Submitted: December 12, 2018
Petition for Review of an Order of the Board of Immigration
LOKEN, MELLOY, and ERICKSON, Circuit Judges.
Martin Martin, a native and citizen of Guatemala, entered the
United States without inspection in 2010 and applied for
asylum, withholding of removal, and relief under the
Convention Against Torture ("CAT"). His son, Maynor
Martin-Vicente, entered the United States in 2014 and, based
on the same events and similar circumstances as his father,
applied for the same relief, both as a "rider" on
Martin Martin's application and in an independent asylum
application. The Department of Homeland Security initiated
removal proceedings. Both petitioners conceded removability.
The Immigration Judge consolidated their removal proceedings
and, after a hearing at which Martin Martin testified, denied
all claims for relief in a lengthy opinion. The Board of
Immigration Appeals (BIA) affirmed in a thorough opinion.
Martin Martin and Maynor petition for review of the BIA's
final agency action. See 8 U.S.C. § 1252.
Concluding the BIA order was "supported by reasonable,
substantial, and probative evidence on the record considered
as a whole," we deny the petition for review. INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992) (standard of
review); see 8 U.S.C. § 1252(b)(4)(B).
Attorney General may grant asylum to a "refugee." 8
U.S.C. § 1158(b)(1). "Refugee" is defined as
an alien unable or unwilling to return to his home country
"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). "An
applicant who has been found to have established . . . past
persecution shall also be presumed to have a well-founded
fear of [future] persecution." 8 C.F.R. § 208.13.
Martin Martin claims past persecution and a well-founded fear
of future persecution in Guatemala because of his ethnicity
and membership in a particular social group. We review the
BIA's findings on these issues under the deferential
substantial evidence standard. See Menendez-Donis v.
Ashcroft, 360 F.3d 915, 917-19 (8th Cir. 2004);
Regalado-Garcia v. INS, 305 F.3d 784, 787-88 (8th
Martin was born in Guatemala on March 6, 1975. He is of
indigenous Mam ethnicity and speaks the Mam (Maya) language.
In 1984, he fled to Mexico with his family because of the
ongoing conflict between guerilla forces and the Guatemalan
government. At the asylum hearing, Martin Martin testified
that, during the conflict, guerillas and the Guatemalan
government fumigated crops and took "everything"
from the family, and Martin Martin's grandfather was
killed. When the family returned to Guatemala in 1996, their
home was destroyed and their land taken; those now claiming
ownership threatened the family and assaulted Martin
Martin's grandmother. He testified that he faced
discrimination due to his Mam ethnicity during this period,
which he defined as name-calling.
Martin entered the United States in 1999. He returned to
Guatemala in 2005 after peace accords were signed, settling
in another city, buying a house, and starting his own
business. In 2008, the "Zetas" criminal
organization began asking for money two or three times per
month. The Zetas threatened to kidnap, kill, or force him to
grow drugs if he refused to support the gang. Martin Martin
did not give in to their threats and demands and did not
report the threats to the police. The Zetas never physically
harmed Martin Martin and stopped contacting him in April
2010. Martin Martin re-entered the United States in September
2010. Most of his family came in 2012. His cousin returned to
Guatemala in 2013 and was killed by gangs because he did not
have money. His son Maynor came to the United States in 2014
after gangs began to recruit him. Martin Martin fears that if
he returns to Guatemala he will face harm at the hands of
those involved in the guerilla conflict, those that took his
family's land, and the Zetas. The Immigration Judge found
his testimony regarding events in Guatemala generally
is an "extreme concept that involves the infliction or
threat of death, torture, or injury to one's person or
freedom, on account of a protected characteristic."
Shaghil v. Holder, 638 F.3d 828, 834 (8th Cir. 2011)
(cleaned up). The BIA found that Martin Martin's
testimony did not establish past harm that rose to the level
of persecution. We agree.
discrimination and property loss Martin Martin suffered
during and shortly after the guerilla conflict did not
constitute a threat to life or freedom that rose to the level
of persecution. "In general, harm resulting from
conditions such as anarchy, civil war, or mob violence does
not support a claim of persecution." Agha v.
Holder, 743 F.3d 609, 617 (8th Cir. 2014). Nor did
extortion threats made by the Zetas constitute sufficient
evidence of persecution. "Absent a showing of physical
harm, incidents of harassment and unfulfilled threats of
injury are not persecution, nor is low-level intimidation and
harassment." Cinto-Velasquez v. Lynch, 817 F.3d
602, 605-06 (8th Cir. 2016) (cleaned up). In
Cinto-Velasquez, we noted that, "although
Guatemala has a high level of gang violence, the government
is aggressively combating that violence." 817 F.3d at
606. Martin Martin did not report the Zetas' threats to
the police and suffered no harm when he did not give in to
conclude that substantial evidence in the administrative
record supports the BIA's finding that Martin Martin and
Maynor failed to prove past persecution.