United States Court of Appeals For the First Circuit

No. 23-1166

MARIELA GRICELDA CHUN MENDEZ; Y.Y.C.,

Petitioners,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Before

Gelpí, Howard, and Rikelman, Circuit Judges.

Daniel T. Welch, with whom Kevin P. MacMurray and MacMurray & Associates were on brief, for petitioners.

Remi Da Rocha-Afodu, Trial Attorney, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, with whom Bryan M. Boynton, Principal Deputy Assistant Attorney General, Civil Division, and David J. Schor, Senior Litigation Counsel, Office of Immigration Litigation, were on brief, for respondent.

March 15, 2024 GELPÍ, Circuit Judge. Lead petitioner Mariela Gricelda

Chun Mendez ("Chun Mendez") and her minor son, natives and citizens

of Guatemala, petition for review of the final order of the Board

of Immigration Appeals ("BIA") affirming the Immigration Judge's

("IJ") denial of asylum and withholding of removal under the

Immigration and Nationality Act ("INA") and protection under the

Convention Against Torture ("CAT"). Chun Mendez challenges the

BIA's affirmance of the IJ's findings that she failed to establish

extraordinary circumstances to excuse the late filing of her asylum

application and that she failed to establish eligibility for

withholding of removal because she did not demonstrate that she

was a member of the particular social group that she had delineated

to the agency. After careful review, we deny the petition.

I. BACKGROUND

A. Factual Background

We derive the following facts from the administrative

record, including Chun Mendez's testimony before the IJ, which the

IJ found credible. See Adeyanju v. Garland,

(1st

Cir. 2022) (citing Martínez-Pérez v. Sessions,

, 37 n.1

(1st Cir. 2018)).

Chun Mendez was born in Ixchiguán, Guatemala, and is an

indigenous woman of Mam descent. While in Ixchiguán, she lived

with her grandmother in the village of Buena Vista Nuevos

Horizontes ("Nuevos Horizontes"). Her grandmother owns the house in which they lived, a house that has been in Chun Mendez's family

for "a long time."

In November 2013, Chun Mendez fled Guatemala with her

minor son to escape ongoing violence between Nuevos Horizontes and

the neighboring municipality of Tajumulco over land and water

rights. Chun Mendez testified that, "every month or two," people

from Tajumulco went to Nuevos Horizontes and fired shots at the

villagers there with the intention of "get[ting them] out of"

Nuevos Horizontes, claiming that the land was theirs. When the

shootings occurred, Chun Mendez and other Nuevos Horizontes

villagers were forced to temporarily flee to neighboring villages.

When Chun Mendez returned to her grandmother's house, she would

find the house empty and her belongings destroyed. Chun Mendez

testified that she heard that "people who did not escape during

the attacks were tied up and tortured, or shot to death by the

people of Tajumulco." The people of Tajumulco also deprived Nuevos

Horizontes of water by cutting off the village's water supply.

On or around December 5, 2013, Chun Mendez and her minor

son entered the United States at or near Hidalgo, Texas, without

being admitted or paroled after inspection by an immigration

officer. Shortly after their entry, Department of Homeland

Security officials apprehended and subsequently issued them

individual Notices to Appear. Chun Mendez and her minor son were

charged with removability under

(a)(6)(A)(i) for being present in the United States without being admitted or

paroled, or for entering the United States at any time or place

other than as designated by the Attorney General. They conceded

removability as charged.

On March 1, 2016, Chun Mendez filed a Form I-589

application for asylum, withholding of removal, and protection

under the CAT, including her minor son as a derivative applicant.1

She sought asylum and withholding of removal based on (1) her

membership in the particular social group ("PSG") of "communal

landowners of Ixchiguán, Guatemala that refused to cooperate with

criminal gangs" and (2) "her race as an indigenous woman of Mam

descent."2 Chun Mendez testified that she did not file her asylum

application within the first year of arrival in the United States

because she was suffering from headaches, nausea, and dizziness,

and became pregnant with her second child after her arrival. She

further testified that she began therapy around 2015 as a result

of her experiences in Guatemala. She explained that, when she

1 Chun Mendez's minor son also filed a separate Form I-589 application for asylum, withholding of removal, and protection under the CAT, based on the same underlying facts as Chun Mendez's application. See

(b)(3)(A). Chun Mendez, however, was the lead respondent before the agency, and the only one who testified in support of the applications. 2 In their Form I-589 applications, Chun Mendez and her minor son also indicated that they sought asylum and withholding of removal based on their political opinion. This claim, however, was not developed before the agency and is not at issue before us. arrived in the United States, she was "dealing with these issues

and trying to seek medical treatment," and was unaware of the

asylum application process. Chun Mendez presented medical records

detailing her diagnoses for tension-type headaches, vestibular

dizziness, anxiety disorder, and mild recurrent major depression.

B. Procedural Background

On July 16, 2019, the IJ issued a written decision

denying Chun Mendez's application for asylum, withholding of

removal, and protection under the CAT.3 First, after finding that

Chun Mendez had testified credibly, the IJ addressed the timeliness

of her asylum application. The IJ determined that Chun Mendez had

not filed her asylum application within one year of her arrival in

the United States. The IJ then acknowledged Chun Mendez's

testimony that she suffered from headaches, nausea, and dizziness,

and that she became pregnant with her second child after arriving

in the United States. The IJ then stated that "[w]hile serious

illness, mental health issues, or physical conditions may amount

to extraordinary circumstances that will excuse late filing [of an

asylum application], [Chun Mendez's] health conditions in this

3This written decision followed the IJ's September 2017 oral decision denying Chun Mendez's application for asylum, withholding of removal, and protection under the CAT, which Chun Mendez appealed to the BIA, arguing that the IJ issued an insufficient decision. In September 2018, the BIA found that the oral decision "provide[d] an insufficient basis upon which the [BIA] c[ould] adequately conduct a meaningful review" and remanded the proceedings to the IJ. case [we]re not severe enough to have prevented her from filing

her asylum application in a timely manner." The IJ found that

Chun Mendez "was able to travel to and from appointments

and . . . was not incapacitated or otherwise prevented from

seeking out an attorney or filing her application for asylum."

The IJ finally concluded that "[Chun Mendez's] medical issues and

child rearing d[id] not amount to extraordinary circumstances"

that excused the late filing of her asylum application.

Second, the IJ determined that, "[e]ven if [Chun Mendez]

had timely filed her application for asylum," her experiences in

Guatemala did not rise to the level of past persecution. The IJ

stated that "persecution does not encompass generally harsh

conditions shared by many others in a country, or the harm an

individual may experience as a result of generalized violence

stemming from civil strife or conflict." The IJ then concluded

that, because Chun Mendez's "experiences [in Ixchiguán] stem[med]

from the land and water disputes impacting everyone in the region,"

her "experiences of suffering from civil conflict d[id] not rise

to the level of past persecution."

Third, the IJ found that Chun Mendez had not established

a well-founded fear of future persecution on account of a protected

ground. The IJ first addressed Chun Mendez's claimed membership

in the PSG of "communal landowners of Ixchiguán, Guatemala that

refused to cooperate with criminal gangs." After assuming without deciding that the PSG was cognizable, the IJ nonetheless found

that because Chun Mendez "testified that she [was] not a landowner

and that her grandmother owns the house in Ixchiguán, and there is

insufficient evidence in the record that [Chun Mendez] has communal

ownership of the land," Chun Mendez had not established membership

in the PSG. The IJ further determined that, even if Chun Mendez

had established membership in the PSG, she "ha[d] not established

an objectively reasonable fear of persecution."

The IJ then turned to Chun Mendez's claim of having a

well-founded fear of persecution on account of her race as an

indigenous woman of Mam descent and found that she "ha[d] not

demonstrated that [she] would be singled out for persecution or

that there is a pattern or practice of persecuting individuals of

[her] race." The IJ noted that the evidence in the record, as

well as Chun Mendez's testimony, "indicate[d] that the harm [she]

fear[s] is on account of a decade's old land and resources dispute"

and is not motivated, at least in part, by her race. Thus, the IJ

denied Chun Mendez's application for asylum.

The IJ then addressed Chun Mendez's withholding of removal

claim. The IJ found that because Chun Mendez had failed to

demonstrate statutory eligibility for asylum, she was "unable to

satisfy [her] burden under the stricter more likely than not

standard for withholding of removal," noting that Chun Mendez's

"withholding of removal claim[] suffer[ed] from the same defects as [her] asylum claim." Thus, the IJ denied Chun Mendez's

application for withholding of removal. Finally, the IJ also

denied Chun Mendez's request for protection under the CAT, finding

that neither her testimony nor the record support the conclusion

that it is more likely than not that Chun Mendez would be tortured

by the Guatemalan government.

On August 16, 2019, Chun Mendez appealed the IJ's

decision to the BIA. In her brief to the BIA, Chun Mendez first

argued that the IJ erred in determining that she failed to

establish extraordinary circumstances that excused the late filing

of her asylum application. Specifically, Chun Mendez argued that

she "clearly had a serious mental illness that rises to the level

of an extraordinary circumstance," and that she "had suffered

from severe headaches and dizziness that severely affected her

ability to function."

Chun Mendez then argued that the IJ erred in finding

that she was not a member of the PSG. She again defined the PSG

as "communal landowners of Ixchiguán, Guatemala that refused to

cooperate with criminal gangs." She asserted that because she

"refused to surrender [her] land and home[] to the criminal gangs

of Tajumulco," she had "acquired an immutable characteristic of

being a communal landowner that refused to cooperate with criminal

gangs." Finally, Chun Mendez argued that she had demonstrated

harm that amounted to past persecution, and that she had similarly established a well−founded fear of persecution on account of her

membership in the PSG.

On January 20, 2023, the BIA dismissed Chun Mendez's

appeal. As to the extraordinary circumstances claim, the BIA

determined that Chun Mendez's mental health conditions "d[id] not

qualify as an extraordinary circumstance." The BIA adopted the

IJ's findings that Chun Mendez "was able to travel to and from

appointments and was not incapacitated or otherwise prevented from

seeking out an attorney or filing" her asylum application,

concluded that Chun Mendez had not established that her mental

health conditions directly related to her failure to file her

asylum application in a timely manner, and subsequently dismissed

Chun Mendez's asylum claim.

The BIA then affirmed the IJ's finding that Chun Mendez

had not established eligibility for her PSG-based withholding of

removal claim. Specifically, the BIA adopted the IJ's finding

that Chun Mendez was not a member of the PSG because she had

testified to not being a landowner, her grandmother owned the house

in Ixchiguán, and there was no evidence in the record that Chun

Mendez had communal ownership of the land.

The BIA then noted that, on appeal, Chun Mendez "d[id]

not address her claim to have suffered past persecution and have

a well-founded fear of future persecution on account of her race,

as an indigenous woman of Mam descent," and thus found the claim to be waived. Finally, the BIA stated that because Chun Mendez

had not established membership in the PSG, and "ha[d] not claimed

past harm or fear of future harm based on any other protected

ground on appeal," it would not address additional arguments

related to Chun Mendez's eligibility for withholding of removal.

Chun Mendez timely filed this petition for review.4

II. DISCUSSION

A. Standard of Review

"We review the BIA's decision in this case as the

agency's final decision and look to the IJ's decision only 'to the

extent that the BIA deferred to or adopted the IJ's reasoning.'"

Mendez v. Garland,

(1st Cir. 2023) (quoting

Chavez v. Garland,

(1st Cir. 2022)). We review

factual findings under the substantial evidence standard,

Sanchez−Vasquez v. Garland,

(1st Cir. 2021),

upholding the "findings unless the record compels a contrary

conclusion," Espinoza-Ochoa v. Garland,

(1st

Cir. 2023) (citing Varela-Chavarria v. Garland,

(1st Cir. 2023)). We review legal conclusions de novo, "giving

deference to the agency's reasonable interpretation of the

4 On appeal to the BIA, Chun Mendez did not challenge the IJ's denial of her request for protection under the CAT and does not develop any arguments as to this claim before us. Thus, we focus on her asylum and withholding of removal claims. Cf. United States v. Zannino,

(1st Cir. 1990). statutes and regulations within its purview." Gonzalez v. Holder,

(1st Cir. 2012) (citing Castañeda–Castillo v.

Holder,

(1st Cir. 2011)).

B. Legal Framework

1. Asylum

An applicant for asylum must establish that she is a

"refugee" within the meaning of the INA.

(b)(1)(A)−(B)(i). The INA defines "refugee" as someone who

is unable or unwilling to return to and to avail herself of the

protection of her country of nationality "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."

(a)(42)(A). The protected ground must

"be at least one central reason for [the] persecuti[on]."

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

2. Withholding of Removal

To be eligible for withholding of removal, "the burden

is even higher." Valera-Chavarria,

. The applicant

must show that her "life or freedom would be threatened in th[e]

country [of removal] because of [her] race, religion, nationality,

membership in a particular social group, or political opinion."

(b)(3)(A). Specifically, the applicant "must

establish a clear probability that, if returned to h[er] homeland,

[s]he will be persecuted on account of a statutorily protected ground." Sanchez-Vasquez,

. Because of "the

substantive similarities in the standards for asylum and

withholding of removal claims," Espinoza-Ochoa,

,

"'asylum precedents may be helpful in analyzing

withholding−of−removal cases,' and vice versa," Barnica-Lopez v.

Garland,

(1st Cir. 2023) (quoting

Sanchez-Vasquez,

).

C. Timeliness of Asylum Application

We begin with the government's contention that we lack

jurisdiction to review the denial of Chun Mendez's asylum

application as untimely. Ordinarily, an asylum applicant must

"demonstrate[] by clear and convincing evidence that the

application has been filed within [one] year after the date of the

[applicant's] arrival in the United States."

(a)(2)(B). Untimely applications, however, may be

considered if the applicant demonstrates "either the existence of

changed circumstances which materially affect the applicant's

eligibility for asylum or extraordinary circumstances relating to

the delay in filing an application."

(a)(2)(D).

To demonstrate extraordinary circumstances, the applicant must

establish (1) "that the circumstances were not intentionally

created by the [applicant through her] own action or inaction,"

(2) "that those circumstances were directly related to the

[applicant's] failure to file the application within the [one−year deadline]," and (3) "that the delay was reasonable under the

circumstances."

(a)(5).

We have recognized that "Congress has 'carefully

circumscribed the scope of judicial review with respect to

timeliness determinations in asylum cases.'" Ixcuna-Garcia v.

Garland,

(1st Cir. 2022) (quoting Pan v. Gonzales,

(1st Cir. 2007)). The relevant statute provides

that "[n]o court shall have jurisdiction to review any

determination of the Attorney General" concerning, among other

things, the timeliness of an asylum application and whether an

applicant demonstrated extraordinary circumstances related to the

delay in filing the application.

(a)(3). This

jurisdictional bar, however, does not "preclud[e] review of

constitutional claims or questions of law raised upon a petition

for review."

(a)(2)(D). Accordingly, the "key

that [would] unlock[] federal court review in [this] case[] is a

'colorable' constitutional or legal question that is not simply a

'thinly−veiled challenge to the [agency's] factfinding.'"

Ixcuna−Garcia,

-45 (quoting Pan,

).

Here, Chun Mendez contends that the agency did not apply

the correct legal standard under

(a)(5) to her

extraordinary circumstances claim because "both the [IJ] and the

[BIA] failed to assess the totality of the circumstances faced by

[Chun Mendez] upon entry, instead assessing the mental health and [physical] medical circumstances separately." As support for her

argument, Chun Mendez calls our attention to Guerrero−Lasprilla v.

Barr,

(2020), in which the Supreme Court found that

the phrase "questions of law" in

(a)(2)(D) includes

the application of a legal standard to undisputed or established

facts,

.

While we "typically cannot apply 'hypothetical

jurisdiction' in terms of Article III jurisdiction, we can sidestep

statutory jurisdiction when, as here, it makes sense to do so

because the resolution on the merits of the case is

straightforward." Tacuri−Tacuri v. Garland,

(1st Cir. 2021) (citing Alvarado v. Holder,

(1st

Cir. 2014)). Thus, we bypass the jurisdictional question

concerning Chun Mendez's extraordinary circumstances claim, and

turn to the merits of Chun Mendez's asylum and withholding of

removal claims.

D. PSG-Based Claims

Chun Mendez argues that the BIA erred in upholding the

IJ's determination that she was not a member of the PSG of

"communal landowners of Ixchiguán, Guatemala that refused to

cooperate with criminal gangs." Specifically, while Chun Mendez

concedes that she "did not in fact communally own the land," she advances that both the IJ and BIA "failed to consider that th[e]

membership was imputed on [Chun Mendez] by her persecutors."

We agree with the government that Chun Mendez has not

exhausted this claim of imputed membership. "Where an applicant

raises membership in a particular social group as the enumerated

ground that is the basis of her claim, she has the burden to

clearly indicate 'the exact delineation of any particular social

group(s) to which she claims to belong.'" Matter of W-Y-C- &

H-O-B-,

(B.I.A. 2018) (quoting Matter of

A-T-,

(B.I.A. 2009)). Importantly, "theories

not advanced before the BIA may not be surfaced for the first time

in a petition for judicial review of the BIA's final order."

Makhoul v. Ashcroft,

(1st Cir. 2004) (first citing

Ravindran v. INS,

(1st Cir. 1992); and then

citing Alvarez-Flores v. INS,

(1st Cir. 1990));

(d)(1) (stating that "[a] court may review a final

order of removal only if . . . the [petitioner] has exhausted all

administrative remedies available to the [petitioner] as of

right").

Chun Mendez did not raise a theory of imputed membership

before the IJ, nor did she do so before the BIA. Instead, in her

brief to the BIA, Chun Mendez argued only that she had "acquired

an immutable characteristic of being a communal

landowner . . . and therefore[ was] a member of [the PSG]." Accordingly, because Chun Mendez surfaces her theory of imputed

membership for the first time in the petition for judicial review,

this claim is unexhausted. See

(d)(1); Makhoul,

; see also Granada-Rubio v. Lynch,

(1st Cir. 2016) (per curiam) (finding PSG unexhausted where

petitioner argued to the BIA that "the MS–13 is targeting her

because they know that she is married to a man who is living and

working in the United States" but argued to us that she was "a

member of a particular social group of women with children whose

husband[s] live and work in the U.S. and it is known to society as

a whole that the husbands live in the U.S.").

Chun Mendez's concession that she was not a communal

landowner and failure to administratively exhaust her imputed

membership claim necessarily disposes of her PSG-based asylum and

withholding of removal claims. See

(a)(42)(A),

1231(b)(3)(A); see also Varela-Chavarria,

. Thus,

we need not address her remaining arguments as to these claims.

E. Race-Based Claims

Finally, Chun Mendez argues that the IJ and the BIA

failed to meaningfully assess her asylum and withholding of removal

claims on account of her race as an indigenous woman of Mam

descent.5 The IJ, however, did consider Chun Mendez's race-based

In her brief to us, Chun Mendez refers to this race-based 5

ground as "membership in the cognizable social group of Indigenous claims. And we agree with the government that these race-based

claims are unexhausted, as Chun Mendez did not raise any race−based

claim before the BIA, which she concedes. See

(d)(1); Makhoul

. Chun Mendez, however, seeks

to sidestep this conclusion by citing United States v. Olano,

(1993), for the proposition that we possess the authority

to correct certain alleged errors that were not timely raised in

front of the agency. But this argument misunderstands our role as

a reviewing court under the INA. See Garland v. Ming Dai,

, 366−67 (2021). "Because the government has raised the

exhaustion requirement and because [Chun Mendez] failed to argue

before the BIA that [she was entitled to asylum and withholding of

removal on her race-based claims], we find that such an argument

is unexhausted. We therefore decline to consider it." Odei v.

Garland,

, 78 n.1 (1st Cir. 2023) (citing

(d)(1)).

III. CONCLUSION

For the foregoing reasons, we deny the petition for

review.

Guatemalan Female[s] of Mam descent." The record and other parts of her brief, however, suggest that she refers to the only race-based ground presented to the agency: "race as an indigenous woman of Mam descent."