Flores-Coreas v. Mukasey , 261 F. App'x 287 ( 2008 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 07-1638
ONAN FLORES-COREAS,
Petitioner,
v.
MICHAEL B. MUKASEY, ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD
OF IMMIGRATION APPEALS
Before
Lipez, Circuit Judge,
Selya and Siler,* Senior Circuit Judges.
José A. Espinosa on brief for petitioner.
Peter D. Keisler, Assistant Attorney General, Civil Division,
Terri J. Scadron, Assistant Director, Office of Immigration
Litigation, and Greg D. Mack, Senior Litigation Counsel, Office of
Immigration Litigation, on brief for respondent.
February 1, 2008
_______________
*Of the Sixth Circuit, sitting by designation.
Per Curiam. In this immigration case, petitioner Onan
Flores-Coreas, a citizen of El Salvador, seeks judicial review of
a final decree of the Board of Immigration Appeals (BIA) dated
April 3, 2007. That decree affirmed a decision of an immigration
judge (IJ) declaring the petitioner ineligible for asylum,
withholding of removal, and/or protection under the United Nations
Convention Against Torture (CAT). For the reasons that follow, we
deny the petition.
The relevant facts are straightforward. The petitioner,
now in his late twenties, was born in El Salvador. After spending
much of his childhood there, he lived for a period of time in the
United States. He then repaired to El Salvador. The events at
issue in this proceeding transpired after he had returned to his
homeland.
The IJ credited the petitioner's testimony, so we start
there. The petitioner testified to a number of negative encounters
with gang members in El Salvador from and after 1999. These
encounters included a robbery and a concomitant assault, at least
one attempt to recruit him as a gang member, efforts to extort
money, and a variety of threats. The petitioner attributed these
maraudings to his active membership in a liberal apostolic
Christian church (El Salvador is a largely Catholic country) and to
his refusal to join a gang. He also admitted, however, that (i)
the gangs aspired to recruit individuals who, like himself, owned
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automobiles, and (ii) the gangs also aspired to recruit individuals
who, like himself, had lived in the continental United States
(assuming that such individuals had money).
The adverse experiences chronicled by the petitioner
spanned a three-year period from 1999 to the end of 2001. After
that, he hid in his house but still could not escape the gangs'
unrequited attention.
The dénouement occurred in 2003. On one occasion during
that year, gang members came to the petitioner's home after a
drinking spree and waited for him to emerge. They left when others
told them (falsely) that the petitioner was not there.
A month later, the petitioner fled. He entered the
United States, without inspection, at or near Columbus, New Mexico,
around November 7, 2003. He was immediately detained, and the
Department of Homeland Security initiated removal proceedings. In
due course, the petitioner conceded removability and cross-applied
for asylum, withholding of removal, and protection under the CAT.
Following an evidentiary hearing, the IJ concluded that
the petitioner's testimony was credible but that he had failed to
establish that he was targeted by the gangs because of his
religious or political beliefs. In the IJ's view, the gangs
appeared to be harassing the petitioner because of his perceived
affluence. Thus, the petitioner had not carried the burden of
demonstrating a nexus between the claimed persecution (the gangs'
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offensive conduct) and a characteristic protected under the
Immigration and Nationality Act.
The IJ also found that although gang members had
addressed some threats to the petitioner concerning his refusal to
join their ranks, these threats were neither "of an escalating
nature" nor "severe." As to the fact that the petitioner had been
physically assaulted on one occasion, the IJ noted that the assault
transpired "in connection with being robbed." In sum, the series
of incidents that had occurred did not add up to persecution.
Based on these and other findings, the IJ denied all
three forms of requested relief. On appeal, the BIA affirmed the
IJ's decision, stating that the petitioner had "failed to establish
that the gangs in El Salvador, who attempted to rob him and extort
money from him, were motivated by his political opinion, imputed
political opinion, religion, or another protected ground, rather
than by financial gain." In addition, the BIA observed that the
petitioner had not established that the gangs were working with the
government or that the government lacked power over them.
Consequently, the petitioner's generalized fear that he would fall
prey to gang violence should he be returned to El Salvador did not
render him eligible either for protection under the CAT or for any
other relief.
Once the BIA ruled that the petitioner had failed to
satisfy the requirements for asylum, withholding of removal, or
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protection under the CAT, the petitioner filed this petition for
judicial review. The petition is timely, see 8 U.S.C. §
1252(b)(1), and we have jurisdiction to entertain it under 8 U.S.C.
§ 1252, as amended.
We begin our substantive analysis by examining the
petitioner's asylum claim. To qualify for asylum, an alien
initially must establish his status as a refugee, that is, a person
who is unable or unwilling to return to his homeland "because of
persecution . . . on account of race, religion, nationality,
membership in a particular social group, or political opinion." 8
U.S.C. § 1101(a)(42)(A); see INS v. Cardoza-Fonseca, 480 U.S. 421,
428 (1987); Jiang v. Gonzales, 474 F.3d 25, 30 (1st Cir. 2007).
"Persecution is a protean term, not defined by statute." Lopez de
Hincapie v. Gonzales, 494 F.3d 213, 217 (1st Cir. 2007). "One
element in the decisional calculus involves the degree of the harm
inflicted or threatened." Id. To sink to the level of
persecution, "the sum of an alien's experiences must add up to more
than ordinary harassment, mistreatment, or suffering." Id.; see
Bocova v. Gonzales, 412 F.3d 257, 263 (1st Cir. 2005).
Given a sufficient showing of harm, an alien can base an
asylum claim on a showing that he has been persecuted in the past
or, alternatively, that he harbors a well-founded fear of future
persecution. See Makhoul v. Ashcroft, 387 F.3d 75, 79 (1st Cir.
2004). In either event, however, he must show a nexus between the
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harm (whether past or threatened) and one of the five statutorily
protected grounds. See, e.g., Raza v. Gonzales, 484 F.3d 125, 128-
29 (1st Cir. 2007); Makhoul, 387 F.3d at 79. To accomplish this
feat, the petitioner must "provide sufficient evidence to forge an
actual connection between the harm and some statutorily protected
ground." Lopez de Hincapie, 494 F.3d at 218; see Da Silva v.
Ashcroft 394 F.3d 1, 6 (1st Cir. 2005); see also 8 C.F.R. §
208.13(b)(1).
The question of whether persecution is on account of one
of the five statutorily protected grounds is factbound. Hence, we
review the BIA's answer to that question through the prism of the
substantial evidence rule. See Lopez de Hincapie, 494 F.3d at 218.
"This is a highly deferential standard, under which we must uphold
the BIA's determination as long as that determination is 'supported
by reasonable, substantial, and probative evidence on the record
considered as a whole.'" Id. (quoting INS v. Elias-Zacarias, 502
U.S. 478, 481 (1992)). "That the record supports a conclusion
contrary to that reached by the BIA is not enough to warrant
upsetting the BIA's view of the matter; for that to occur, the
record must compel the contrary conclusion." Id. (citing Elias-
Zacarias, 502 U.S. at 481 n.1)(emphasis in original); see 8 U.S.C.
§ 1252(b)(4)(B) (mandating that, in this context, "administrative
findings of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary").
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Here, the petitioner tries to connect the gangs' unruly
conduct to his religious persuasion (membership in an apostolic
Christian church) or, alternatively, to his political opinion
(imputed from his refusal to join a gang). But he weaves these
connections out of the gossamer strands of speculation and surmise.
In support, he offers only his personal (subjective) conviction and
weak circumstantial evidence that either or both of these reasons
spurred the gangs' actions. Hard evidence of the required nexus is
conspicuously absent.
We add, moreover, that what evidence exists in the record
invites the inference that the gangs targeted the petitioner
because of greed, not religion or politics. That inference is
reinforced by its plausibility: gangs typically are composed of
common criminals who are apt to resort to force to accomplish their
nefarious ends. See Romilus v. Ashcroft, 385 F.3d 1, 6-7 (1st Cir.
2004). Even reading the record with a charitable eye, the gangs'
actions (as the petitioner describes them) could just as easily
have been prompted by a desire to extort money as by any motive
connected to a statutorily protected ground. That state of affairs
leaves us no principled choice but to uphold the BIA's
determination.1 After all, where the record admits of plausible
1
Because this ground suffices to sustain the denial of the
claim for asylum, we need not consider the BIA's alternative
holding that the conduct complained of, though harassing, did not
sink to the level of persecution.
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but conflicting inferences, the agency's choice between those
inferences is necessarily supported by substantial evidence. See
Bocova, 412 F.3d at 264; Aguilar-Solis v. INS, 168 F.3d 565, 571
(1st Cir. 1999).
Let us be perfectly clear. We are not without empathy
for the petitioner's plight. Gang violence apparently is endemic
in El Salvador, and the events described by the petitioner paint an
unattractive picture. But the substantial evidence rule demands
that we uphold the agency's determination unless the evidence
"points unerringly in the opposite direction." Laurent v.
Ashcroft, 359 F.3d 59, 64 (1st Cir. 2004). The evidence here does
not approach that level of certitude in connection with the
putative relationship between the gangs' menacing actions and the
petitioner's religious and/or political beliefs.
We need not linger long over the petitioner's claim for
withholding of removal. Although the tests for asylum and
withholding of removal differ somewhat, the "on account of"
requirement is embedded identically in each formulation. See INS
v. Stevic, 467 U.S. 420, 429-30 (1984). Accordingly, the
petitioner's failure to establish a nexus between the conduct
complained of and some statutorily protected ground serves equally
to defeat his withholding of removal claim. See, e.g., Lopez de
Hincapie, 494 F.3d at 220.
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This leaves the petitioner's CAT claim. Unlike his other
two claims, this claim does not embody an "on account of" element.
An alien can prevail on a CAT claim simply by showing that, more
likely than not, he will be tortured if repatriated. See 8 C.F.R.
§ 208.16(c)(2); see also Ang v. Gonzales, 430 F.3d 50, 58 (1st Cir.
2005). He need not establish a nexus between the predicted torture
and some statutorily protected ground.
We review the BIA's disposition of a CAT claim by
application of the substantial evidence rule. See Settenda v.
Ashcroft, 377 F.3d 89, 93 (1st Cir. 2004). Thus, we must honor the
BIA's resolution of the petitioner's CAT claim unless the evidence
compels us to reach a different conclusion. Id. The petitioner
cannot surmount this hurdle.
In order to qualify for protection under the CAT, an
alien must demonstrate that it is more likely than not that he will
be tortured if returned to his country of origin. 8 C.F.R. §
1208.16(c)(2). For purposes of the CAT, "[t]orture is defined as
any act by which severe pain or suffering, whether physical or
mental, is intentionally inflicted on a person . . . by or at the
. . . acquiescence of a public official or other person acting in
an official capacity." Id. § 208.18(a)(1). Passing the question
of whether the actions of which the petitioner complains can be
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equated with torture,2 there is nothing in the record that compels
the conclusion that the petitioner, if remitted to his homeland, is
likely to be tortured either by the government or through
governmental acquiescence. We explain briefly.
In this instance, the petitioner avers that he would be
harmed (i.e., tortured) by gangs upon his return to El Salvador.
While he acknowledges that the gangs are not officially sanctioned,
he asserts that the government is unable to control them.
Admittedly, the record is tenebrous on this point.
Nevertheless, the BIA concluded, inter alia, that the petitioner
had failed to establish that the El Salvadoran government would
acquiesce in the gangs' infliction of harm upon private citizens.
The very murkiness of the record means that we are not compelled to
decide otherwise, and it therefore makes the BIA's conclusion
invulnerable.
At any rate, there is evidence that gang violence
constitutes a serious problem in El Salvador, but that the police
attempt with some success to prevent that activity.3 While that
2
Torture is "an extreme form of cruel and inhuman treatment
and does not include lesser forms of cruel, inhuman or degrading
treatment . . . ." 8 C.F.R. § 208.18(a)(2). The government
asseverates that no conduct extreme enough to constitute "torture"
was in prospect here. Given our ratio decidendi, we need not
address this argument.
3
Indeed, this evidence is buttressed by the petitioner's
affidavit, in which he states that it was the intercession of a
guard that stopped gang members from harassing him in the December
2001 incident of which he complains.
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sort of stand-off may be of scant solace to the citizenry, it
plainly supports an inference that the government neither condones
gang violence nor is helpless in the face of it.4
The short of it is that the petitioner has not adduced
any compelling evidence that the putative torturers are state
actors or, alternatively, that the authorities would be in some way
complicit (or at least acquiescent) in the infliction of harm.
This is dispositive because the infliction of harm does not
constitute torture within the meaning of the CAT unless that harm
is inflicted by, at the direction of, or with the acquiescence of
government officials. See 8 C.F.R. § 208.18(a)(1); Sharari v.
Gonzales, 407 F.3d 467, 475-76 (1st Cir. 2005). Given this gap in
the proof, the agency's denial of the petitioner's claim for
protection under the CAT must stand.
We need go no further. For the reasons elucidated above,
we uphold the BIA's rejection of the petitioner's claims.
The petition for review is denied.
4
To be sure, the petitioner did submit some "country
conditions" evidence suggesting that the El Salvadoran government
has not been fully able to bring gang violence to heel. But the
petitioner has fallen short of providing compelling evidence to
support the conclusion that gang violence is either out of control
or conducted with the government's tacit consent.
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