Ayala v. Holder, Jr. ( 2012 )

United States Court of Appeals
For the First Circuit
No. 11-1737
MARIA AYALA,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Selya and Thompson, Circuit Judges.
Stephen M. Born and Mills and Born, Attorneys at Law on brief
for petitioner.
Tony West, Assistant Attorney General, Civil Division, Ernesto
H. Molina, Jr., Assistant Director, and Joanna L. Watson, Trial
Attorney, Office of Immigration Litigation, on brief for
respondent.
June 27, 2012
THOMPSON, Circuit Judge. Maria Ayala, a Guatemalan
native, petitions for review of a final removal order. She argues
that the immigration courts committed several legal errors when
they denied her asylum petition. We agree with the immigration
courts, however, that Ayala is not eligible for asylum because she
has proven neither past persecution nor any likelihood of future
persecution on account of a protected ground. These conclusions
sink Ayala's asylum claim and lead us to deny her review petition.
We take the facts mostly from Ayala's testimony before
the immigration judge (IJ), who found her wholly credible,
supplementing with just a touch of history for context.
Ayala was born in 1957, about three weeks after
Guatemala's president Carlos Castillo Armas was assassinated. The
decades that followed were tumultuous ones for the country, with
guerilla violence gradually becoming more and more common until
peace finally arrived in 1996.
Ayala's family was not immune from that violence. In
1981, guerilla fighters executed her cousin Ugo Castillo for
refusing to support them. In 1983, guerillas first threatened,
then kidnapped, and eventually killed another of her cousins, Oscar
Castillo. Later in the 1980s, guerillas tied up her grandparents,
robbed them, and threatened to kill them; shaken, both died soon
thereafter. In 1993, Ayala fled to the United States, leaving
behind two children, ages fourteen and ten.
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Ayala arrived in California on April 21, 1993. A few
months later, she filed an affirmative petition for asylum,
withholding of removal, and protection under the Convention Against
Torture (CAT). At some point she came to make her home in
Providence, Rhode Island.
Then in September 2006, the Department of Homeland
Security issued Ayala a Notice to Appear (NTA) charging her with
removability because she had not been admitted into the United
States. Ayala conceded removability but pressed her affirmative
claims for relief. After an evidentiary hearing, the IJ found
Ayala credible but denied her relief because she could not prove
past persecution, establish a reasonable fear of future persecution
on account of a protected ground, or meet the more difficult tests
for withholding of removal and CAT protection. The Board of
Immigration Appeals (BIA) affirmed, and Ayala has appealed to us,
raising only asylum-related issues and abandoning her withholding-
of-removal and CAT-protection claims.
We review immigration courts' "determinations of
statutory eligibility for relief from deportation" for substantial
evidence, meaning the decisions are conclusive as long as they are
"supported by reasonable, substantial, and probative evidence on
the record considered as a whole." Hasan v. Holder, 673 F.3d 26,
33 (1st Cir. 2012) (internal quotation marks omitted). We review
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legal questions de novo. Albathani v. INS, 318 F.3d 365, 372 (1st
Cir. 2003). And we have jurisdiction under 8 U.S.C. § 1252.
We begin with a brief outline of asylum law.1 A
petitioner may be eligible for asylum if she can demonstrate that
she is a refugee. 8 U.S.C. § 1158(b)(1)(A). A refugee is a person
who has a well-founded fear that, if she is returned to her home
country, she will suffer persecution on account of a legally
protected ground. Id. § 1101(a)(42). Proof of past persecution
creates a presumption of future persecution that the government may
rebut. 8 C.F.R. § 1208.13(b)(1). Persecution normally involves
"severe mistreatment at the hands of [a petitioner's] own
government," but it may also arise where "non-governmental actors
. . . are in league with the government or are not controllable by
the government." Silva v. Ashcroft, 394 F.3d 1, 7 (1st Cir. 2005).
That should provide sufficient context for today's purposes; we
move on to Ayala's arguments.
Ayala first claims that the guerillas' attacks on her
cousins and grandparents constitute past persecution. But to
constitute past persecution, the guerillas' acts must have been "on
account of" some legally protected ground. Ayala has not squarely
addressed this requirement. The closest she comes is claiming the
1
The REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 302,
amended some provisions of asylum law; the parties agree that these
amendments do not apply here because Ayala's petition predates the
Act.
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existence of a legally protected "particular social group" -- "a
family that opposed guerilla warriors" -- that would presumably
encompass her cousins, her grandparents, and Ayala herself. But
there is no evidence to support the claim that guerillas targeted
Ayala's family members on account of their membership in the
family. And the absence of any such evidence defeats her claim of
past persecution on account of a legally protected ground. See
Hincapie v. Gonzales, 494 F.3d 213, 219 (1st Cir. 2007) (it is the
petitioner's burden "to furnish some credible evidence of the
motivation underlying" alleged persecution).
Essentially the same analysis disposes of Ayala's future-
persecution arguments. For Ayala to be a refugee eligible for
asylum, she must demonstrate that the persecution she fears will be
on account of a legally protected ground. Ayala claims she will be
persecuted on account of her membership in "a family that opposed
guerilla warriors," but we have already said there is no evidence
to support this claim. She also claims membership in the
"particular social group" of "perceived . . . wealthy Guatemalan[s]
returning after having spent time abroad." But we have
consistently rejected asylum claims based on perceived wealth
because of a petitioner's connections to the United States, and we
are bound by this precedent. Lopez Perez v. Holder, 587 F.3d 456,
463 (1st Cir. 2009) (holding that a Guatemalan petitioner's fear of
"being targeted by criminal elements as an emigré from the United
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States" was "a non-factor in analyzing the prospect of future
persecution"); López Castro v. Holder, 577 F.3d 49, 54 (1st Cir.
2009) (petitioner's claim of exposure to "future attacks by gang
members in Guatemala because he will be perceived as wealthy . . .
fails to establish an objectively reasonable basis for a fear of
future persecution premised on a statutorily protected ground");
Hincapie, 494 F.3d at 219 (threats "prompted by a desire to extort
money" are not "connected to a statutorily protected ground" for
asylum purposes). We therefore hold that Ayala has not shown any
likelihood of future persecution on account of her membership in a
protected group.
There is one final argument on the table: Ayala says that
even if she has no well-founded fear of persecution on account of
a protected ground, she may still be entitled to relief under 8
C.F.R. § 208.13(b)(1)(iii)(B). That code provision allows for
asylum where "there is a reasonable possibility that [a petitioner]
may suffer other serious harm upon removal to [her home] country."
Neither party addresses the argument in any detail, and we can
dispatch it quickly: § 208.13(b)(1)(iii)(B) applies only to "an
applicant described in paragraph (b)(1)(i) of this section";
§ 208.13(b)(1)(i) describes an applicant "found to be a refugee on
the basis of past persecution" who is nevertheless ineligible for
asylum due, e.g., to changed country conditions; and we have said
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there was no past persecution here. By its terms,
§ 208.13(b)(1)(iii)(B) does not apply to Ayala.
Ayala has not established that she suffered past
persecution or that she has a well-established fear of future
persecution on account of a protected ground; she is therefore
ineligible for asylum. Accordingly, we deny the petition for
review and affirm the final order of removal.
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