Gaspar Sebastian Nicolas v. MERRICK B. GARLAND, Attorney General

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 4, 2023
Decided April 6, 2023
Before
FRANK H. EASTERBROOK, Circuit Judge
DIANE P. WOOD, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 22-2144
GASPAR SEBASTIAN NICOLAS, et al.,
Petitioners,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
Petition for Review of an Order
of the Board of Immigration
Appeals.
Nos. A209-008-770 et al.
O R D E R
Gaspar Sebastian Nicolas, a citizen of Guatemala, applied for asylum, withhold-
ing of removal, and relief under the Convention Against Torture. His wife and two chil-
dren are derivative applicants with respect to asylum, but derivative claims for with-
holding of removal and the Convention are not recognized. The wife and children did
not file their own claims for that relief, so asylum is their only option.
Sebastian Nicolas testified that a large and powerful criminal gang had threat-
ened him and other people he knew in an effort to extract money or assistance. An Im-
migration Judge believed this but found it inadequate to establish that the threats were
a response to Sebastian Nicolas’s politics or membership in a particular social group.

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No. 22-2144 Page 2
The IJ also found that Sebastian Nicolas had not established that he is more likely than
not to be tortured if returned to Guatemala. The Board of Immigration Appeals found
these conclusions adequately supported and dismissed the appeal.
The principal question for us is whether substantial evidence supports the ad-
ministrative decision. INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992); 8 U.S.C.
§1252(b)(4)(B). But Sebastian Nicolas does not make such an argument. Instead he con-
tends that the Board acted “incorrectly” in one or another way, as if the judiciary made
independent decisions on asylum and related relief. We do not.
The Board’s conclusion is supported by substantial evidence. How much harm
(or risk of harm) is necessary to show persecution is a matter of degree, and threats not
followed by action are at the low end of that spectrum. The record does not show past
harm for Sebastian Nicolas or his family, and it does not compel the agency to decide
that the risk of future harm is substantial. What is more, the IJ and Board did not com-
mit any legal error in concluding that Sebastian Nicolas’s private opposition to criminal
activity did not support any inference of an anti-gang political opinion. Nor is the pro-
posed social group—everyone in Guatemala between the ages of 21 and 55 ever threat-
ened by criminals—cognizable under the statute. The social group must be defined in-
dependently of the persecutors’ acts. Cece v. Holder, 733 F.3d 662, 671 (7th Cir. 2013) (en
banc).
Sebastian Nicolas asked the Board to remand to the IJ for the taking of additional
evidence. He did not, however, submit an affidavit showing why the evidence was not
available at the time of the hearing. Nor did he try to reconcile the new evidence—
which included reports from public officials in Guatemala about their investigation of
the threats—with his testimony that he had not reported the threats to these officials in
the first place. Whether or not the Board cited the right regulation in support of this de-
cision, these reasons show that the non-remand decision was not an abuse of discretion.
The petition for review is denied.

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