Sandra Estela Calvo-Tino; A.M.L.C. v. Merrick B. Garland, Attorney General of the United States

United States Court of Appeals
For the Eighth Circuit
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No. 23-3212
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Sandra Estela Calvo-Tino; A.M.L.C.
Petitioners
v.
Merrick B. Garland, Attorney General of the United States
Respondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: June 13, 2024
Filed: July 12, 2024
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Before LOKEN, ERICKSON, and GRASZ, Circuit Judges.
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GRASZ, Circuit Judge.
Sandra Estela Calvo-Tino and her minor daughter, A.M.L.C., (collectively,
Petitioners) seek review of the Board of Immigration Appeals’s dismissal of their
appeal from the Immigration Judge’s order of final removal against them. They raise
three arguments. First, the Board erred by not analyzing the Immigration Judge’s
denial that Calvo-Tino’s particular social group was cognizable for purposes of
asylum and withholding of removal. Second, the Board erred by finding the

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Petitioners had not suffered past persecution to be entitled to asylum and withholding
of removal. And third, the Board erred by finding Calvo-Tino had not shown a
personalized fear of torture to be entitled to relief under the Convention Against
Torture (CAT). For the reasons discussed below, we deny the petition.
I. Background
Petitioners are natives and citizens of Guatemala. A.M.L.C. has a genetic
disorder associated with a form of Lenox-Gastaut syndrome. Lenox-Gastaut
syndrome causes a form of epilepsy; it is associated with seizure disorders and
significant impairment of development. If not medically treated, A.M.L.C. faces
risks of brain damage, neurological deterioration, and sudden death. Calvo-Tino
accompanies her daughter everywhere and assists her with most basic tasks.
In their small Guatemalan community, Petitioners have limited access to
adequate medical care. Petitioners allege Calvo-Tino was persecuted by hospital
staff at the government-run hospital where she would take her daughter. Calvo-Tino
claims hospital staff mistreated her daughter, accusing them of trying to poison
A.M.L.C. on multiple occasions. On one occasion, Calvo-Tino thought hospital
staff gave her daughter medicine only fit for an adult because of the pill’s large size.
On another occasion, Calvo-Tino thought medical staff improperly tied A.M.L.C. to
a bed to give her injections during a severe seizure episode when she was unable to
breathe. Despite Calvo-Tino’s fears of abusive treatment, Calvo-Tino declined to
go to the police because she thought they would not help.
In October 2016, Petitioners entered the United States. On October 9, 2016,
the Department of Homeland Security served Petitioners with Notices to Appear,
charging them as inadmissible aliens present without admission or parole under 8
U.S.C. § 1182(a)(6)(A)(i). Petitioners conceded their inadmissibility to the United
States, and they applied for asylum, withholding of removal, and CAT protection.

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After a hearing, the Immigration Judge denied all relief, finding Calvo-Tino
had not suffered persecution in Guatemala, had not established a well-founded fear
of future persecution, her proposed particular social group of “parents of
permanently disabled or handicapped individuals” was not cognizable, and she had
not demonstrated any likelihood of torture. Petitioners appealed to the Board. The
Board adopted and affirmed the Immigration Judge’s findings, and it dismissed the
appeal. Calvo-Tino petitions us to review the Board’s decision.
II. Analysis
“[W]e review ‘decisions on asylum, withholding of removal, and CAT
protection under the substantial evidence standard, upholding the decision if it is
supported by reasonable, substantial, and probative evidence based on the record as
a whole.’” Lemus-Arita v. Sessions, 854 F.3d 476, 480 (8th Cir. 2017) (quoting
Fofana v. Holder, 704 F.3d 554, 557 (8th Cir. 2013)). We apply the substantial
evidence standard to both the Board’s factual findings and its ultimate conclusion
that a petitioner failed to prove past persecution or a well-founded fear of future
persecution. See He v. Garland, 24 F.4th 1220, 1224 (8th Cir. 2022), cert. dismissed,
143 S. Ct. 2694 (2023). “We review legal determinations de novo[.]” Id.
“Only the [Board’s] order is subject to our review, including the [Immigration
Judge’s] findings and reasoning to the extent they were expressly adopted by the
[Board].” Pacheco-Mota v. Garland, 84 F.4th 762, 765 (8th Cir. 2023) (quoting
Silvestre-Giron v. Barr, 949 F.3d 1114, 1117 (8th Cir. 2020)). We view the
administrative factual findings as conclusive “unless any reasonable adjudicator
would be compelled to conclude to the contrary.” Durakovic v. Garland, 101 F.4th
989, 993 (8th Cir. 2024) (cleaned up) (quoting 8 U.S.C. § 1252(b)(4)(B)).
Asylum is available to a petitioner if the Attorney General “determines that
such [petitioner] is a refugee within the meaning of section 1101(a)(42)(A) of this
title.” 8 U.S.C. § 1158(b)(1)(A) (emphasis added). A “refugee” includes any person
who is “unable or unwilling to return to [her country of origin] because of

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persecution or a well-founded fear of persecution on account of . . . membership in
a particular social group[.]” Id. § 1101(a)(42)(A). Meanwhile, to obtain withholding
of removal, a petitioner must show “a clear probability that [her] life or freedom
would be threatened on the basis of [her membership in a particular social group] if
removed to [her country of origin.]” Cano v. Barr, 956 F.3d 1034, 1038 (8th Cir.
2020) (first alteration in original) (quoting Osonowo v. Mukasey, 521 F.3d 922, 926
(8th Cir. 2008)); see also 8 U.S.C. § 1231(b)(3). If Petitioners “cannot meet the
standard for asylum,” then they necessarily fail to meet the “more rigorous” standard
for withholding of removal. Guled v. Mukasey, 515 F.3d 872, 881 (8th Cir. 2008).
Petitioners argue the Board erred in adopting the Immigration Judge’s finding
that Calvo-Tino had not suffered past persecution. “‘Persecution’ is an ‘extreme
concept’ that involves severe suffering or harm, such as ‘the infliction or threat of
death, torture, or injury to one’s person or freedom, on account of a protected
characteristic.’” Juarez-Vicente v. Garland, 85 F.4th 1258, 1261 (8th Cir. 2023)
(quoting He, 24 F.4th at 1224). “Low-level intimidation and harassment does not
rise to the level of persecution.” He, 24 F.4th at 1224–25 (quoting Eusebio v.
Ashcroft, 361 F.3d 1088, 1090 (8th Cir. 2004)). We have rejected claims of
persecution in cases only involving cumulative social indignities, low-level
harassment, or verbal insults. See, e.g., Juarez-Vicente, 85 F.4th at 1260–62
(denying petition for review when petitioner’s cited persecution amounted to
instances of “non-consensual sexual touching” and “homophobic slurs”).
A refugee who establishes past persecution is “presumed to have a well-
founded fear of persecution,” and would therefore be entitled to asylum, unless the
factfinder makes specific findings rebutting that presumption. 8 C.F.R.
§ 1208.13(b)(1). “‘Without the aid of the presumption, an asylum applicant may
prove a well-founded fear of future persecution by showing an objectively
reasonable fear of particularized persecution,’ or by showing a pattern or practice of
persecution.” He, 22 F.4th at 1225–26 (quoting Woldemichael v. Ashcroft, 448 F.3d
1000, 1004 (8th Cir. 2006)).

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Though the Immigration Judge—and the Board, in adopting the Immigration
Judge’s findings—found Calvo-Tino to be a credible witness, the Immigration Judge
did not think A.M.L.C.’s medical treatment amounted to past persecution. As to the
hospital staff’s alleged poisoning of A.M.L.C., the Immigration Judge stated, “the
Court was presented no evidence on what medication [A.M.L.C.] was actually given
in the hospital and [Calvo-Tino] did not speak to anyone [at the hospital] about this
incident.” As to the hospital staff’s alleged attempt to kill A.M.L.C. during one of
her seizures, the Immigration Judge concluded, “while [A.M.L.C.] may have been
restrained in the hospital while having a seizure, there was no evidence presented
this was even sub-standard medical treatment let alone done to actually harm
[A.M.L.C.]” The Board agreed: “We acknowledge that [Petitioners’] experiences
have been difficult. However, we agree with the Immigration Judge that [Cavlo-
Tino] has not demonstrated that the hospital staff mistreated her daughter, or that
anyone in Guatemala harmed her or her daughter.”
Petitioners argue if the Immigration Judge and Board found Calvo-Tino
credible as to what transpired (e.g., hospital staff restrained her daughter during a
seizure), then they were required to accept Calvo-Tino’s beliefs as to the medical
significance of the hospital staff’s actions (e.g., hospital staff tried to murder her
daughter in front of her). But it was Petitioners’ burden to provide evidence of
persecution, see Pascual-Miguel v. Garland, 89 F.4th 657, 660 (8th Cir. 2023), and
we cannot say her account of events “was so compelling that no reasonable factfinder
could fail to find the requisite fear of persecution,” INS v. Elias-Zacarias, 502 U.S.
478, 483–84 (1992).
Having failed to show the Board erred in finding no past persecution,
Petitioners do not brief the issue of whether they otherwise established a well-
founded fear of future persecution. Thus, they have waived any argument on that
issue, and we do not address issues on which petitioners provide “no meaningful
argument” in their opening brief. Averianova v. Holder, 592 F.3d 931, 935 (8th Cir.
2010). And because Petitioners fail to show persecution, we need not address their
argument that the Board should have analyzed whether the particular social group

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of parents with disabled children is cognizable. See Tojin-Tiu v. Garland, 33 F.4th
1020, 1023 (8th Cir. 2022) (holding there is no need to consider whether a particular
social group is cognizable when a petition for review “fails for other reasons”).
Petitioners also fail to show entitlement to CAT relief. “An applicant is
eligible for CAT relief if he proves that ‘it is more likely than not that he . . . would
be tortured if removed to the proposed country of removal.’” Pacheco-Moran v.
Garland, 70 F.4th 431, 438 (8th Cir. 2023) (ellipsis in original) (quoting 8 C.F.R.
§ 1208.16(c)(2)). “Separate analysis of a CAT claim is required only when there is
evidence that the person might be tortured for reasons unrelated to his claims for
asylum and withholding of removal.” Id.; see also Pascual-Miguel, 89 F.4th at 660.
If they are returned to Guatemala, Petitioners fear “torture” for the same reasons they
fear “persecution” in their asylum and withholding of removal claims; Calvo-Tino
will suffer the “mental torture” of being present during A.M.L.C.’s medical
treatments. As the Board concluded, Calvo-Tino “has not established how she
individually would be more likely than not to be tortured . . . due to the difficulties
experienced by her daughter’s medical condition.” Just as with her claims for
asylum and withholding of removal, Petitioners’ CAT claim fails for lack of
evidence. See Pascual-Miguel, 89 F.4th at 660.
III. Conclusion
We deny the petition for review.
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