United States Court of Appeals For the First Circuit

No. 23-1341

HENRY DONALDO GONZALEZ-AREVALO,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Before

Gelpí, Selya, and Thompson, Circuit Judges.

Randy Olen for petitioner.

Brandon T. Callahan, Trial Attorney, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, with whom Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division, and Jennifer R. Khouri, Senior Litigation Counsel, Office of Immigration Litigation, were on brief, for respondent.

August 7, 2024 GELPÍ, Circuit Judge. Petitioner Henry Donaldo

Gonzalez-Arevalo ("Gonzalez-Arevalo"), a native and citizen of

Guatemala, petitions for review of a final order of the Board of

Immigration Appeals ("BIA") affirming the immigration judge's

("IJ") denial of his request for asylum, withholding of removal,

and protection under the Convention Against Torture ("CAT"). The

BIA and IJ (collectively, "the agency") found, in part, that

Gonzalez-Arevalo failed to prove that he was persecuted "on account

of" a statutorily protected ground.

(a)(42)(A).

That finding was supported by substantial evidence, and

Gonzalez-Arevalo's arguments to the contrary are unpersuasive. We

deny his petition.

I. BACKGROUND

We draw our background "from the administrative record,

including [Gonzalez-Arevalo's] testimony before the IJ, which the

IJ found credible." Chun Mendez v. Garland,

(1st

Cir. 2024).

A. Underlying Facts

Gonzalez-Arevalo is a thirty-eight-year-old native and

citizen of Guatemala. He entered the United States without

authorization in 2003, returned to Guatemala in 2010, and reentered

the United States without authorization in 2012. Immigration

officials detained him in January 2012. On February 24, 2012, an

asylum officer conducted a credible fear interview with

- 2 - Gonzalez-Arevalo and determined that he had established a credible

fear of persecution in Guatemala. In the interview,

Gonzalez-Arevalo explained that he feared harm because the

relatives of the man who murdered his father and uncle believed

that Gonzalez-Arevalo was responsible for the man's incarceration.

The Department of Homeland Security ("DHS") served

Gonzalez-Arevalo on February 27, 2012, with a Notice to Appear in

immigration court. DHS charged him with removability as a

noncitizen not in possession of a valid entry document,

(a)(7)(A)(i)(I). He admitted those allegations and conceded

his removability on June 9.

He then applied for asylum, withholding of removal, and

CAT protection on December 18. He based his application in part

on his membership in a particular social group ("PSG") and

explained that his "father was killed by a local criminal gang."

According to Gonzalez-Arevalo, this gang also "chased [him] with

guns" and "set fire to [his] car." He remained "afraid that the

gang [would] kill [him] for reprisal because the leader served

some time in jail."

He explained in an affidavit supporting his application

that, when he was a child, a local gang leader known as "El Vicioso"

("the vicious one") and two or three other individuals murdered

his father and uncle in a home invasion in Guatemala in 1988. El

Vicioso was imprisoned, but Gonzalez-Arevalo remained afraid of El

- 3 - Vicioso's family, who still live in Guatemala. Gonzalez-Arevalo

also described how unknown gang members in Guatemala killed his

two cousins and a family friend.

Gonzalez-Arevalo testified further about these

experiences at a hearing before the IJ on July 23, 2019.1 He

described his proposed PSG as "Guatemalan males who, and whose

family, have suffered past persecution by means of murder of the

father of the family by gangs." "[T]he family of those two that

are incarcerated" for his father and uncle's murder, he explained,

"think that [he and his family] are at fault for that,

so . . . that's the reason why the problems have continued."

Indeed, he clarified that El Vicioso's relatives "think that [he

and his family] did that to him." Gonzalez-Arevalo explained that

one of the killers was a member of his own family, and his father

and uncle's murder was in "vengeance" for some previous slight.

Gonzalez-Arevalo also detailed the attacks in 2010 in

Guatemala that grounded his asylum application:

• Car explosion: While driving through Guatemala City, Gonzalez-Arevalo left his car to buy something. The car then exploded. Police officers investigating the explosion told Gonzalez-Arevalo that they suspected that something was placed inside the car to cause the explosion.

1 Gonzalez-Arevalo's hearing was originally scheduled for May 6, 2014. He failed to appear, so the IJ ordered him removed in absentia. However, on October 1, 2014, the IJ granted Gonzalez-Arevalo's motion to reopen the case. After several extensions, the IJ finally held the hearing on July 23, 2019.

- 4 - • Wedding Attack: Gonzalez-Arevalo went to a wedding in Guatemala. Some men learned that he would attend and, with the intent to attack him, went to the wedding. Armed with guns, they chased him from the wedding.

Gonzalez-Arevalo did not know the names of the individuals who

attacked him. Nor was he aware of how many people were responsible

for either attack.

The IJ inquired more about the motivations of

Gonzalez-Arevalo's attackers. She asked if he believed that these

incidents happened "because [his] father's murderers were sent to

jail," and he agreed with that characterization. With that, she

then asked if his "problems in Guatemala . . . were because of

reprisals" from El Vicioso's incarceration and if Gonzalez-Arevalo

feared future harm "because of these reprisals." He answered,

"Yes," to both questions.

B. Procedural History

The IJ denied Gonzalez-Arevalo's application. First

finding him credible, the IJ determined that Gonzalez-Arevalo's

"experiences in Guatemala d[id] not rise to the level of

persecution." Nor was his proposed PSG cognizable. Even if he

met these requirements, the IJ stated that "fear of retribution

over personal matters is not a basis for asylum." She concluded

that his alleged persecutors were motivated by vengeance for the

incarceration of the murderers. That personal motivation meant

that the attacks were not on account of a statutorily protected

- 5 - ground, so his experiences in Guatemala could not ground a past or

future persecution claim. Because his asylum claim faltered, the

IJ denied his withholding of removal claim.2

Gonzalez-Arevalo appealed to the BIA. He challenged the

IJ's conclusion that his proposed PSG, which he described on appeal

as "Guatemalan males whose family and whom have suffered past

persecution, including murder, at the hands of criminal gangs,"3

was inadequate and that he did not show persecution. He also

challenged the IJ's conclusion that he was targeted for

retribution.

The BIA affirmed. It adopted the IJ's reasoning and

supplemented her conclusion that Gonzalez-Arevalo did not show

that a protected ground "was or will be at least one central reason

for his persecution." The BIA noted that, although "the presence

of a non-protected motivation does not render the applicant

ineligible for asylum," a "central" reason is not "merely

The IJ also denied his CAT claim. Gonzalez-Arevalo neither 2

appealed that claim to the BIA nor asked us to review it. It is, therefore, waived. See Jimenez-Portillo v. Garland,

(1st Cir. 2022). Gonzalez-Arevalo's PSG in his Notice of Appeal to the BIA 3

was "Guatemalan males whose family have suffered past persecution by virtue of multiple murders by gangs and political opinion, belief in the rule of law." That PSG matched his asylum application, where he claimed asylum based on his political opinion and PSG membership. He did not raise any claim concerning his "political opinion" in his brief to us. He thus waived any argument concerning this point. See Berrio-Barrera v. Gonzales,

(1st Cir. 2006).

- 6 - incidental (i.e., minor, casual, or subordinate) or tangential

(i.e., superficially relevant)." The BIA then cited

Gonzalez-Arevalo's testimony describing the 2010 attacks as

"reprisal" for his father and uncle's murderers' incarceration.

With that record support, the BIA concluded that the IJ did not

clearly err when she found that family membership was not one

central reason for these attacks.

This timely petition for judicial review, over which we

have jurisdiction, followed.

(a)(1).

II. DISCUSSION

A. Legal Standards

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

ruling but nevertheless examines some of the IJ's conclusions, we

review both the BIA and IJ opinions as a unit." Barnica-Lopez v.

Garland,

(1st Cir. 2023) (cleaned up) (citation

omitted) (quoting Gómez-Medina v. Barr,

(1st Cir.

2020)). And, as here, "[w]e evaluate 'the IJ's decision to the

extent of the adoption, and the BIA's decision as to [any]

additional ground.'" Esteban-Garcia v. Garland,

(1st Cir. 2024) (second alteration in original) (quoting

López-Pérez v. Garland,

(1st Cir. 2022)).

We review the agency's legal conclusions de novo. Chun

Mendez,

. But we review its factual findings under

the substantial evidence standard.

Under this highly

- 7 - deferential standard, "we will only disturb the agency's findings

if, in reviewing the record as a whole, 'any reasonable adjudicator

would be compelled to conclude to the contrary.'" Barnica-Lopez,

(quoting Gómez-Medina,

). "That the

record supports a conclusion contrary to that reached by the

[agency] is not enough to warrant upsetting the [agency's] view of

the matter; for that to occur, the record must compel the contrary

conclusion." Santos Garcia v. Garland,

(1st

Cir. 2023) (quoting Hincapie v. Gonzales,

(1st

Cir. 2007)).

Under the INA, an asylum applicant must prove that he is

a "refugee," someone "who is unable or unwilling to return to" his

country of origin "because of persecution or a well-founded fear

of persecution on account of race, religion, nationality,

membership in a [PSG], or political opinion."

(a)(42)(A). Persecution in this sense "requires proof of 'a

certain level of serious harm (whether past or anticipated), a

sufficient nexus between that harm and government action or

inaction, and a causal connection to one of th[ose] statutorily

protected grounds.'" Barnica-Lopez,

(quoting

Martínez-Pérez v. Sessions,

(1st Cir. 2018)).

To establish eligibility for withholding of removal due

to persecution, the applicant must show the same elements as

required for the asylum claim but his "burden is even higher."

- 8 - Chun Mendez,

(quoting Varela-Chavarria v. Garland,

(1st Cir. 2023)). An applicant must show "a

clear probability that, if returned to his homeland, he will be

persecuted on account of a statutorily protected ground."

Barnica-Lopez,

(quoting Sanchez-Vasquez v.

Garland,

(1st Cir. 2021)). "[T]he substantive

similarities in the standards for asylum and withholding of removal

claims" make it so that "asylum precedents may be helpful in

analyzing withholding-of-removal cases, and vice versa."

Espinoza-Ochoa v. Garland,

(1st Cir. 2023)

(internal quotation marks omitted) (quoting Barnica-Lopez,

).

B. Asylum Claim

Gonzalez-Arevalo targets the agency's findings on all

fronts: that he did not prove harm rising to the level of

persecution, articulate a cognizable PSG, or establish a nexus

between the harm he suffered and a protected ground. The

government contests every point. In part, it argues that the PSG

he raised before the agency was impermissibly circular and that

his PSG on appeal of "membership in the Gonzalez-Arevalo family"

is unexhausted. Yet it also suggests that we can affirm on the

independent, "[d]ispositive" basis that Gonzalez-Arevalo failed to

meet his burden to prove a nexus between the harm he suffered and

a protected ground.

- 9 - "For both past and future persecution claims, '[a]n

inability to establish any one of the three elements of persecution

will result in a denial of [the] asylum application.'"

Esteban-Garcia,

(alterations in original) (quoting

Aguilar-De Guillen v. Sessions,

(1st Cir. 2018)).

We assume without deciding that his PSG is "membership in the

Gonzalez-Arevalo family," that this social group is cognizable and

exhausted, and that his alleged instances of persecution rise to

a certain level of serious harm. See Cabrera v. Garland,

(1st Cir. 2024) (assuming that the petitioner's proposed

social group was, as he claimed, "small business owners" and that

he exhausted this group because his asylum claim was still "without

merit" (quoting Reyes Pujols v. Garland,

(1st Cir.

2022))). To resolve this petition for review, we turn to the nexus

requirement.

1. Nexus to a Protected Ground

"To meet the nexus requirement, the petitioner must have

provided sufficient evidence of an actual connection between the

harm she suffered and her protected trait." Esteban-Garcia,

(cleaned up) (quoting Ivanov v. Holder,

(1st Cir. 2013)). "A causal connection between the harm

incurred and the petitioner's statutorily protected ground exists

only if the protected ground 'was "one central reason" for the

harm alleged.'" Odei v. Garland,

(1st Cir. 2023)

- 10 - (quoting Sanchez-Vazquez,

); see

(b)(1)(B)(i). The "one central reason" standard recognizes

that persecutors "may have more than one motivation."

Barnica-Lopez,

(quoting Singh v. Mukasey,

(1st Cir. 2008)). So, "[t]he statutorily protected ground

need not be the sole factor driving the alleged persecution."

Odei,

(quoting Barnica-Lopez,

).

Still, Gonzalez-Arevalo must prove that his proposed

social group "was not 'incidental, tangential, superficial, or

subordinate to another reason for [the] harm.'" Espinoza-Ochoa,

(alteration in original) (quoting Barnica-Lopez,

). In other words, Gonzalez-Arevalo's family

membership "must be at the root of the persecution, so that family

membership itself brings about the persecutorial conduct."

Barnica-Lopez,

(quoting Ruiz-Escobar v. Sessions,

(1st Cir. 2018)). We have been clear that the

mere fact that persecutors targeted family members "does not

convert [a] non-protected criminal motivation into persecution on

the basis of family connections." Loja-Tene v. Barr,

(1st Cir. 2020) (quoting Aldana-Ramos v. Holder,

(1st Cir. 2014)). So, to draw the line, we ask "whether it is

possible to disentangle the applicant's family status from the

persecutor's other motives, or if they are two sides of the same

- 11 - coin." Ferreira v. Garland,

(1st Cir. 2024)

(internal quotation marks and citation omitted).

To prevail below, Gonzalez-Arevalo needed to "provide

some evidence to establish that [his family membership] was at

least one central reason." Esteban-Garcia,

(internal quotation marks and citations omitted). We review the

agency's contrary finding under the substantial-evidence standard.

See Barnica-Lopez,

.

Gonzalez-Arevalo first argues that the record does not

support the agency's finding that his family membership was

subordinate to his alleged persecutors' desire for reprisal for

the incarceration. Not so. "[E]vents that stem from personal

disputes are generally not enough to show the required nexus

between past harm and a protected ground," and "disputes motivated

by revenge [are] personal in nature."

(internal

quotation marks and citations omitted). Gonzalez-Arevalo

testified that his persecutors attacked him because they believed

that he was "at fault" for the incarceration. And he agreed with

the IJ that the 2010 attacks were "reprisals" for that

incarceration. Even in his asylum application and credible fear

interview, Gonzalez-Arevalo explained that he feared reprisal

because his persecutors believed that he was responsible for El

Vicioso's incarceration. The record therefore supports the

agency's finding that Gonzalez-Arevalo's family membership was

- 12 - "incidental or subordinate to [his] assailants' vengeful purpose."

Although Gonzalez-Arevalo contends that his family

members' deaths and the 2010 attacks in Guatemala compelled a

contrary conclusion, we are unpersuaded. "[I]t is not enough

merely to show that multiple members of a single family had

negative experiences" when nothing in the record "causally

link[s]" those experiences and family membership. Ruiz v. Mukasey,

(1st Cir. 2008). "And when an asylum-seeker does

not 'know[] who was responsible' for a killing, 'it is no more

than a guess that a nexus existed between the [killing] and a

statutorily protected ground.'" Jimenez-Portillo,

(alterations in original) (quoting López-Castro v. Holder,

(1st Cir. 2009)). Gonzalez-Arevalo could not offer

any details about his alleged persecutors in Guatemala. Nor could

he say who killed his cousins and family friend or why, stating

only that gang violence in Guatemala -- without linking that

violence to their shared kinship or even El Vicioso's

incarceration -- caused their deaths. All he could do was "guess"

that these deaths and attacks were connected to family membership.

at 169 (quoting López-Castro,

). That is not

enough to compel a reasonable adjudicator to reach a contrary

conclusion. See

.

- 13 - Gonzalez-Arevalo also claims that his testimony was

"speculati[ve]" and implies that the agency needed to rely on other

evidence to establish that family membership was subordinate to

his persecutors' desire for vengeance. We reject this argument.

The agency may rely upon the credible testimony of an asylum-seeker

in analyzing an asylum claim. See Barnica-Lopez,

(affirming the agency's finding that family membership was

incidental to revenge in motivating persecution where the

petitioners "consistently testified that they believed they were

threatened because an associate had shot one of the assailants");

Esteban-Garcia,

(affirming the agency's finding

that the petitioner's ethnicity did not motivate persecution where

she testified that her persecutors pressured her into prostitution

for financial gain); Ferreira,

(affirming the

agency's finding that the petitioner's family membership did not

motivate her persecution based in part on her testimony that her

uncle "was motivated by his own criminal, sexual desires"). And

even assuming for argument's sake that Gonzalez-Arevalo's

testimony was "speculati[ve]," he would not prevail. "He

present[ed] no evidence other than" that "speculation" -- coupled

with the unconnected deaths of family members -- "to link" his

harm to his family membership. Khalil v. Ashcroft,

(1st Cir. 2003). Either way, the agency's no-nexus finding

stands.

- 14 - Gonzalez-Arevalo next asserts that the agency focused on

a non-protected ground without considering mixed motives.

However, the BIA cited caselaw acknowledging "that multiple

motivations can exist, and the presence of a non-protected

motivation does not render the applicant ineligible for asylum."

These accurate, on-point citations "necessarily 'acknowledged the

possibility of a mixed-motive case.'" Barnica-Lopez,

(quoting Villalta-Martinez v. Sessions,

(1st

Cir. 2018)). Moreover, the BIA pointed to the record before

discerning no error in the IJ's finding that the attacks in

Guatemala were "due to retribution or reprisal." Because the BIA

cited the mixed-motive standard and supported its conclusion with

facts drawn from the record, we conclude that it analyzed for mixed

motives and "made a fact-specific determination that

[Gonzalez-Arevalo] had not shown that the persecution was

motivated by a family relationship." Barnica-Lopez,

-30 (quoting Villalta-Martinez,

).

This makes Gonzalez-Arevalo's analogy to Aldana-Ramos

inapt. There, we vacated the BIA's decision "because it did not

allow for the possibility of mixed motives" at all.

. Here, the BIA acknowledged that possibility because it cited

the mixed-motive standard before concluding that the facts did not

bear out Gonzalez-Arevalo's argument. Aldana-Ramos is not like

this case.

- 15 - One final point. Gonzalez-Arevalo implies that the

agency had to infer that his family membership motivated his

persecutors (whoever they were) because his family members and

family friend were killed. But "'[t]he mere fact that [a

persecutor] exclusively targeted [family] members' does not compel

the logical inference that kinship motivated" a petitioner's harm.4

Loja-Tene,

(alterations in original) (quoting

Marín-Portillo v. Lynch,

(1st Cir. 2016)); see

Barnica-Lopez,

. Although the agency might have

inferred kinship-based persecution from this pattern, the record

also made it plausible that family membership was subordinate to

reprisal in his persecutors' minds. See Ruiz,

.

For example, Gonzalez-Arevalo testified consistently that he was

targeted for reprisal over the killers' incarceration, and he

presented nothing to tie the 2010 attacks or gang-related deaths

in Guatemala to his kinship. When "the record supports plausible

4 This is not a case where persecutors only imputed a family member's actions to an asylum seeker. See Pineda-Maldonado v. Garland,

(1st Cir. 2024). Gonzalez-Arevalo testified consistently that his persecutors believed that he was responsible for his father and uncle's killers' incarceration. The agency concluded from this testimony that Gonzalez-Arevalo's persecutors retaliated against him because of what they believed he did, not what another family member did. Substantial evidence therefore supports its conclusion that retribution was "at the root" of the alleged persecution. Barnica-Lopez,

(quoting Ruiz-Escobar,

) (substantial evidence supported the agency's finding that retribution motivated persecution where the petitioners testified that their assailants were motivated by "revenge").

- 16 - but conflicting inferences in an immigration case, the [agency's]

choice between those inferences is, a fortiori, supported by

substantial evidence." Villafranca v. Lynch,

(1st

Cir. 2015) (quoting Hincapie,

). So it is here.

We uphold the agency's finding that Gonzalez-Arevalo's

family membership was not one central reason for his persecution.

Accordingly, he was not entitled to a presumption of future

persecution. "Fear of future persecution, like past persecution,

must be on account of a protected ground." Esteban-Garcia,

. The agency also rejected Gonzalez-Arevalo's

future-persecution claim based on his failure to prove a nexus

between his harm and a protected ground. Substantial evidence

supported that finding for the reasons we explained above. See

.

Gonzalez-Arevalo failed to establish a nexus between his

harm and a protected ground. Accordingly, we need not consider

his remaining arguments. See

.

C. Withholding of Removal

"[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."

(alteration in original) (quoting López-Pérez,

).

Gonzalez-Arevalo cannot meet the asylum standard, so he cannot

meet the withholding of removal standard.

- 17 - III. CONCLUSION

We need go no further. Substantial evidence supports

the agency's finding that Gonzalez-Arevalo did not prove

persecution "on account of" a protected ground.

(a)(42)(A). We thus deny his petition.

- 18 -