Bedoya Lopez de Zea v. Holder ( 2014 )

United States Court of Appeals
For the First Circuit
No. 13-2059
CLAUDIA NINETH BEDOYA LOPEZ DE ZEA,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
PETITION FOR REVIEW FROM AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Howard and Lipez, Circuit Judges.
Randy Olen on brief for petitioner.
Jesse M. Bless, Trial Attorney, Office of Immigration
Litigation, Civil Division, Stuart Delery, Assistant Attorney
General, Civil Division, and Anthony C. Payne, Senior Litigation
Counsel, on brief for respondent.
July 30, 2014
LYNCH, Chief Judge. Claudia Nineth Bedoya Lopez de Zea
("Bedoya") petitions for review of the Board of Immigration
Appeals' ("BIA") decision, challenging only the determination that
she was not eligible for withholding of removal. We deny the
petition because substantial evidence supports the BIA's findings
that Bedoya had established neither past persecution nor a clear
probability of future persecution.
I.
Bedoya, a native and citizen of Guatemala, came to the
United States on a tourist visa on March 26, 2002, and has
overstayed. It is now almost ten years after her 2004 Notice to
Appear. With the benefit of generous continuances, she did not
concede removability until September 2006, and she later sought
relief, including withholding of removal.
Her merits hearing before an Immigration Judge ("IJ") was
not until April 2, 2010. Bedoya testified that she "had a problem
with [a] group of people" in Guatemala known as "guerillas."
Specifically, the guerillas started to threaten her father after he
was elected as the mayor of a small community in 1974, during the
Guatemalan civil war. They also once "broke the window of [her]
father's car"; he did not pay much attention to the threats.
In 1991, Bedoya joined a club that was dedicated to
improving the local community; her father was also a member, and
the organization engaged in fundraising activities for local
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schools and donated Christmas gifts to neighborhood children. The
same year that Bedoya joined this club, she testified that the
guerillas shot at the gates of her home. Nobody was harmed.
Bedoya was associated with this club for six years, until 1997.
Bedoya said that the guerillas also called her house and
told her family that something might happen to them because they
were not supposed to help improve the community. The guerillas
other times knocked on the door of her family's home and then fled.
Bedoya testified that these threats happened about once a month.
She reported them to the police, who never made an arrest.
Bedoya testified that in September 2001, another car hit
hers while she was on her way to work. She did not recognize the
male driver from the car accident. The accident occurred four
years after she had stopped her work with the community-improvement
club, but the man told Bedoya that he was not pleased that she had
partaken in activities to improve the town. He broke the windows
of her car, threatened her, and hit her upper arm, bruising it.
Bedoya had written down the man's license plate and
reported the incident to the police. The police later told her
that they had not identified the man and had lost the incident
report.
Bedoya also testified that she had visited the United
States about six or seven times between 1980 and 1999 and always
returned to Guatemala because she had not "pa[id] much attention"
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to the guerillas' threats. Bedoya visited the United States on
December 17, 2001, three months after the car accident. She
returned to Guatemala about a month later because she thought a
month was sufficient time for things to calm down. Bedoya was not
physically attacked when she returned to Guatemala.
She continued to receive threatening phone calls before
her final trip to the United States in March 2002, when she finally
decided not to return to Guatemala. She was afraid that if she
returned to Guatemala, the guerillas would make extortionate
threats against her children who are American citizens because of
Guatemalans' perception that Americans are wealthy.1
Bedoya's father still lives in Guatemala. He is no
longer the mayor of his community, but still supports his political
party. Bedoya explained that since she left Guatemala the
guerillas have continued to threaten her father over the phone
every "once in a while," but that no other incidents have occurred.
Bedoya was the only witness at her merits hearing.
After the hearing, the IJ denied Bedoya's application for
asylum, withholding of removal, and protection under the Convention
Against Torture in an oral decision. As to Bedoya's withholding of
1
When Bedoya came to the United States in March 2002, she
had two children. Her first child was born in Guatemala. Her
second child, however, is a United States citizen and was born in
May 2001 during one of Bedoya's visits to the United States.
Bedoya later gave birth to a third child in the United States in
July 2003.
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removal claim, the IJ found that she had not established a clear
probability that she would face future persecution if she were to
return to Guatemala.2 The IJ, however, did not make a specific
finding as to whether Bedoya had established past persecution.
Bedoya appealed to the BIA. On December 23, 2011, the
BIA remanded the case to the IJ so that he could determine in the
first instance whether or not Bedoya had been subjected to past
persecution. Such a finding would create a presumption of future
persecution, which the Department of Homeland Security would have
to rebut. See Orelien v. Gonzales, 467 F.3d 67, 71 (1st Cir. 2006)
(explaining that a showing of past persecution based on a protected
ground entitles a petitioner to a rebuttable presumption of future
persecution).
On remand, the IJ determined that Bedoya was not entitled
to a presumption of future persecution because there was no nexus
between a protected ground and the harm that she suffered in
Guatemala. As to the 2001 car accident, the IJ specifically found
that the man who hit Bedoya's car had acted outrageously, but that
his remarks about Bedoya's efforts to improve the community did not
establish that his conduct was on account of a protected ground.
The IJ also held that even if Bedoya had suffered past persecution,
the Guatemalan civil war had "long since been over and [Bedoya] is
2
Only Bedoya's withholding of removal claim is at issue
here. She has not petitioned for review of the denial of her other
claims.
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not likely to suffer any future persecution on account of her
family's real or perceived status as [a] pro-government[,] anti-
guerilla faction." In addition, Bedoya's travel to the United
States and voluntary return to Guatemala shortly after the car
accident undermined her claim of a well-founded fear of future
persecution. The IJ denied Bedoya's withholding of removal claim
and ordered her removed to Guatemala.3 Bedoya appealed to the BIA
a second time.
On July 30,2013, the BIA dismissed Bedoya's appeal. The
BIA explained that "the totality of a petitioner's experiences
[must] add up to more than mere discomfiture, unpleasantness,
harassment, or unfair treatment" to constitute past persecution.
(quoting Nikijuluw v. Gonzales, 427 F.3d 115, 120 (1st Cir. 2005))
(internal quotation marks omitted). The BIA determined that "the
gunshots at [Bedoya's] house, the threats [that Bedoya's] family
received as a result of her father's position as mayor, and finally
the 2001 car accident in which [Bedoya] was apparently struck on
her arm and threatened, do not satisfy this standard."
The BIA also found that Bedoya had not established a
clear probability of future persecution because she had not
presented any evidence that she would be targeted based on her
father's former position as mayor and her former membership in the
3
The IJ noted that Bedoya was a good candidate for voluntary
departure but that she had withdrawn her request for voluntary
departure at a previous hearing.
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community improvement group. In addition, the BIA held "there is
no evidence that [Bedoya had] suffered harm on th[e] return [to
Guatemala] prior to her most recent entry in the United States in
March 2002." Indeed, the BIA agreed with the IJ that Bedoya's
frequent travel to the United States and voluntary return to
Guatemala before March 2002 undermined her claim of a likelihood of
future persecution. As a result, Bedoya was not eligible for
withholding of removal. This petition for review followed.
II.
Where, as here, "the BIA affirmed the IJ's decision and
added its own analysis," we can review both decisions. Ang v.
Holder, 723 F.3d 6, 10 (1st Cir. 2013). We review the BIA's
findings of fact under the substantial evidence standard,
"reversing only if a 'reasonable adjudicator would be compelled to
conclude to the contrary.'" Id. (quoting Khan v. Mukasey, 549 F.3d
573, 576 (1st Cir. 2008)).
To be eligible for withholding of removal, Bedoya must
prove it is more likely than not that she would be subjected to
persecution on account of a statutorily protected ground should she
be repatriated to Guatemala. Mazariegos-Paiz v. Holder, 734 F.3d
57, 64 (1st Cir. 2013). Proof of past persecution on account of a
protected ground creates a rebuttable presumption of future
persecution. Id.
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Bedoya first argues that the BIA's determination that she
had not suffered past persecution was erroneous. Not so. As the
BIA correctly stated, persecution requires more than
"unpleasantness, harassment, and even basic suffering." Jorgji v.
Mukasey, 514 F.3d 53, 57 (1st Cir. 2008) (quoting Nelson v. I.N.S.,
232 F.3d 258, 263 (1st Cir. 2000)) (internal quotation mark
omitted). It is relevant whether the harm is systematic or a
series of isolated events, as is the severity, duration, and
frequency of the harm. Barsoum v. Holder, 617 F.3d 73, 79 (1st
Cir. 2010).
Here, ten years separated the gunshots fired at the gates
of her home in 1991 and the 2001 car accident. Not only were the
few incidents of mistreatment infrequent and sporadic, but the only
physical harm that Bedoya suffered in Guatemala was a bruise on her
arm. See Topalli v. Gonzales, 417 F.3d 128, 132-33 (1st Cir. 2005)
(explaining that severity of physical harm, including whether or
not medical attention was required, is relevant to persecution
inquiry). Neither the severity nor the frequency or duration of
the alleged mistreatment rises to the level of persecution.
Bedoya also asserts that credible verbal death threats
can constitute persecution. See Un v. Gonzales, 415 F.3d 205, 210
(1st Cir. 2005). However, Bedoya ignores her own testimony that
neither she nor her father paid much attention to the guerillas'
threats, undermining any inference that those threats were
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credible. In short, the BIA reasonably concluded that the threats
and mistreatment that Bedoya and her family suffered in Guatemala
did not establish past persecution, and so Bedoya enjoyed no
presumption of future persecution. See, e.g., Abdelmalek v.
Mukasey, 540 F.3d 19, 23 (1st Cir. 2008) (concluding that "[a]
series of somewhat vague verbal threats, seemingly unaccompanied by
any significant physical abuse and any government involvement or
acquiescence, simply does not rise to the level of persecution").
As to the future persecution prong of her withholding
claim, Bedoya says the BIA erred in "assigning conclusive weight"
to the evidence that she had voluntarily returned to Guatemala
after several visits to the United States, including a trip shortly
after the 2001 car accident. This argument simply misreads the
BIA's opinion. The BIA's conclusion rested primarily on the lack
of record evidence that Bedoya would be targeted or harmed if she
were to return to Guatemala, and Bedoya's voluntary return to
Guatemala was only one factor relevant to that analysis. See Cabas
v. Holder, 695 F.3d 169, 174-75 (1st Cir. 2012) (a petitioner's
voluntary return to his homeland undermines his claim of future
persecution).
Bedoya does not dispute that the guerillas have not
physically harmed her father since she came to the United States,
although her father has continued to support his political party.
Nor does she contest the BIA's finding that she did not suffer
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physical harm during her return to Guatemala after her December
2001 trip to the United States but before her final departure to
this country in March 2002. She points only to the intermittent
telephone threats that her father has received from guerillas,
which are, without more, insufficient to show that she would suffer
persecution were she to return to Guatemala. As a result,
substantial evidence supports the BIA's conclusion that Bedoya has
not established a likelihood of future persecution, and Bedoya is
not eligible for withholding of removal.4
III.
For the reasons stated, the petition for review is
denied.
4
We note that Bedoya has also challenged aspects of the
IJ's decision denying her withholding of removal claim. Here,
however, the BIA affirmed the IJ's decision after conducting its
own analysis as to why Bedoya had not established either past
persecution or a clear probability of future persecution. The
BIA's findings, which are substantially supported by the record,
provide an independent basis for the denial of Bedoya's withholding
claim. So, we need not address her arguments directed at the IJ's
decision. See Pulisir v. Mukasey, 524 F.3d 302, 307-08 (1st Cir.
2008) (focusing judicial review on BIA's decision where BIA's
affirmance of the IJ's decision was on a "self-generated
rationale").
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