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Marín-Portillo v. Lynch

United States Court of Appeals, First Circuit

August 23, 2016

JORGE MARIO MARÍN-PORTILLO, Petitioner,
v.
LORETTA E. LYNCH, ATTORNEY GENERAL OF THE UNITED STATES, Respondent.

         PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

          Claudia Gregoire and Mills & Born LLP, on brief for petitioner.

          David Schor, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, and Emily Anne Radford, Assistant Director, on brief for respondent.

          Before Torruella, Kayatta, and Barron, Circuit Judges.

          TORRUELLA, Circuit Judge.

         Jorge Mario Marín-Portillo ("Marín") petitions this court for review of an order from the Board of Immigration Appeals ("BIA") affirming the Immigration Judge's ("IJ") denial of his request for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). Finding Marín's arguments unpersuasive, we deny his petition.

         I.

         We recount the facts as presented in the record, noting that the IJ assumed that Marín was credible. Marín was born and raised in Guatemala. In November 2006, when Marín was seventeen years old, a police officer named Edgar Leonel Cuellar shot and killed Marín's father after Marín's father declined to lend him money. Cuellar believed Marín's father was wealthy and had previously borrowed money from him.

         Cuellar was convicted of robbery and battery, but not murder, and incarcerated for three years.[1] While Cuellar was incarcerated, Marín's mother received five to six phone calls telling her that, upon his release, Cuellar would kill her as well as Marín, Marín's brother, and Marín's uncle as retaliation for pressing charges against him. In addition, Cuellar had family members of another person in jail tell Marín and members of his family in person that Cuellar would kill them.

         Based on these threats, Marín left Guatemala in February 2011 and entered the United States that March without inspection. After Marín left, Cuellar was released. Marín's family, including his mother, uncle, two sisters, and two brothers, remain in Guatemala and have not been harmed.[2]

         In May 2011, the Government initiated removal proceedings against Marín for entering the United States without a valid entry document pursuant to Immigration and Nationality Act ("INA") section 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i) (I). Marín conceded removability and subsequently applied for asylum, withholding of removal, and protection under CAT on the grounds that Cuellar's threats constituted persecution based on the social group of his family and demonstrated the likelihood that Marín would be tortured or killed if he returned to Guatemala. An IJ denied Marín's application and Marín sought review before the BIA. The BIA affirmed, adopting some, but not all, of the IJ's reasoning. This timely petition followed.

         II.

         When the BIA incorporates portions of the IJ's opinion and also supplies its own analysis, we review the decisions together. Dimova v. Holder, 783 F.3d 30, 35 (1st Cir. 2015). We review questions of fact under the deferential "substantial evidence" standard, and we "will affirm unless 'any reasonable adjudicator would be compelled to conclude to the contrary.'" Tobón-Marín v. Mukasey, 512 F.3d 28, 30 (1st Cir. 2008) (quoting 8 U.S.C. § 1252(b)(4)(B)). Marín does not make any arguments regarding the BIA's disposition of his CAT claim. We therefore view that claim as abandoned and review only his asylum and withholding of removal claims. See Rotinsulu v. Mukasey, 515 F.3d 68, 71 (1st Cir. 2008).

         An asylum applicant bears the burden of proving he is a refugee. See 8 U.S.C. § 1158(b)(1)(A); 8 C.F.R. § 1208.13(a). As defined in INA section 101(a)(42)(A), a refugee is someone "who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, [his or her native 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). "The statute contemplates two approaches which petitioners might pursue to satisfy their burden of proof." Tobón-Marín, 512 F.3d at 31. First, petitioners may prove that "they have suffered from past persecution on account of one or more of the five grounds enumerated in § 1101(a)(42)(A), which proof would generate a rebuttable presumption that their fear of future persecution is well-founded." Butt v. Keisler,506 F.3d 86, 90 (1st Cir. 2007) (citation omitted). Second, petitioners may show that "their ...


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