the standard of proof for an asylum claim."). 5 See Anacassus,

("single, isolated beating" was not "systematic" and was therefore insufficient to constitute

- 17 - little bearing on whether harm is severe enough to constitute

torture. And in the remaining persecution cases the government

cites, the harm found wanting was clearly less severe than the

harm inflicted on Hernandez-Martinez (and the claims may have had

had other deficiencies as well).6

The government comes closest with Barsoum v. Holder,

where the petitioner's car was pushed off the road into a trash

container and he suffered "injuries to the face and head, requiring

hospitalization, a blood transfusion, and plastic surgery."

(1st Cir. 2010). The court affirmed that this

incident, along with other nonviolent incidents, constituted

neither persecution nor torture.

at 79–80. But while the

injuries in Barsoum are unquestionably serious, pushing a car off

persecution); Bocova,

(affirming BIA determination that petitioner had not been persecuted where "the record here shows only two incidents, over an eight-year span," and "there is little in the record to suggest that the petitioner was systematically targeted for abuse"). 6 See Gao, 950 F.3d at 152–53 (no evidence of any injuries during detention incident); García-Cruz, 858 F.3d at 6–7 (threats with no physical harm); Vasili,

(no evidence about nature and extent of petitioner's injuries from beating); Lumataw,

(petitioner "received only a single threat, unaccompanied by physical harm"); Touch, 568 F.3d at 39–40 (petitioner "did not suffer serious or permanent injuries" from being beaten and forced to drink wastewater, and single threat was unaccompanied by physical harm); Butt,

at 90–91 (threats and stalking with "no actual physical harm"); Kho,

(non-violent mugging, verbal insult, looting incident where petitioner was hit once, burning of two churches petitioner attended while he was absent).

- 18 - the road does not have the "specific[] inten[t] to inflict severe

physical or mental pain or suffering" required for an act to

constitute torture,

(a)(5). The car crash could

instead be an example of "[a]n act that results in unanticipated

or unintended severity of pain and suffering," which "is not

torture."

Here, by contrast, Hernandez-Martinez's assailants

intentionally cut him, burned him, and beat him senseless, all

toward the end of inflicting severe pain and injury to bend him to

their will, and seemingly as punishment for not previously acceding

to their demands.

To summarize, we hold that the harm inflicted in the

past on Hernandez-Martinez clearly satisfied the severity element

of torture as defined for purposes of adjudicating a claim for

relief under the CAT. We leave it to the BIA or the IJ to determine

on remand in the first instance whether Hernandez-Martinez's

experience otherwise met the definition of past torture (e.g.,

whether it was committed by or with the acquiescence of government

officials), and if so, whether Hernandez-Martinez has otherwise

satisfied the requirements for protection under the CAT.

III.

For the foregoing reasons, we deny Hernandez-Martinez's

petition as to his asylum and withholding of removal claims, but

grant the petition in part by vacating the rejection of his CAT

- 19 - claim and remanding for further consideration of that claim

consistent with this opinion.

- 20 -