26 F.4th 104
1st Cir.2022Background
- López-Pérez, a Guatemalan native who speaks Mam, entered the U.S. without inspection in 2012 at age 16 and was later included in his parents' asylum application, which was withdrawn in 2017 without his knowledge.
- DHS served a Notice to Appear in December 2018; López-Pérez conceded removability and applied for asylum, withholding of removal, CAT protection, and voluntary departure.
- He testified to childhood bullying and discrimination for his Mam identity, and fear arising from his cousin Adan’s 2008 kidnapping and subsequent threats; he also fears being perceived as wealthy and coerced into militia activity if returned.
- The IJ found López-Pérez credible but held his asylum application untimely (filed well after the one-year deadline and after age 21) and denied asylum on the merits as well as withholding and CAT relief; voluntary departure was denied as a discretionary matter.
- The BIA affirmed the IJ on all grounds; López-Pérez petitioned for review to the First Circuit, which affirmed the BIA’s decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of asylum filing | López-Pérez argued he did not know his parents withdrew their application and that excusable/changed circumstances exist | Agency: application untimely; no cognizable legal defect to permit judicial review of factual timeliness findings | Court: jurisdictional bar to review of factual challenge; petitioner failed to identify legal/constitutional error, so timeliness decision not reviewable and stands |
| Asylum (past/future persecution) | Argued past mistreatment for Mam identity and fear of future harm as cousin of kidnapped relative and possible militia recruitment | Agency: past harms amounted to harassment, not persecution; relatives remain safe; internal relocation reasonable; perception of wealth is not a protected ground | Court: substantial evidence supports agency—harassment did not amount to past persecution; future-persecution fears not compelled; asylum denied |
| Withholding of removal | Same factual basis as asylum; argues higher protection standard met | Agency: petitioner fails asylum lower standard, so cannot meet withholding’s higher clear-probability standard | Court: affirmed denial—record does not compel conclusion of clear probability of persecution |
| CAT protection | Claims likely to be forced into militia/tortured and police will not protect him | Agency: fears concern private actors/crime, not government‑enabled torture; insufficient evidence government would acquiesce | Court: substantial evidence supports BIA that petitioner failed to show it is more likely than not he would be tortured by or with government acquiescence |
Key Cases Cited
- Sunoto v. Gonzales, 504 F.3d 56 (1st Cir. 2007) (standard for reviewing BIA adoption of IJ decision)
- Settenda v. Ashcroft, 377 F.3d 89 (1st Cir. 2004) (substantial-evidence standard for asylum/withholding/CAT)
- Romilus v. Ashcroft, 385 F.3d 1 (1st Cir. 2004) (review standards for agency fact findings and legal questions)
- Oroh v. Holder, 561 F.3d 62 (1st Cir. 2009) (changed/extraordinary circumstances tolling one-year asylum deadline)
- Pan v. Gonzales, 489 F.3d 80 (1st Cir. 2007) (limits on judicial review of timeliness determinations)
- Rashad v. Mukasey, 554 F.3d 1 (1st Cir. 2009) (jurisdictional bar unless legal/constitutional issue identified)
- Nikijuluw v. Gonzales, 427 F.3d 115 (1st Cir. 2005) (distinguishing harassment from past persecution)
- Soeung v. Holder, 677 F.3d 484 (1st Cir. 2012) (withholding of removal higher burden than asylum)
- Samayoa Cabrera v. Barr, 939 F.3d 379 (1st Cir. 2019) (elements of torture for CAT claims)
- INS v. Elias-Zacarias, 502 U.S. 478 (1992) (basis for substantial-evidence review in immigration cases)