INS v. Robles ( 2002 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 01-2323
MARCO G. ROBLES,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Torruella, Circuit Judge,
Cyr and Stahl, Senior Circuit Judges.
William E. Graves, Jr., with whom Kerry E. Doyle and Graves &
Doyle, were on brief, for petitioner.
Brenda M. O'Malley, Attorney, Office of Immigration
Litigation, Civil Division, with whom Robert D. McCallum, Jr.,
Assistant Attorney General, and Terri J. Scadron, Senior Litigation
Counsel, were on brief, for respondent.
December 31, 2002
Per Curiam. Marco Robles appeals from the Board of
Immigration Appeals's ("BIA") denial of his petitions for asylum
and withholding of removal. He also challenges the BIA's
determination that he was not denied due process of law at his
immigration hearing. We affirm.
I. Background Facts
Robles is a Guatemalan of Mayan Indian descent. In
September 1989, his uncle, who was the mayor of his small town, and
his three cousins were killed and their bodies were mutilated by
unknown assailants. Robles had worked closely with them on an
agricultural education project, which was not opposed by the
government. Robles is unsure if the killings were because of his
uncle's position as mayor, or if his relatives were targeted
because of their agricultural teachings.
Shortly after the murders, Robles was approached at a
public gathering and told, "You are next." Approximately eighteen
months after the murders, Robles moved to Guatemala City, where he
lived for six months. He entered the United States on foot,
without inspection, in January 1992. Robles claimed that he fled
Guatemala because he was "just trying to preserve [his] life."
Robles filed for asylum in January 1996. At an Order to
Show Cause hearing in front of an Immigration Judge ("IJ"), Robles
was represented by Elizabeth Skelton, a Canadian attorney not
admitted to practice in the United States and not familiar with
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immigration law. At his hearing, Robles testified that he felt
fear and insecurity in his homeland, that no one has been
apprehended for the murders of his relatives, and that his family
believes that he will not be safe if he returns. The IJ found
Robles's testimony internally consistent and credible but concluded
that he was not eligible for asylum. The IJ therefore concluded
that Robles was deportable as charged, and later denied Robles's
application for asylum and withholding relief. The BIA adopted the
IJ's decision and dismissed Robles's appeal; it also rejected
Robles's claim that his due process rights were violated by the
presence of an unaccredited representative at his hearing. This
petition for review followed.
II. Standard of Review
The decision of the BIA denying Robles asylum is subject
to a deferential standard of review.
The BIA's determination that [petitioner] was
not eligible for asylum must be upheld if
"supported by reasonable, substantial, and
probative evidence on the record considered as
a whole." It can be reversed only if the
evidence presented by [petitioner] was such
that a reasonable factfinder would have to
conclude that the requisite fear of
persecution existed.
INS v. Elías-Zacarías, 502 U.S. 478, 481 (1992) (citations
omitted).
Robles's claim that the immigration judge violated his
due process rights by allowing his friend to represent him is
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reviewed de novo. See Morales v. INS, 208 F.3d 323, 327 (1st Cir.
2000).
III. Discussion
After a review of the record, we determine that the BIA
had substantial evidence to deny Robles's claim for political
asylum. An applicant for asylum must demonstrate that he is
statutorily eligible for relief, and that he warrants it as a
matter of discretion. An alien is eligible for asylum if he can
show that he either has suffered past persecution or has a well-
founded fear of future persecution on account of race, religion,
nationality, membership in a particular social group, or political
opinion. Elías-Zacarías, 502 U.S. at 481. To qualify as
persecution, a person's experience must rise above unpleasantness,
harassment, and even basic suffering. Nelson v. INS, 223 F.3d 258,
263 (1st Cir. 2000).
Robles experienced tragic events in Guatemala: four of
his relatives were murdered and he was subjected to a vague threat.
However, the BIA was reasonable in finding that this is
insufficient evidence of past or future persecution to warrant
asylum.1 Robles is unsure of the identity or motivation of those
who killed his relatives and threatened him. He cannot show that
1
Since Robles is unable to meet the standard for asylum, he is
also unable to meet the standard for withholding of deportation,
which requires a higher showing. Velásquez v. Ashcroft, 305 F.3d
62, 64 n.2 (1st Cir. 2002).
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they were targeted on account of their membership in a statutorily
protected group. See 8 U.S.C. § 1101(a)(42)(A). Even after being
threatened, Robles continued to live in Guatemala without incident,
spending nearly a year in the small town he grew up in and six
months in Guatemala City. Cf. Velásquez, 305 F.3d at 66 (noting
that petitioners' continued residence in Guatemala following the
killing of their family members and a threat against them supported
the BIA’s finding that petitioners were not targeted on any
individual basis). Robles’s immediate family continues to reside
peacefully in his hometown, and his father continues to work in
agriculture. Cf. id. ("'The fact that close relatives continue to
live peacefully in the alien's homeland undercuts the alien's claim
that persecution awaits his return.'") (quoting Aguilar-Solís v.
INS, 168 F.3d 565, 573 (1st Cir. 1999)). There was no evidence
presented that Robles's life would be in danger if he returned.
Finally, documentary evidence shows that a peace accord was signed
in 1996, ending a thirty-six year civil war between guerilla groups
and the government, and that the overall human rights situation in
Guatemala has improved since Robles's departure.
We also hold that Robles was not denied due process at
his immigration hearing. He was afforded the opportunity to
present his case and testified on his own behalf. Skelton
conducted a detailed direct examination. Skelton also invited
Robles to describe his decision to leave Guatemala and the current
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situation in that country. After the testimony, Skelton directed
the IJ's attention to documentary evidence which she believed
supported Robles's asylum claim. Robles was then cross-examined,
and the IJ asked him questions. Robles testified through an
interpreter and was permitted to answer all questions without
comment or interruption. If Robles failed to present detailed
evidence at his immigration hearing, it was not because he was not
given sufficient opportunity. Robles has also failed to show how
his case would have been decided differently if someone other than
Skelton had represented him at the hearing. See Michelson v. INS,
897 F.2d 465, 468 (10th Cir. 1990). He has not proffered any
additional testimonial or documentary evidence that would have been
presented to the IJ had Skelton not participated in the hearing.
For the reasons stated above, the decision of the Board
of Immigration Appeals is affirmed.
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