Danny Emanuel GUERRA-MARCHORRO, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
No. 13-1922.
United States Court of Appeals, First Circuit.
July 29, 2014.
Thus, in Whitman, the maintenance and cure claim that we rejected for evidentiary insufficiency involved either a second, possibly seрarate medical condition or an attempt to extend benefits beyond the previously identified cutoff point for the remedy. Here, by contrast, the recognized triggers for aplastic anemia, together with the evidence of physical symptoms experienced by appellant onboard the vessel, provide sufficient support for a finding that his aplastic anemia arose or became aggravated during his service on the ship and, hence, triggered the duty of maintenance and cure.
The impact of our dеcision, however, may be modest. At oral argument, appellant‘s counsel reported that appellee Carolina Dream paid maintenance and cure tо his client through the date of the district court‘s summary judgment ruling in August 2013. As we have explained, appellant is entitled to maintenance and cure only while he is “moving toward recovery,” In re RJF Int‘l Cоrp. for Exoneration from or Limitation of Liab., 354 F.3d 104, 106 (1st Cir.2004), up to the point of “maximum medical recovery,” Vaughan, 369 U.S. at 531, 82 S.Ct. 997. Although Ramirez asserts that his condition has not yet stabilized, the record on that issue is undeveloped and our decision here does not foreclose summary judgment on the ground that the employer has satisfied its obligation. We note, however, that even after achieving maximum medical cure, a seaman may “reinstitute a demand for maintenance and cure where subsequent new curative medical treatments become available.” Force, supra, at 94; see also Farrell, 336 U.S. at 519, 69 S.Ct. 707 (noting that the seaman may be able to recover, “in a new proceeding,” the costs of “future treatment of a curative nature” and “for maintenance while receiving it“); Messier, 688 F.3d at 82 (quoting Force and citing Farrell).
Accordingly, we remand this case to the district court for further proceedings consistent with this opinion.
So ordered.
Ann Carroll Varnon, Office of Immigration Litigation, Civil Division, Department of Justice, Stuart F. Delery, Assistant Attorney General, and Nancy E. Friedman, Senior Litigation Counsel, on brief for respondent.
Before LYNCH, Chief Judge, KAYATTA and BARRON, Circuit Judges.
Petitioner Danny Emanuel Guerra-Marchorro, a citizen of Guatemala, applied for asylum and withholding of removal in November of 2009. The Immigration Judge denied the application on a number of grounds in May of 2011, and the Board of Immigration Appeals affirmed summarily on July 5, 2013. Guerra now petitions for review of the Board‘s summary affirmance. Because we are reviewing a summary affirmance, we look to the underlying opinion of the Immigration Judge. Herbert v. Ashcroft, 325 F.3d 68, 71 (1st Cir.2003). And because we conclude that the record provides sufficient support for a key factual finding the Immigration Judge made, we must deny the petition.
To secure relief, an asylum applicant must show he is “unable or unwilling” to return to his home country because of “persecution or a well-founded fear of persecution” that is “on account of” his “race, religion, nationality, membership in a particular social group, or political opinion.”
The testimony shows that Guerra‘s parents emigrated from Guatemala to the United States when Guerra was seven years old, that Guerra‘s parents left him to live with his grandparents, and that in the years that followed Guerra had several frightening encounters with the Mara Salvatrucha gang. Thе testimony further shows that, over time, Guerra came to believe his grandparents could no longer keep him safe and that he left for the United States at the age of sixteen because he feared the gang would kill him.
The Immigration Judge found the evidence of the gang‘s threats and attacks serious but insufficient to support the statutorily required showing of “persecution.” The Immigration Judge also ruled that the “social group” Guerra claimed to belong to—“abandoned Guatemalan child[ren] lacking protection from gang violence“—was not one the asylum statute recognized. Guerra challenges each of those conclusions on appeal, but we need not consider them. That is because we find sufficient record support for a further finding by the Immigration Judge that Guerra barely addresses in his brief—namely, that Guerra failed to “establish a viable nexus” between the “persecution” he idеntifies and the “particular social group” to which he claims to belong.1
This “nexus” requirement arises from the language in the asylum statute that requires an applicant to show persecution “on account of” an enumerated ground.
Despite the importance of this “nexus” requirement, Guerra does not offer a satisfactory explanation of how he meets it. He does describe his reasons for fearing what the gang would do to him if he were to return to Guatemala. But he does not, either in his brief or in his testimony, directly state that the gang has targeted him, or will target him, because of his claimed status as an “abandoned” child. Rather, to the extent Guerra‘s testimony addresses the gang‘s reasons for targeting him, it identifies motivations unrelated to that claimed status.
For example, Guerra claims at one point that the gang targeted him “because I knew [the gang members] and because I was dating the girlfriend of one of the gang members,” but those are motivations unconnected to his purported status as an abandoned child. The same is true оf Guerra‘s statements that the gang targeted him because he opposed the gang and refused to join it. And while Guerra recounts three specific and serious incidents in which gang members threatened or attacked him, his testimony does not show the gang members even knew his parents had emigrated. Instead, Guerra testified that these incidents convinced him that if he stayed in Guatemala, the gang members might kill him, “[b]ecause over there, the gangs, if you know they‘re gang members and you‘re not part of them, they kill you“—a motivation for the gang‘s action that is аgain not tied to Guerra belonging to the claimed social group.
In light of this record, we have no basis to disturb the Immigration Judge‘s nexus finding, which is one of fact and thus must be reviewed under the “highly deferential” substantial evidence standard. Hincapie, 494 F.3d at 218. Applying that standard, we cannot overturn the finding because nothing in “the record ... compels the conclusion that” the alleged persеcution is “because of,” Guerra‘s membership in a claimed particular social group, rather than for some other reason. Elias-Zacarias, 502 U.S. at 483, 112 S.Ct. 812. Instead, the record shows that, at most, Guerra presented “no evidence other than his own speculation” to forge the statutorily required “link.” Khalil v. Ashcroft, 337 F.3d 50, 55 (1st Cir.2003); see also Sugiarto v. Holder, 586 F.3d 90, 95-96 (1st Cir.2009) (holding that substantial evidence supported the BIA‘s finding of no nexus where record сontained no evidence supporting petitioner‘s stated belief she had been targeted because of her religion).
This same analysis requires that we also deny Guerra‘s рetition to review the Board‘s summary affirmance of the denial of his request for withholding of removal. That form of relief is available, in some circumstances, when an appliсation for asylum would be barred. Compare
Accordingly, we deny the petition for review.