N.S. v. Kansas City Board of Police

United States Court of Appeals
For the Eighth Circuit
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No. 21-2269
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Diego Cesar Tojin-Tiu
lllllllllllllllllllllPetitioner
v.
Merrick B. Garland, Attorney General of the United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: January 14, 2022
Filed: May 12, 2022
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Before LOKEN, GRUENDER, and GRASZ, Circuit Judges.
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LOKEN, Circuit Judge.
Diego Cesar Tojin-Tiu, a citizen of Guatemala, entered the United States
without inspection in March 2016, a month before his eighteenth birthday. The
Department of Homeland Security commenced removal proceedings. Tojin conceded
removability and applied for asylum, withholding of removal, and relief under the
Convention Against Torture (CAT). He claims past persecution and a well-founded
fear of future persecution on account of his membership in two social groups, his

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father’s immediate family and “young Guatemalan men who refuse to cooperate with
gang members.” After an initial screening by the Citizenship and Immigration
Services, the case returned to the immigration court. An Immigration Judge (IJ)
denied Tojin’s application after a hearing. Tojin appealed; the Board of Immigration
Appeals (BIA) affirmed with an opinion. Tojin petitions for review of the final order
of removal. We deny the petition for review.
I. Administrative Proceedings
Tojin and his father, Miguel Tojin Chevela -- who previously entered the
United States and had a pending asylum application -- testified at the asylum hearing.
The IJ found their testimony credible. The family lived in the village of Cecilia,
Cunen, in the department of Quiché. Miguel was second-in-command of the village’s
local government and served on the Mayan Security Council, a local organization that
fought police corruption. In May 2009, while driving a load of construction supplies,
Miguel was kidnapped by a group of men who beat and starved him over the course
of three days, demanded ransom, then took the load of construction supplies and
released him. The men threatened to kill Miguel’s family if he reported the incident
to the police. Miguel inferred the men were associated with the police based on the
Security Council’s investigations.
After this incident, Miguel received calls and letters threatening to kill him and
his family if they did not pay money. He believed the threats came from his
kidnappers or a group of cattle thieves the Council had helped expose. The family
moved to the town of Playa Grande several hours away. The extortionate threats
continued. The family moved further away to Santa Maria Tzeja. Miguel left for the
United States while Tojin and the family lived in Santa Maria Tzeja unharmed for
several years. In 2015, they moved back to a different village in Cunen, Pachalip,
after hearing a rumor someone was looking for the sons of Miguel Tojin in Playa
Grande. In Pachalip, Tojin had several run-ins with gang members trying to recruit.
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The run-ins culminated with gang members cutting Tojin’s face with a knife and
threatening his friend at gunpoint. After this encounter, Tojin and his brother came
to the United States. The rest of his family remains unharmed in Guatemala.
In an Oral Decision accompanied by an Addendum of Law, the IJ denied Tojin
asylum, withholding of removal, and CAT relief, concluding that he did not suffer
past persecution or have a well-founded fear of future persecution, neither of his
social groups were cognizable, and he did not show a nexus between his alleged
persecution and the proposed social groups. The IJ further found that Tojin had not
shown the government was unwilling or unable to protect him or that he could not
safely relocate within Guatemala. The BIA affirmed the IJ’s decision in a five-page
opinion. Tojin now petitions for judicial review.
II. Discussion
To be eligible for asylum, Tojin must show that he is a refugee, 8 U.S.C.
§ 1158(b)(1)(A), who is unwilling or unable to return to his home 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). We review the BIA’s decision, the final agency action, and findings
and reasoning of the IJ adopted by the BIA. Cano v. Barr, 956 F.3d 1034, 1038 (8th
Cir. 2020). We review questions of law de novo. We review factual determinations,
including “the ultimate question of past persecution or well-founded fear of future
persecution,” under the substantial evidence standard. He v. Garland, 24 F.4th 1220,
1224 (8th Cir. 2022). Under this standard, “the administrative findings of fact are
conclusive unless any reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B).
Tojin argues his case must be remanded for a new hearing because the IJ and
BIA, in determining that membership in the immediate family of Tojin’s father was
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not a cognizable social group, relied on agency decisions that were subsequently
vacated in anticipation of a formal rulemaking defining “particular social group.” See
Matter of A-B-, 28 I. & N. Dec. 307 (A.G. 2021); Matter of L-E-A-, 28 I. & N. Dec.
304 (A.G. 2021). We disagree because, even if his father’s immediate family was a
cognizable social group, Tojin’s application fails for other reasons.
First, substantial evidence supports the IJ and BIA determinations that Tojin
has not established a nexus between the persecution he allegedly suffered and either
of his proposed social groups. Nexus requires a showing that membership is “at least
one central reason” for his persecution. 8 U.S.C. § 1158(b)(1)(B)(i). All of the
threats against the family were accompanied by extortionate demands for money.
Applying the substantial evidence standard, a “reasonable factfinder could conclude
[Tojin’s] family membership is not a central reason for the threat . . . but is only
incidental or tangential to the extortionists’ motivation -- money.” Silvestre-Giron
v. Barr, 949 F.3d 1114, 1118 (8th Cir. 2020) (cleaned up); accord Cambara-Cambara
v. Lynch, 837 F.3d 822, 826 (8th Cir. 2016). Tojin’s separate encounters with gang
recruiters -- the other harm he alleges -- had no relation to his family-based social
group, and his proposed social group of “young, Guatemalan men who refuse to
cooperate with gang members” is not cognizable under our established precedent.
See Gaitan v. Holder, 671 F.3d 678, 681 (8th Cir. 2012).
Second, substantial evidence supports the IJ and BIA determination that Tojin
did not suffer past persecution. “Not all threats of death necessarily amount to
persecution, for example, threats that are exaggerated, nonspecific, [or] lacking in
immediacy.” Tegegn v. Holder, 702 F.3d 1142, 1144 (8th Cir. 2013) (quotation
omitted). The IJ found that Tojin “was never directly harmed or threatened” by his
father’s extortionists. And despite Tojin’s contentions, the single violent encounter
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with gang members does not rise to the “extreme concept” of persecution, which
“excludes low-level intimidation and harassment.” Cano, 956 F.3d at 1039.1
Third, in finding Tojin failed to establish a well-founded fear of future
persecution, the IJ noted that his father had been out of Guatemala for a decade, and
the only evidence of a continuing threat was a hearsay rumor that someone was
looking for the sons of Miguel Tojin. This is not “credible, direct, and specific
evidence that show[s] a reasonable person in the alien's position would fear
persecution if returned to the alien’s native country.” Litvinov v. Holder, 605 F.3d
548, 553 (8th Cir. 2010). That Tojin’s mother and sisters remained in Guatemala
unharmed further undermines the claimed reasonableness of his fear. See Bernal-
Rendon v. Gonzales, 419 F.3d 877, 881 (8th Cir. 2005). It also tends to show that he
could avoid future persecution or torture by relocating within Guatemala.
Fourth, Tojin does not contest the IJ’s finding that the alleged persecution was
not by persons the Guatemalan government was unwilling or unable to control. See
La v. Holder, 701 F.3d 566, 571 (8th Cir. 2012).
Because Tojin has not met the standard for asylum, he cannot meet the higher
standard required for withholding of removal, and he presented no evidence
supporting his application for CAT relief beyond what he relied on for his asylum
claim. See La, 701 F.3d at 572-73.
For the foregoing reasons, we deny the petition for review.
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1Tojin argues the IJ erred in failing to consider his age when evaluating
whether he suffered past persecution. He did not raise this issue before the BIA, and
therefore has not exhausted it for our review. 8 U.S.C. § 1252(d)(1); see Mecina-
Medina v. Garland, 6 F.4th 846, 848 (8th Cir. 2021).
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