Arévalo-Girón v. Holder

• Citation: 667 F.3d 79
• Decision Date: 31 January 2012
• Docket Number: No. 10–2357.,10–2357.
• Parties: Marlene Lisbeth ARÉVALO–GIRÓN, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

667 F.3d 79

Marlene Lisbeth ARÉVALO–GIRÓN, Petitioner,
v.
Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 10–2357.

United States Court of Appeals, First Circuit.

Submitted Dec. 6, 2011.Decided Jan. 31, 2012.

[667 F.3d 81]

Stephen M. Born and Mills & Born on brief for petitioner.

Tony West, Assistant Attorney General, Civil Division, United States Department of Justice, William C. Peachey, Assistant Director, Office of Immigration Litigation, and Ada E. Bosque, Senior Litigation Counsel, Office of Immigration Litigation, on brief for respondent.

Before LYNCH, Chief Judge, TORRUELLA and SELYA, Circuit Judges.

SELYA, Circuit Judge.

The petitioner, Marlene Lisbeth Arévalo–Girón, is a Guatemalan national. She seeks judicial review of a final order of the Board of Immigration Appeals (BIA) denying her application for withholding of removal. After careful consideration, we deny the petition.

The petitioner entered the United States on November 1, 1997, without inspection. Some ten years later, the Department of Homeland Security discovered her presence and initiated removal proceedings against her. See 8 U.S.C. § 1182(a)(6)(A)(i); id. § 1229a(a)(2).

Before the immigration judge (IJ), the petitioner conceded removability but cross-applied for asylum, withholding of removal, and protection under the United States Convention Against Torture (CAT). In support, she asserted that if returned to Guatemala, she would face persecution on account of her status as either a single woman with perceived wealth or a former “child of war.” The IJ determined that her claim for asylum was time-barred; denied withholding of removal on the ground that she had failed to demonstrate a likelihood of persecution in Guatemala on account of a statutorily protected status; and dismissed her entreaty for CAT relief because she had not shown any governmental involvement in the feared harm.

The BIA affirmed the IJ's decision. This timely petition for judicial review followed. In it, the petitioner challenges only the denial of withholding of removal.¹

Because the BIA added its own gloss to the IJ's reasoning, we review the two decisions as a unit. See Lopez Perez v. Holder, 587 F.3d 456, 460 (1st Cir.2009). In conducting that review, we test the agency's factual findings, including credibility determinations, under the familiar substantial evidence rule. Morgan v. Holder, 634 F.3d 53, 56–57 (1st Cir.2011). This rule requires us to accept all factual findings that are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Nikijuluw v. Gonzales, 427 F.3d 115, 120 (1st Cir.2005) (quoting INS v. Elias–Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)) (internal quotation

[667 F.3d 82]

marks omitted). In other words, we must uphold such a finding unless the record compels a contrary conclusion. See 8 U.S.C. § 1252(b)(4)(B); Sompotan v. Mukasey, 533 F.3d 63, 68 (1st Cir.2008). By contrast, we review legal conclusions de novo, ceding some deference, however, to the agency's interpretation of statutes and regulations that fall within its purview. See Mendez–Barrera v. Holder, 602 F.3d 21, 24 (1st Cir.2010).

To prove an entitlement to withholding of removal, an alien bears the burden of demonstrating a clear probability that her life or freedom would be threatened in her homeland on account of her race, religion, nationality, membership in a particular social group, or political opinion. See 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 208.16(b); see also Morgan, 634 F.3d at 60. This burden can be carried in two ways: the alien can show either that she has suffered past persecution (giving rise to a rebuttable presumption of future persecution) or that, upon repatriation, a likelihood of future persecution independently exists. See López–Castro v. Holder, 577 F.3d 49, 52 (1st Cir.2009); 8 C.F.R. § 208.16(b)(1)–(2). Regardless of which path the alien travels, she must establish a connection between the feared harm and one of the five statutorily protected grounds. See Lopez Perez, 587 F.3d at...