October 22, 2015
Petition for Review of an Order of the Board of Immigration
Eliu Jeremias Cinto-Velasquez, Petitioner: Lucia Marquez,
Christopher James Roth, KASABY & NICHOLLS, Omaha, NE.
Loretta E. Lynch, Attorney General of the United States,
Respondent: Jesse Matthew Bless, Karen Yolanda Drummond, Carl
H. McIntyre, Anthony Cardozo Payne, Assistant Director,
Colette Jabes Winston, U.S. DEPARTMENT OF JUSTICE, Civil
Division, Office of Immigration Litigation, Washington, DC;
Tiffany L. Walters, Trial Attorney, U.S. DEPARTMENT OF
JUSTICE, Office of Immigration Litigation, Washington, DC.
LOKEN, MURPHY, and COLLOTON, Circuit Judges.
Jeremias Cinto-Velasquez, a native of Guatemala, entered the
United States without inspection in 1993 and applied for
asylum, withholding of removal, and relief under the
Convention Against Torture (CAT) in November 1993. He
returned to Guatemala in 2005 and illegally reentered the
United States two years later. Removal proceedings resumed.
Cinto-Velasquez petitions for review of the decision of the
Board of Immigration Appeals (BIA) denying him asylum and
voluntary departure. Concluding there is substantial
evidence in the administrative record supporting the
BIA's decision, we deny the petition for review.
was born in 1963. At the April 2013 removal hearing, he
testified that he had two encounters with anti-government
guerillas in 1992, while he was serving in the Civil Patrol,
a group of civilians who were supporting the Guatemalan
government in its civil war with the guerrillas. In both
encounters, armed guerillas attempted to recruit
Cinto-Velasquez, but he refused. He fled to the United States
after the second encounter, leaving his wife and two children
residing in their home town. In 1997, his wife reported to
Guatemalan authorities that unknown men asked her about his
whereabouts and threatened to kill him or kidnap one of their
daughters. In 2005, Cinto-Velasquez returned to Guatemala. He
remained two years and testified that he planned to stay
indefinitely. However, in 2006, he received a letter from
" Mara 18" gang members demanding a "
tax" of 30,000 quetzals (approximately $7,000).
Cinto-Velasquez did not pay the demand, reported the letter
to police, and received no additional threats. He returned to
the United States, again leaving his family in Guatemala.
Subject to certain statutory exceptions, the Attorney General
may grant asylum to an alien . . . who proves he is a
'refugee.'" Melecio-Saquil v. Ashcroft,
337 F.3d 983, 986 (8th Cir. 2003), citing 8 U.S.C. §
1158(b)(1). " Refugee" is defined to include an
alien " who is unable or unwilling to return to"
his country " because of persecution or a well-founded
fear of persecution on account of . . . membership in a
particular social group, or political opinion." 8 U.S.C.
§ 1101(a)(42)(A). A well-founded fear is "
subjectively genuine and objectively reasonable."
Melecio-Saquil, 337 F.3d at 986 (quotation omitted).
" An applicant who establishes past persecution is
presumed to have a well-founded fear of persecution."
Tegegn v. Holder, 702 F.3d 1142, 1143 (8th Cir.
2013). Cinto-Velasquez claims he is entitled to asylum
because he has a well-founded fear that members of violent
Guatemalan gangs, who are former anti-government guerillas,
will persecute him on account of his political opinion when
he was a member of the Civil Patrol in 1992, and his present
membership in a particular social group, namely, "
Guatemalan repatriates who have lived and worked in the
United States for many years and are perceived to be
denied Cinto-Velasquez's applications for asylum,
withholding of removal, CAT protection, and voluntary
departure on multiple grounds. He appealed to the BIA, which
affirmed the IJ in a detailed opinion. The BIA found: (i)
Cinto-Velasquez's two encounters with guerillas in 1992
and the questioning of his wife in 1997 " did not rise
to the level of [past] persecution" ; (ii) there was no
evidence the guerillas were motivated to harm him on account
of his political opinion, rather than merely attempting to
conscript him; (iii) the 2006 Mara gang extortion letter
" did not rise to the level of persecution and was not
on account of [his] membership in a particular social group,
political opinion, or other [protected] ground" ; (iv)
his proposed social group of Guatemalan repatriates perceived
to be wealthy " is not cognizable" because it
" does not have the required social distinction,"
is " too amorphous," and " lacks the requisite
particularity" ; (v) Cinto-Velasquez did not demonstrate
a well-founded fear of future persecution because the
guerilla encounters were years ago, the guerillas disbanded
when the civil war ended in 1996, and there is insufficient
evidence the government is unable or unwilling to ...