Ruiz-Escobar v. Sessions , 881 F.3d 252 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-1539
MARVIN JAVIER RUIZ-ESCOBAR,
Petitioner,
v.
JEFFERSON B. SESSIONS, III,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Circuit Judge,
Souter,* Associate Justice,
and Selya, Circuit Judge.
Susan Kay Roses, with whom Michael P. Martel and Law Office
of Michael P. Martel, Esq. were on brief, for petitioner.
Emily B. Leung, Iris Gomez, and Massachusetts Law Reform
Institute on brief for Massachusetts Law Reform Institute, Greater
Boston Legal Services, Political Asylum/Immigration Representation
Project, Catholic Social Services of Fall River, amici curiae.
John F. Stanton, Trial Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, with whom
Chad A. Readler, Acting Assistant Attorney General, Civil
Division, and Claire L. Workman, Senior Litigation Counsel, Office
of Immigration Litigation, were on brief, for respondent.
* Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
February 2, 2018
LYNCH, Circuit Judge. Marvin Javier Ruiz-Escobar sought
withholding of removal ("WOR") and protection under the Convention
Against Torture ("CAT"), claiming that he had experienced past
persecution and faced a clear probability of future persecution in
Honduras on account of his family membership.
He had an evidentiary hearing before an Immigration
Judge ("IJ"). There, he presented evidence that, he alleged,
established that a narcotrafficking gang called Los Cachiros had
killed a number of his family members in Honduras. The IJ denied
Ruiz-Escobar's request for relief, finding that he failed to
establish that he had suffered -- or was likely to suffer in the
future -- harm that was both (1) sufficient to constitute
persecution and (2) related to his family membership. The Board
of Immigration Appeals ("BIA") affirmed in a decision described
below.
Ruiz-Escobar timely petitioned for review in this court.
We also describe below the arguments in the petition. As none of
the claims have merit, we deny his petition for review.
I. Background
A. Facts
Ruiz-Escobar, a native and citizen of Honduras, first
entered the United States illegally in May 2013 by crossing the
Hidalgo, Texas border. He was apprehended, detained by the border
patrol for several weeks, and interviewed by immigration officials
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in June 2013. In a Record of Sworn Statement from that interview,
which he signed, Ruiz-Escobar indicated that he had entered the
United States to work and live in Boston, and that he had no fear
of harm if he were returned to Honduras. On the basis of this
information, the Department of Homeland Security ("DHS") removed
Ruiz-Escobar to Honduras on June 18, 2013, pursuant to an expedited
removal order.
In November 2013, Ruiz-Escobar again entered the United
States illegally. This time, he eluded the border patrol and found
his way to Massachusetts. On or about July 21, 2016, Ruiz-Escobar
was taken into custody by Immigration and Customs Enforcement
officers after he was stopped by Massachusetts police for driving
without a license. The next day, DHS notified Ruiz-Escobar of its
decision to reinstate the prior removal order. In August 2016, an
asylum officer interviewed Ruiz-Escobar and found that he had
expressed a reasonable fear of harm upon return to Honduras.
Through counsel, Ruiz-Escobar filed an application for
WOR and for protection under CAT. In support of his application,
Ruiz-Escobar submitted, inter alia, affidavits from himself and
his sister; death certificates of his deceased relatives; and
reports detailing conditions in Honduras.
At the merits hearing on his application, Ruiz-Escobar
testified that a number of his family members -- including his
mother, his father, four uncles, and a cousin -- had been killed
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or "disappeared" in Honduras by a narcotrafficking group called
Los Cachiros.1 Ruiz-Escobar said he had heard from relatives that
Los Cachiros had shot and killed his father in 1994 (the year
before he was born) for refusing to sell them a piece of land,
which they had wanted to use as a landing strip for their cocaine-
transporting planes.
Los Cachiros also purportedly held a grudge against
Ruiz-Escobar's stepfather, Camilo Ruiz ("Camilo"), stemming from
Camilo's refusal to become a bodyguard for Lucio Rivera, a Los
Cachiros–affiliated narcotrafficker. Ruiz-Escobar claimed that
Los Cachiros had attempted to kill Camilo in 2010 by cutting the
brakes of his car. According to Ruiz-Escobar, the resulting car
accident killed his mother, but Camilo survived. Camilo relocated
to the United States in 2011, where he currently is located, and
testified at Ruiz-Escobar's hearing.
To rebut Ruiz-Escobar's testimony that Lucio Rivera had
been targeting his family members, DHS counsel "Googled" the name
"Lucio Rivera" at the hearing and found a Spanish-language article
from a Honduran newspaper stating that Lucio Rivera had been
convicted of three murders and sentenced to 104 years in prison by
a Honduran court. Ruiz-Escobar's counsel objected to the admission
1 At the hearing, the IJ highlighted a number of issues
with the death certificates of Ruiz-Escobar's relatives, including
the fact that the certificates did not state the cause of death of
the decedents.
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of the article on the basis that she had not seen it. DHS counsel
responded that she would "go upstairs and print it out." The IJ
allowed the court interpreter to translate the article into the
record.
Ruiz-Escobar also described the deaths of four of his
uncles: Andres Felipe Ruiz Mayen ("Andres"), Jose de Jesus Ruiz
Mayen ("Jose"), Santos Ruiz Mayen ("Santos"), and Hector Porfirio
Sevilla Cabrera ("Hector"). He claimed that Andres was murdered
in 1998 for refusing to sell the Ruiz family's land to Los
Cachiros. According to Ruiz-Escobar, the land was eventually sold
to a cattle rancher, but Los Cachiros ultimately obtained
possession of the land after killing the rancher. The second
uncle, Jose, died in 2005. While Ruiz-Escobar did not have
"personal knowledge" regarding the circumstances of Jose's death,
he noted that "some people in [his] family" thought that drug
traffickers "were possibly responsible" for Jose's death, even
though an initial report indicated that Jose had been killed by a
falling tree. The third uncle, Santos, has been missing since
2011. Ruiz-Escobar speculated that Los Cachiros had kidnapped
Santos to obtain information about Camilo's location and
"disappeared" Santos to "punish" Camilo's family members for
Camilo's escape. Finally, Ruiz-Escobar stated that his uncle
Hector had been shot and killed in a rural area in 2015, and that
there were no witnesses to the murder.
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The final relative that Ruiz-Escobar asserted had been
killed by Los Cachiros was his cousin, Glenda Mileydy Hernandez.
Hernandez had allegedly attempted to break her romantic
relationship with a narcotrafficker shortly before her corpse was
discovered.
Ruiz-Escobar testified that his only personal experience
with narcotraffickers was an incident in 2011 in which individuals
whom he thought were narcotraffickers had broken into his apartment
in Juticalpa. According to Ruiz-Escobar, the intruders held him
at gunpoint, searched his apartment, and asked him if he knew where
a certain person was, to which he answered no because he did not
recognize the person's name. The intruders left the apartment
without physically harming him. Ruiz-Escobar admitted that he did
not know who the intruders were. Moreover, he did not report the
incident to the police, and that was because he believed that the
police were corrupt.
After the 2011 break-in, Ruiz-Escobar moved to a
different residence in the same town. Ruiz-Escobar admitted that
he lived safely in his new home for another year and a half, after
which he made his first entry into the United States. However, he
testified that he had seen one of the men involved in the break-
in on a number of occasions after his move, and that he believed
that the man had been following him. He also described a rumor,
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which he had heard from an aunt, that a narcotrafficker who had
been paid to kill Camilo had also been paid to kill him.
Ruiz-Escobar also claimed that while he was in
immigration custody after his first removal in 2013, he had seen
immigration officials being abusive to detainees and physically
forcing them to sign papers. He acknowledged that the immigration
official who had conducted his interview had spoken Spanish and
that he had understood the interviewer's questions, with the
exception of "some words." He also acknowledged that he had
initialed and signed the Record of Sworn Statement from the
interview. But he denied telling the interviewer that he had come
to the United States to seek work and that he had no fear of harm
if he were returned to Honduras. After his 2013 removal to
Honduras, Ruiz-Escobar lived safely in Honduras until his second
entry into the United States six months later.
B. IJ Decision
The IJ denied Ruiz-Escobar's application. The IJ "gave
significant credence" to the signed Record of Sworn Statement from
the 2013 interview because the document was "the closest statement
in time to [Ruiz-Escobar's] entry into the United States" and Ruiz-
Escobar "told different tales at different times." Because of
Ruiz-Escobar's contradictions, the IJ stated that he "sharply
discount[ed] [Ruiz-Escobar's] subsequent testimony" and
"would . . . make an adverse credibility finding as to his motive
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for entering the United States." However, the IJ stated that
"[c]redibility . . . [was] not the determining factor." Rather,
the IJ denied relief on the basis that Ruiz-Escobar had failed to
establish that he faced persecution on account of a protected
ground.
The IJ "consider[ed]" the death certificates proffered
by Ruiz-Escobar, but found that they had "somewhat limited utility
inasmuch as they do not indicate causes of death." In holding
that Ruiz-Escobar had not suffered past persecution in Honduras,
the IJ found it telling that the purported break-in to Ruiz-
Escobar's apartment by narcotraffickers in 2011 had occurred after
Camilo had already left Honduras for the United States, and noted
that if the intruders had been looking to harm members of the Ruiz
family, they could have done so at the time of the intrusion, but
did not.
In holding that Ruiz-Escobar failed to establish a
likelihood of future persecution, the IJ emphasized the fact that,
on Ruiz-Escobar's testimony, Los Cachiros' motive for targeting
the Ruiz family was to acquire the family's land, which was
ultimately sold to another farmer. The IJ also highlighted Ruiz-
Escobar's failure to establish the Honduran government's
unwillingness or inability to protect him from harm, given that
Lucio Rivera, the narcotrafficker, had been arrested, and had been
sentenced by a Honduran court to over 100 years in prison.
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Moreover, the IJ determined that it was possible for Ruiz-Escobar
to relocate safely within Honduras because he had "at various times
lived free of any harassment or any danger" there.
C. BIA Decision
Ruiz-Escobar appealed the IJ's decision to the BIA,
arguing that (1) the IJ erred by making an adverse credibility
finding based on the Record of Sworn Statement when Ruiz-Escobar
disavowed that statement at his hearing; (2) the IJ violated his
right to due process by admitting the Spanish-language article
about Lucio Rivera without a written English translation; (3) two
of the IJ's factual findings were clearly erroneous; and (4) the
IJ's findings on past and future persecution were erroneous
because, inter alia, the IJ gave insufficient weight to the death
certificates, Ruiz-Escobar's sister's testimony and successful
asylum application, and the country-conditions reports.
The BIA dismissed Ruiz-Escobar's appeal. First, the BIA
declined to address Ruiz-Escobar's credibility argument because
the IJ "specifically stated that credibility '[was] not the
determining factor in this case.'" The BIA noted that the IJ
denied Ruiz-Escobar’s application solely on the basis of his
determination that Ruiz-Escobar failed to meet his burden of proof
to establish eligibility for relief from removal.
Second, the BIA found no due process violation. It was
not persuaded that the IJ erred in allowing the DHS article because
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(1) there was insufficient proof of a translation error, (2) the
article was translated during the hearing and its evidentiary
significance was facially apparent; and (3) the article was
submitted as rebuttal evidence.
Third, the BIA held that the IJ did not clearly err by
(1) stating that there was no evidence of what had happened to the
farmer who purchased the Ruiz land, and (2) finding that the police
had not been notified of the crimes allegedly committed by Los
Cachiros against the Ruiz family. The BIA noted that the first
finding was at most harmless error, and that the second finding
was supported by evidence in the record.
Finally, the BIA stated that it agreed with the IJ's
denial of relief, for a number of reasons. First, the BIA noted
that Ruiz-Escobar failed to show that any alleged persecution was
on account of his family membership. Second, the BIA held that
the threats that Ruiz-Escobar faced during the 2011 break-in did
not amount to persecution. Third, the BIA stated that the IJ
properly discounted the probative value of the death certificates
because they lacked cause-of-death information. Fourth, the BIA
found that Ruiz-Escobar's sister's asylum grant was not
dispositive because "each case must be assessed on the evidence
presented by the applicant." Fifth, the BIA rejected Ruiz-
Escobar's argument that the country-conditions reports supported
his persecution claims because the BIA found those reports to be
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irrelevant to the nexus issue. Finally, the BIA determined that
the IJ did not clearly err by finding that relocation was possible.2
II. Discussion
A. Credibility Determination
As an initial matter, we reject Ruiz-Escobar's argument
regarding the IJ's purported credibility finding. Here, the BIA
declined to address Ruiz-Escobar's credibility argument because it
found "clear" that the IJ had "denied relief solely based on his
determination that [Ruiz-Escobar] did not meet his burden of proof
to establish eligibility for relief." That was a reasonable view
of the record, and we have no reason to second-guess it.3
B. Nexus
Where, as here, "the BIA affirms an IJ's ruling while
analyzing the bases offered for that ruling, we review the IJ's
and BIA's opinions as a unit." Tay-Chan v. Holder, 699 F.3d 107,
111 (1st Cir. 2012) (citation omitted). We review the BIA's and
2 The BIA also found no error in the IJ's conclusion that
Ruiz-Escobar had not met his burden of proof for protection under
the CAT. Ruiz-Escobar does not challenge this finding in his
petition for review.
3 Amici argue that the IJ must have either (1) "implicitly
discounted" the credibility of Ruiz-Escobar's testimony regarding
nexus or (2) "failed to assess the substantiality" of Ruiz-
Escobar's testimony along with the evidence regarding his
relatives' deaths. We disagree. For the reasons stated in section
II.B, infra, there was substantial evidence for the IJ's factual
findings with respect to Ruiz-Escobar's failure to show nexus,
regardless of whether Ruiz-Escobar's testimony was deemed
credible.
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IJ's findings of fact under the "substantial evidence" standard,
pursuant to which we accept such findings so long as they are
"supported by reasonable, substantial and probative evidence on
the record considered as a whole." Singh v. Holder, 750 F.3d 84,
86 (1st Cir. 2014) (quoting INS v. Elias-Zacarias, 502 U.S. 478,
481 (1992)). We can reject the BIA's and IJ's findings of fact
only if the evidence "'points unerringly in the opposite
direction,' that is, unless it compels a contrary conclusion."
Segran v. Mukasey, 511 F.3d 1, 5 (1st Cir. 2007) (emphasis added)
(quoting Laurent v. Ashcroft, 359 F.3d 59, 64 (1st Cir. 2004)).
To show that he is entitled to WOR, Ruiz-Escobar bears
the burden of demonstrating that, more likely than not, his life
or freedom will be threatened on account of his "race, religion,
nationality, membership in a particular social group, or political
opinion" if he is removed to Honduras. Hernandez-Lima v. Lynch,
836 F.3d 109, 113 (1st Cir. 2016) (quoting 8 U.S.C. §
1231(b)(3)(A)). Alternatively, Ruiz-Escobar can "demonstrate that
he has already suffered such persecution" in Honduras, thereby
creating "a rebuttable presumption that he will suffer the same
upon removal." Id. (citing 8 C.F.R. § 1208.16(b)(1)). Under
either method of establishing entitlement to relief, Ruiz-Escobar
must show “both harm sufficient to amount to persecution and a
'nexus' between the alleged persecution and one of the statutorily
protected grounds." Id.- 13 -
There was substantial evidence for the BIA's and IJ's
determination that Ruiz-Escobar failed to show a nexus between his
alleged past persecution and likelihood of future persecution, and
his family membership. Because Ruiz-Escobar's failure to meet the
nexus requirement is independently fatal to his claim for WOR
relief, we do not address his other arguments regarding past and
future persecution.
In order for family membership to serve as "the linchpin
for a protected social group," it "must be at the root of the
persecution, so that family membership itself brings about the
persecutorial conduct." Ruiz v. Mukasey, 526 F.3d 31, 38 (1st
Cir. 2008) (citing Gebremichael v. INS, 10 F.3d 28, 36 (1st Cir.
1993)). Moreover, "an alien's speculation or conjecture,
unsupported by hard evidence" is insufficient to establish nexus.
Morgan v. Holder, 634 F.3d 53, 59 (1st Cir. 2011).
The evidence in the record does not compel a finding
that Ruiz-Escobar established a nexus between his alleged past
persecution and his family membership. In particular, Ruiz-
Escobar's testimony regarding the 2011 break-in does not support
his assertion that he was targeted because of his membership in
the Ruiz family. Ruiz-Escobar said he had no idea who the
purported narcotraffickers who broke into his apartment were, who
they were looking for, or why they were looking for that
individual. See Perlera-Sola v. Holder, 699 F.3d 572, 577 (1st
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Cir. 2012) (holding that petitioner failed to establish nexus
because, although his testimony was deemed credible, he failed to
"identify any of the assailants and more importantly, their motives
for attacking his father"). Moreover, the IJ reasonably observed
that, if the purported narcotraffickers wished to harm Ruiz-
Escobar because of his family membership, they could have done so
during the 2011 break-in.
Nor does the evidence in the record compel the finding
that Ruiz-Escobar will likely face future persecution in Honduras
because of his family membership. Ruiz-Escobar's own belief that
he was being targeted by narcotraffickers because he was a member
of the Ruiz family amounts to no more than "speculation or
conjecture," which cannot establish nexus absent "hard evidence"
to support it. Morgan, 634 F.3d 59; see also Giraldo-Pabon v.
Lynch, 840 F.3d 21, 25 (1st Cir. 2016) (noting that petitioner's
own belief that her cousin was stabbed because of her other family
members' involvement in narcotrafficking was insufficient to
establish nexus). And the evidence in the record regarding the
death of Ruiz-Escobar's relatives does not form the "hard evidence"
necessary to compel the conclusion that membership in the Ruiz
family was the "root of the persecution, so that family membership
itself br[ought] about the persecutorial conduct." Ruiz, 526 F.3d
at 38.
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In particular, the relevant testimony regarding Los
Cachiros' motivation for killing Ruiz-Escobar's father and his
uncle Andres supports only an inference that Los Cachiros sought
to obtain the Ruiz family's land, not that the narcotraffickers
had a continuing interest in harming the Ruiz family once they
gained possession of that land. Cf. Hernandez-Lima, 836 F.3d at
115 (evidence that the petitioner's relatives faced extortion in
the past supports an inference that the perpetrators sought money
rather than to harm petitioners' family because of their kinship).
Ruiz-Escobar also failed to persuasively establish any
Los Cachiros involvement in the deaths of his uncles Jose, Santos,
and Hector, much less show that the uncles were killed by Los
Cachiros because they were members of the Ruiz family. Morgan,
634 F.3d at 59. Ruiz-Escobar admitted that he had no personal
knowledge of the circumstances of these uncles' deaths, and his
theory of their connection to Los Cachiros was supported only by
his and his relatives' uncorroborated hypotheses.4
The evidence also does not compel the conclusion that
Ruiz-Escobar's mother and cousin were killed because they were
members of the Ruiz family. To begin, the circumstances
surrounding the death of Ruiz-Escobar's mother are ambiguous. And
4 As the IJ reasonably found, the death certificates that
Ruiz-Escobar submitted failed to corroborate the alleged
connection between Los Cachiros and his uncles' deaths in part
because they contained no cause-of-death information.
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Ruiz-Escobar's testimony regarding his cousin supported the
inference that she was killed because of her attempt to end her
romantic relationship with a narcotrafficker, not that she was
killed because she was a member of the Ruiz family. See Marin-
Portillo v. Lynch, 834 F.3d 99, 101-02 (1st Cir. 2016) (noting
that threats to family members arising from personal disputes,
including disputes "motivated by revenge," are insufficient to
establish the required nexus to family membership).
Finally, the successful asylum application of Ruiz-
Escobar's sister does not compel a nexus finding. As the BIA
recognized in evaluating the probative value of the asylum grant,
asylum cases "virtually by definition . . . call for
individualized determinations." Morgan, 634 F.3d at 61. Here,
there is a paucity of information in the record regarding the
particular factual findings and legal analysis underlying Ruiz-
Escobar's sister's asylum grant.5 Cf. Nela v. Holder, 349 F. App'x
661, 663 (2d Cir. 2009) (upholding BIA conclusion that a grant of
asylum and WOR to the petitioner's brother, allegedly based on the
"same story" as petitioner's, was not material to the petitioner's
5 The only relevant details in the record include Ruiz-
Escobar's sister's asylum-approval letter, which does not state
the grounds for the approval, and general statements in her
affidavit stating that she "was granted asylum based on the fact
that [her] family was persecuted in Honduras, and that because of
[her] association with them, [she] was persecuted in the past in
Honduras and likely would be again in the future if [she were]
forced to return."
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claim because the IJ order granting asylum to the brother did not
state the grounds for relief).6
In all events, the "clear probability" standard for
establishing eligibility for WOR "is more stringent than the
showing required for asylum." Mendez-Barrera v. Holder, 602 F.3d
21, 27 (1st Cir. 2010). Nothing in the record compelled the BIA
or IJ to find that Ruiz-Escobar had met this standard.
C. Due Process Claims
Ruiz-Escobar's due process claims also fail. To show a
due process violation based on an alleged mistranslation, "the
petitioner must show that 'a more proficient or more accurate
interpretation would likely have made a dispositive difference in
the outcome of the proceeding.'" Matias v. Sessions, 871 F.3d 65,
71 (1st Cir. 2017) (quoting Teng v. Mukasey, 516 F.3d 12, 17-18
(1st Cir. 2008)). Ruiz-Escobar claims that the IJ violated his
right to due process by admitting the Spanish-language article
describing Lucio Rivera's arrest as rebuttal evidence without a
written English translation. But Ruiz-Escobar does not allege
that the interpreter's verbal translation of the article during
the hearing was erroneous. Moreover, during his testimony, Camilo
confirmed that the article accurately stated that Lucio had been
6 We also find no error in the BIA's determination that
the country-conditions reports submitted by Ruiz-Escobar are
irrelevant to the issue of nexus.
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convicted of three murders and was sentenced to 104 years in
prison. Finally, any error with respect to the admission of the
article has no bearing on the IJ's and BIA's conclusion that Ruiz-
Escobar failed to establish nexus, which we hold independently
supports denial of relief. Ruiz-Escobar fails to show that the
provision of a written translation of the article would have "made
a dispositive difference in the outcome of the proceeding."
Matias, 871 F.3d at 71.
Ruiz-Escobar also argues that the IJ violated his right
to due process by allowing "a highly material and prejudicial
translation error to stand." During the hearing, the interpreter
translated one of Ruiz-Escobar's statements as "Yes, but I ignored
what the questions [in the Record of Sworn Statement] were about."
Ruiz-Escobar contends that what he actually said was "Yes, but I
did not know what the questions [in the Record of Sworn Statement]
were about." According to Ruiz-Escobar, if the IJ found that Ruiz-
Escobar had known that he was signing a Record of Sworn Statement,
the IJ could have found that Ruiz-Escobar should have understood
the significance of that statement, whereas Ruiz-Escobar has
maintained that he did not know "what it was he was signing" when
he signed the Record of Sworn Statement. Ruiz-Escobar argues that
he was prejudiced by this alleged error because the IJ relied
solely on the Record of Sworn Statement to find that he was not
credible regarding his motive for entering the United States.
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Even if "I didn't know" is the more accurate translation,
as Ruiz-Escobar asserts, he fails to show prejudice because the IJ
expressly disclaimed any dependence on his views regarding Ruiz-
Escobar's credibility in reaching his decision to deny relief.
III. Conclusion
Ruiz-Escobar's petition for review is denied.
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