Julio Matul-Hernandez v. Eric H. Holder, Jr.

Filing

OPINION FILED - THE COURT: ROGER L. WOLLMAN, STEVEN M. COLLOTON and DUANE BENTON. Roger L. Wollman, Authoring Judge (PUBLISHED) [3932403] [11-2068]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________
No. 11-2068
___________
Julio Matul-Hernandez,

*
*
Appellant,
*
* Petition for Review
v.
* of an Order of the
* Board of Immigration Appeals.
Eric H. Holder, Jr., Attorney General
*
of the United States,
*
*
Appellee.
*
___________
Submitted: March 14, 2012
Filed: July 17, 2012
___________
Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.
___________
WOLLMAN, Circuit Judge.
Julio Matul-Hernandez seeks review of the Board of Immigration Appeals
(BIA) order denying his application for asylum and withholding of removal. We deny
the petition for review.
I. Background
Matul-Hernandez was born in San Francisco, La Union, Quetcaltenango,
Guatemala. He was forced into the Guatemalan army as a teenager, and after
approximately a year and a half, he deserted during a training exercise in the

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mountains. Matul-Hernandez left Guatemala at age sixteen or seventeen and crossed
into Mexico. He lived in Cancun, Mexico, and worked in a fruit market there for
about five years.
On May 10, 1993, Matul-Hernandez left Mexico and illegally entered the
United States. He moved to Nebraska in 1994. At the time of his hearing before the
immigration judge (IJ), Matul-Hernandez owned a grocery store in Grand Island,
Nebraska.
Since leaving Guatemala, Matul-Hernandez has returned on several occasions.
While living in Cancun, he returned to Guatemala for two weeks to get married.
During this visit, Matul-Hernandez did not have contact with any government officials
or any trouble with guerillas or other criminals. Matul-Hernandez also returned a
number of times during 1999 and 2000 to visit his mother, who was hospitalized and
very ill. He lived in Chiapas, Mexico, for approximately seven months and would go
to Guatemala for two or three days at a time to see his mother. During one of these
visits, Matul-Hernandez was threatened by a group of three armed men while he was
in his father’s store. The men were looking for Matul-Hernandez, but when
questioned, he told them he was just a customer at the store and was not related to his
father’s family. The men did not harm Matul-Hernandez, who returned to the United
States in July 2000.
Two members of Matul-Hernandez’s family, his uncle and his brother, have
been victims of violent crime in Guatemala. In November 2005, one of MatulHernandez’s uncles, who had lived in the United States for twenty years, visited
Guatemala and was kidnapped and later killed. The kidnappers asked for $125,000
ransom, but the family was able to pay only half. After the kidnapping, MatulHernandez’s family members received phone calls threatening the family.
Guatemalan police officers arrested Israel Abundio Gonzalez Garcia for the
kidnapping, but after he paid his bond Gonzalez Garcia fled to Miami, where he later
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died. Since the kidnapping and murder, Matul-Hernandez’s two other uncles who
reside in the United States have not visited Guatemala. Later, Matul-Hernandez’s
brother was attacked and beaten by multiple men who asked him if he was a part of
the family. His brother was taken to the hospital and survived the incident.
The government commenced removal proceedings against Matul-Hernandez
in 2005.1 Matul-Hernandez submitted an application for asylum2 or withholding of
removal, and in the alternative applied for the privilege of voluntarily departing the
United States. See 8 U.S.C. §§ 1158, 1231(b)(3), and 1229c. Matul-Hernandez based
his asylum application on his membership in a particular social group, which he
defined as “Guatemalans returning from the United States who are perceived as
wealthy.” Although the IJ found Matul-Hernandez’s testimony to be credible, he
denied Matul-Hernandez’s application for asylum and withholding of removal,
concluding that Matul-Hernandez did not meet the requirements for a grant of asylum.
The IJ did, however, grant Matul-Hernandez voluntary departure.
Matul-Hernandez appealed the IJ’s order to the BIA. The BIA, based on the
IJ’s findings of fact, determined that Matul-Hernandez did not meet his burden of
showing past persecution or a reasonable probability of future persecution, that he did
not show that the government of Guatemala was unable or unwilling to control alleged
persecutors, and that there was little evidence that his social group would be perceived

1

Matul-Hernandez conceded that he is removable under section 212(a)(6)(A)(i)
of the Immigration and Nationality Act (INA), which states that “[a]n alien present in
the United States without being admitted or paroled, or who arrives in the United
States at any time or place other than as designated by the Attorney General, is
inadmissible.” 8 U.S.C. § 1182(a)(6)(A)(i).
2

Matul-Hernandez first completed an asylum application in March of 1994. The
asylum application that is the subject of this review is his updated application,
completed in September of 2008.
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as a group by society or subject to a higher incidence of crime than the rest of the
population. The BIA dismissed the appeal on April 20, 2011.
Matul-Hernandez challenges the BIA’s decision and seeks a grant of asylum,
relief under the Convention Against Torture, or withholding of removal. He argues
that he is a member of two socially recognizable groups: “Guatemalans returning from
the United States who are perceived as wealthy,” and “family members of kidnapped
and murdered victims in Guatemala.”
II. Discussion
A. Standard of Review
“We review the BIA’s decision, as it is the final agency decision; however, to
the extent that the BIA adopted the findings or reasoning of the IJ, we also review the
IJ’s decision as part of the final agency action.” Davila-Mejia v. Mukasey, 531 F.3d
624, 627 (8th Cir. 2008) (citing Falaja v. Gonzales, 418 F.3d 889, 894 (8th Cir.
2005)). “A denial of asylum is reviewed for abuse of discretion; underlying factual
findings are reviewed for substantial support in the record.” Id. (quoting Hassan v.
Gonzales, 484 F.3d 513, 516 (8th Cir. 2007)). The BIA’s findings regarding
eligibility for withholding of removal are also reviewed for substantial evidence. Al
Yatim v. Mukasey, 531 F.3d 584, 587 (8th Cir. 2008) (citing Mouawad v. Gonzales,
485 F.3d 405, 413 (8th Cir. 2007)). Review for substantial evidence is an “extremely
deferential standard of review.” Id. (quoting Salkeld v. Gonzales, 420 F.3d 804, 809
(8th Cir. 2005)). “We review the BIA’s legal determinations de novo, according
substantial deference to the BIA’s interpretation of the statutes and regulations it
administers.” Davila-Mejia, 531 F.3d at 627 (citing Hassan, 484 F.3d at 516).

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B. Asylum
“The Attorney General has discretion to grant asylum to a refugee.” Al Yatim,
531 F.3d at 587 (citing Makatengkeng v. Gonzales, 495 F.3d 876, 881 (8th Cir.
2007)). The applicant for asylum bears the burden of proving that he or she is a
refugee as defined by the Immigration and Nationality Act (INA). 8 C.F.R.
§ 1208.13(a). A refugee is a person unwilling or unable to return to the country of
their 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 . . . .” 8 U.S.C. § 1101(a)(42)(A).
“Persecution includes the credible threat of death, torture, or injury to one’s
person or liberty on account of a protected ground.” Al Yatim, 531 F.3d at 587 (citing
Regalado-Garcia v. INS, 305 F.3d 784, 787 (8th Cir. 2002)). “‘Persecution is an
extreme concept’ that ‘does not include low-level intimidation and harassment.’”
Lopez-Amador v. Holder, 649 F.3d 880, 884 (8th Cir. 2011) (quoting Zakirov v.
Ashcroft, 384 F.3d 541, 546 (8th Cir. 2004)). Additionally, persecution requires the
asylum applicant to show that “the assaults were either condoned by the government
or were committed by private actors ‘that the government was unwilling or unable to
control.’” Beck v. Mukasey, 527 F.3d 737, 740 (8th Cir. 2008) (quoting Menjivar v.
Gonzales, 416 F.3d 918, 921 (8th Cir. 2005)).
An applicant for asylum who establishes past persecution is presumed to have
a well-founded fear of future persecution. 8 C.F.R. §1208.13(b). An applicant who
does not demonstrate past persecution must show “an objectively reasonable fear of
particularized persecution” in the future. Al Yatim, 531 F.3d at 587 (citation omitted).
“To overcome the BIA’s finding that [petitioner] lacked a well-founded fear of
persecution, [petitioner] must show the evidence he presented was so compelling that
no reasonable factfinder could fail to find the requisite fear of persecution.” Davila-

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Mejia, 531 F.3d at 628 (alteration in original) (quoting Ghasemimehr v. INS, 7 F.3d
1389, 1390 (8th Cir. 1993) (internal citations and quotations omitted)).
The BIA found that Matul-Hernandez did not meet his burden to show a wellfounded fear of persecution upon return to Guatemala on account of his membership
in a particular social group, namely, Guatemalans returning from the United States
who are perceived as wealthy. This determination was based on the IJ’s factual
finding that although Matul-Hernandez was threatened by the three men in his father’s
store, he has not been physically harmed by gangs or criminals in Guatemala. The
BIA’s determination that Matul-Hernandez’s experiences do not rise to the level of
past persecution is supported by substantial evidence in the record. The BIA and IJ
also found that Matul-Hernandez had not established a well-founded fear of
persecution based on membership in a particular social group because MatulHernandez failed to establish membership in such a group. We agree.
The phrase “particular social group” is not defined in the INA. Ngengwe v.
Mukasey, 543 F.3d 1029, 1033 (8th Cir. 2008). “As a result, we give Chevron
deference to the BIA’s reasonable interpretation of the phrase, and will not overturn
the BIA’s conclusion unless it is ‘arbitrary, capricious, or manifestly contrary to the
statute.’” Gaitan v. Holder, 671 F.3d 678, 680 (8th Cir. 2012) (citing Ngengwe, 543
F.3d at 1033 and Chevron, U.S.A., Inc., v. Nat’l Res. Def. Council, Inc., 467 U.S. 837,
842-44 (1984)); see also Holder v. Martinez Gutierrez, 132 S. Ct. 2011, 2017 (2012)
(the BIA’s construction “prevails if it is a reasonable construction of the statute,
whether or not it is the only possible interpretation or even the one a court might think
best.”) (citations omitted). The BIA construes the term to mean people who “hold an
immutable characteristic, or common trait such as sex, color, kinship, or in some cases
shared past experiences.” Davila-Mejia, 531 F.3d 628 (citing In re Acosta, 19 I & N
Dec. 211, 233 (BIA 1985)). In a 2007 decision, In re A-M-E- & J-G-U-, 24 I & N
Dec. 69 (BIA 2007), the BIA found that “affluent Guatemalans” do not constitute a

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particular social group within the meaning of the INA, because the group lacked the
requisite particularity and social visibility.
We faced a similar question in Davila-Mejia, when we held that the group
“competing family business owners” in Guatemala is not a particular social group
within the meaning of the INA. 531 F.3d at 629. In Davila-Mejia, we relied on the
BIA’s decision in A-M-E- & J-G-U-, and noted that the petitioners in that case had not
presented evidence that family business owners in Guatemala were “recognized as a
group that is at a greater risk of crime in general or of extortion, robbery, or threats in
particular.” Id.
Here, the BIA found that “Guatemalans returning from the United States who
are perceived as wealthy” are a not particular and socially visible group such that they
could be perceived as a group and targeted for persecution. The BIA relied on the
IJ’s factual findings that although “crime and violence are significant problems” in
Guatemala, “the respondent did not demonstrate that it is a common pattern or practice
in Guatemala to kidnap individuals returning from the United States based on their
perceived wealth.” As the IJ and BIA noted, Matul-Hernandez presented no evidence
that his uncle’s kidnapping and ransom request were at all related to the fact that he
was visiting from the United States. The BIA also found that there was little evidence
that the purported group would be perceived as a determinable group by society or
subject to a higher incidence of crime than the rest of the population.
In addition to concluding that the BIA’s determination is supported by
substantial evidence, we are persuaded by the reasoning of the First Circuit in
addressing this issue: “[N]othing indicates that in Guatemala individuals perceived
to be wealthy are persecuted because they belong to a social class or group. In a
poorly policed country, rich and poor are all prey to criminals who care about nothing
more than taking it for themselves.” Sicaju-Diaz v. Holder, 663 F.3d 1, 4 (1st Cir.
2011) (rejecting as a social group Guatemalans returning after a long residence in the
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United States and therefore perceived as wealthy and particularly susceptible to
extortionate and/or kidnapping demands). We agree with the BIA that the group
“Guatemalans returning from the United States who are perceived as wealthy” is not
a particular social group within the meaning of the INA.
Matul-Hernandez’s argument that he is part of a second social group, “family
members of kidnapped and murdered victims in Guatemala,” that is subject to
persecution, was not raised below. We have consistently held that we may not
consider an issue that a petitioner has failed to raise before the BIA. Manani v. Filip,
552 F.3d 894, 900 n.4 (8th Cir. 2009); Zine v. Mukasey, 517 F.3d 535, 539-40 (8th
Cir. 2008); Etchu-Njang v. Gonzales, 403 F.3d 577, 581-84 (8th Cir. 2005).
C. Withholding of Removal
Withholding of removal requires a greater showing by the applicant: that there
is a “clear probability of persecution.” Guled v. Mukasey, 515 F.3d 872, 881 (8th Cir.
2008). “Therefore, an alien who cannot meet the standard for asylum cannot meet the
standard for establishing withholding of removal.” Id. (citing Ngure v. Ashcroft, 367
F.3d 975, 992 (8th Cir. 2004)). Because Matul-Hernandez did not establish the wellfounded fear of persecution required for asylum, he did not meet the more rigorous
burden of showing a clear probability of persecution.
D. Convention Against Torture
In his brief, Matul-Hernandez also requests relief under the Convention Against
Torture. Matul-Hernandez claims that this is not a new argument raised on appeal
because he included the elements required for relief in his pre-hearing brief without

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mentioning the Convention Against Torture.3 We disagree, because the issue was not
raised below. The word “torture” does not appear in the brief, government consent
or awareness of violent crime before it occurs is not mentioned, and in his conclusion
Matul-Hernandez requests only that “this court grant him asylum, or in the alternative,
Withholding of Removal, or Voluntary Departure.” The IJ did not address the issue,
and the BIA explicitly noted that “[t]he respondent did not seek protection under the
Convention Against Torture, and [such protection] is thus deemed waived.”
Because Matul-Hernandez did not raise the issue before the BIA, we may not
consider this claim. Manani, 552 F.3d at 900 n.4.
III.
We deny the petition for review.
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To be eligible for relief, Matul-Hernandez would have had to demonstrate (1)
that it is more likely than not that he would be subjected to torture if returned to
Guatemala and (2) that such torture would be inflicted with the consent or
acquiescence of a public official. Menjivar, 416 F.3d at 923 (citing 8 C.F.R.
§§ 208.16(c)(2) and 208.18(a)(1)). Acquiescence, in turn, requires prior awareness of
the torture and a breach of legal responsibility to intervene. Id. (citations omitted).
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