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Mayorga-Rosa v. Sessions

United States Court of Appeals, Eighth Circuit

April 24, 2018

Carlos Agusto Mayorga-Rosa Petitioner
v.
Jefferson B. Sessions, III, Attorney General of the United States Respondent

          Submitted: February 15, 2018

          Petition for Review of an Order of the Board of Immigration Appeals.

          Before LOKEN, BENTON, and ERICKSON, Circuit Judges.

          BENTON, Circuit Judge.

         The government began removal proceedings against Carlos A. Mayorga-Rosa, a Guatemalan citizen who entered the United States illegally. He sought asylum, withholding of removal, and protection under the Convention Against Torture. The immigration judge denied relief. The Board of Immigration Appeals dismissed his appeal. Having jurisdiction under 8 U.S.C. § 1252, this court denies the petition for review.

          I.

         Mayorga-Rosa testified that in 2010, he refused Freddie Rivera's request to distribute drugs in the United States. Mayorga-Rosa then talked to a man named Rafael about his conversation with Rivera. Rafael later told Rivera that Mayorga-Rosa had discussed Rivera's request. Mayorga-Rosa claims that due to this, Rivera had Mayorga-Rosa's cousin murdered. The murder happened in 2013, two weeks after his cousin-also known as "Carlos Mayorga"-returned to Guatemala from the United States. Mayorga-Rosa believes he was the intended target of the murder, and that his cousin was mistakenly killed because they went by the same name. He testified he is afraid to return to Guatemala because Rivera might kill him.

         "To be eligible for asylum, an applicant must show that she is unable or unwilling to return to her country of origin '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.'" Marroquin-Ochoma v. Holder, 574 F.3d 574, 577 (8th Cir. 2009), quoting 8 U.S.C. § 1101(a)(42)(A). "An alien is eligible for withholding of removal upon showing a clear probability that his 'life or freedom would be threatened in that country because of [his] race, religion, nationality, membership in a particular social group, or political opinion.'" Quinonez-Perez v. Holder, 635 F.3d 342, 345 (8th Cir. 2011) (alteration in original), quoting 8 U.S.C. § 1231(b)(3)(A). "The clear probability standard for withholding of removal is more onerous than the well-founded fear standard for asylum." Malonga v. Mukasey, 546 F.3d 546, 551 (8th Cir. 2008).

         Mayorga-Rosa argues that he has a well-founded fear of persecution based on his membership in a particular social group. He did not, however, propose a group. The immigration judge "infer[red] that the social group relates to refusal to participate in drug trafficking and speaking out of turn about a solicitation to become involved in drug trafficking." The immigration judge concluded this group is insufficient:

As the case law has held concerning gangs, fear of gangs, fear of gang recruitment, individuals returning from the United States who may be perceived as wealthy, people who fear gangs because of family members who are gang members or former gang members, and a host of other situations involving gang and gang violence, do not constitute particular social groups.

         At the BIA, Mayorga-Rosa contended that the immigration judge did not allow closing arguments, when he planned to propose a group. The BIA explained that Mayorga-Rosa "had an obligation to present his proposed social group" to the immigration judge, and he did "not have a legal right to present a closing argument and should not have waited until the end of the hearing to designate a social group."

         II.

         "We review questions of law de novo, and we review the agency's factual determinations under the substantial evidence standard, reversing only where a petitioner demonstrates that the evidence was so compelling that no reasonable fact finder could fail to find in favor of the petitioner." De Castro-Gutierrez v. Holder, 713 F.3d 375, 379 (8th Cir. 2013) (citation and internal quotation marks omitted). "This court reviews the BIA's decision as the final agency action, but to the extent the BIA adopts the findings of the IJ, this court reviews those findings as part of the final agency action." R.K.N. v. Holder, 701 F.3d 535, 537 (8th Cir. 2012).

         Mayorga-Rosa argues that the BIA should have required the immigration judge to "seek clarification" about the social group. He relies on the BIA's decision in Matter of W-Y-C- & H-O-B-, 27 I&N Dec. 189 (BIA 2018). There, the BIA described when an immigration judge must "seek ...


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