Guerrero v. Holder
2012 U.S. App. LEXIS 1768
1st Cir.2012Background
- Guerrero is a Salvadoran national who entered the U.S. in Feb 1992 without admission or parole and later applied for asylum.
- In 2007 removal proceedings were initiated after Guerrero had previously filed an affirmative asylum application; he conceded removability and renewed asylum/withholding requests.
- Guerrero alleges mistreatment by FMLN guerrillas during the Salvadoran civil war, including forced carrying of wounded, conscription, forced labor, and coerced political rally attendance.
- IJ found Guerrero credible but held no nexus to a protected ground and that past persecution was not proven; fear of future persecution deemed not objectively reasonable after 1991 peace accords.
- BIA affirmed the IJ, agreeing no nexus or objectively reasonable fear; Guerrero challenged on appeal under substantial evidence review.
- Court denied the petition for judicial review, holding Guerrero failed to prove past persecution and that remaining relief (humanitarian exception/withholding) was moot; TPS status granted does not preclude removal while TPS lasts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Guerrero show past persecution on account of political opinion? | Guerrero argues forced attendance at rallies and known opposition show nexus. | Guerilla actions could have other motives; no proof of targeted punishment for political opinion. | No, nexus not proven; persecution not established. |
| Is there a nexus between the mistreatment and Guerrero's political opinion? | Knowledge of his political view shows targeting for punishment. | Events plausibly tied to guerrilla strategy, not solely to Guerrero's political opinion. | Record does not compel a nexus to a protected ground. |
| Was Guerrero's fear of future persecution objectively reasonable? | Even post-conflict era, the alleged threats persist. | 1991 peace accords and lack of ongoing guerrilla interest negate future fear. | Not objectively reasonable given country conditions. |
| Are humanitarian exception or withholding relief available given lack of past persecution? | If past persecution had been shown, humanitarian exception could apply. | Without past persecution, relief under humanitarian exception is not available; withholding denied. | moot; relief denied. |
Key Cases Cited
- Elias-Zacarias v. INS, 502 U.S. 478 (U.S. 1992) (persecution requires nexus to protected ground; not just motive of persecutor)
- Amouri v. Holder, 572 F.3d 29 (1st Cir. 2009) (causation standard for persecution claims)
- Tobon-Marin v. Mukasey, 512 F.3d 28 (1st Cir. 2008) (mixed-motives framework pre-REAL ID Act)
- Aguilar-Solis v. INS, 168 F.3d 565 (1st Cir. 1999) (classic pattern may not establish nexus to political opinion)
- Velasquez-Valencia v. INS, 244 F.3d 48 (1st Cir. 2001) (knowledge of opposition insufficient without nexus evidence)
- Silva v. Gonzales, 463 F.3d 68 (1st Cir. 2006) (exhaustion of remedies to raise theories before BIA; burden on applicant)