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Cinto-Velasquez v. Lynch

United States Court of Appeals, Eighth Circuit

March 25, 2016

Eliu Jeremias Cinto-Velasquez, Petitioner
v.
Loretta E. Lynch, Attorney General of the United States, Respondent

         Submitted October 22, 2015

Page 603

          Petition for Review of an Order of the Board of Immigration Appeals.

         For Eliu Jeremias Cinto-Velasquez, Petitioner: Lucia Marquez, Christopher James Roth, KASABY & NICHOLLS, Omaha, NE.

         For 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.

         Before LOKEN, MURPHY, and COLLOTON, Circuit Judges.

          OPINION

Page 604

          LOKEN, Circuit Judge.

         Eliu 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.[1] Concluding there is substantial evidence in the administrative record supporting the BIA's decision, we deny the petition for review.

         Cinto-Velasquez 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

Page 605

'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 wealthy."

         The IJ 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 ...


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