Guerra-Marchorro v. Holder, Jr.
2014 U.S. App. LEXIS 14415
| 1st Cir. | 2014Background
- Guerra-Marchoro, a Guatemalan, sought asylum and withholding of removal in 2009; IO denied in 2011 and BIA summarily affirmed in 2013.
- The Board’s summary affirmance is reviewed by examining the IO’s underlying opinion, with deference to factual findings.
- The asylum statute requires persecution on account of a protected ground; Guerra testified credibly, adopting Palma-Mazariegos standard.
- IO found threats from Mara Salvatrucha serious but not constituting persecution; he also found Guerra’s claimed social group—abandoned Guatemalan children lacking protection—unrecognized.
- Guerra failed to establish a viable nexus between the persecution and his claimed social group; the court reviews this nexus finding under the substantial evidence standard.
- The same nexus issue governs the denial of withholding of removal, which also turns on a lack of nexus to a protected ground.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Guerra established a nexus between persecution and his claimed social group | Guerra argues persecution was because he is an abandoned child | Record lacks evidence that harm was tied to that status | No reversible error; nexus not shown under substantial evidence standard |
| Whether the record shows persecution on account of a protected ground | Guerra’s testimony shows gang threats and attacks | Threats are not adequately linked to a protected ground without nexus | Persecution not established without nexus to a protected ground |
| Whether the claimed social group is a cognizable basis for relief | Abandoned Guatemalan children constitute a protected social group | Group not recognized; nexus still required | Court need not decide recognition; nexus lacking defeats relief |
| Whether withholding of removal must be denied for lack of nexus | Lack of nexus defeats withholding relief as well |
Key Cases Cited
- Palma-Mazariegos v. Gonzales, 428 F.3d 30 (1st Cir. 2005) (credibility framework for asylum testimony applies)
- Hincapie v. Gonzales, 494 F.3d 213 (1st Cir. 2007) (nexus requirement requires harm tied to protected ground)
- Sompotan v. Mukasey, 533 F.3d 63 (1st Cir. 2008) (evidence must show reasonable belief of harm linked to protected ground)
- Elias-Zacarias, 502 U.S. 478 (1992) (persecution by guerrillas must be because of political opinion, not mere personal disputes)
- Khalil v. Ashcroft, 337 F.3d 50 (1st Cir. 2003) (no nexus when record shows speculative or unrelated motives)
- Sugiarto v. Holder, 586 F.3d 90 (1st Cir. 2009) (substantial evidence supports no nexus where evidence is lacking)
- Ahmed v. Holder, 611 F.3d 90 (1st Cir. 2010) (arguments not raised before BIA may not be raised on review)
- Kho v. Keisler, 505 F.3d 50 (1st Cir. 2007) (jurisdictional note on Convention Against Torture claims)