Recinos-Castillo v. Holder ( 2011 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 10-2333
MATILDE RECINOS-CASTILLO,
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,
Stahl and Lipez, Circuit Judges.
Randy Olen and Robert D. Watt, Jr., on brief for petitioner.
Zoe Heller, Trial Attorney, Office of Immigration Litigation,
Tony West, Assistant Attorney General, United States Department of
Justice Civil Division, and Lyle D. Jentzer, Senior Litigation
Counsel, Office of Immigration Litigation, on brief for respondent.
December 29, 2011
STAHL, Circuit Judge. Petitioner Matilde Recinos-
Castillo (Recinos) appeals the denial of his petition for asylum
and withholding of removal by the Board of Immigration Appeals
(BIA). Finding that substantial evidence supported the
determination that he has failed to demonstrate a nexus to a
statutorily protected ground, we deny the petition for review.
I. Facts and Background
Recinos, a native and citizen of Guatemala, entered the
United States without inspection in 1992, and in 1993 filed an
asylum application with the Immigration and Naturalization Service,
now a part of the Department of Homeland Security (DHS). Recinos
alleged that if he returned to Guatemala, he would be killed by
communist guerrillas who had previously threatened him and who had
killed people who supported the civil patrol, of which Recinos had
been a member. DHS referred the matter to the immigration court
for adjudication.
In 2007, Recinos received a notice to appear before the
immigration court to defend against removal proceedings. Recinos,
through counsel, conceded removability but renewed his request for
asylum and also requested withholding of removal, relief under the
Convention Against Torture (CAT), or alternatively, voluntary
departure. In July 2009, Recinos appeared before the immigration
judge (IJ) and testified in support of his asylum application.
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Recinos, who was born on March 14, 1965, testified that
he had lived in Huehuetenango, Guatemala with his family until they
moved to Playa Grande, Guatemala when he was eight. During
Guatemala's civil war with communist guerrillas, Recinos, his
father and two of his brothers served as members of the civil
patrol, an extension of the military. In 1989, while serving in
the civil patrol, one of his brothers was ambushed and killed by
the guerrillas. Recinos testified that, after his brother's death,
he feared for his life because other members of the civil patrol
had told him that guerrillas had asked about him. Six months after
his brother's death, Recinos moved back to Huehuetenango, where he
remained until he left Guatemala for the United States. Recinos's
father and brother continued to live in Playa Grande without
incident at least until the time of Recinos's testimony in 2009.
However, Recinos testified that he feared returning to Guatemala
even though the civil war is over, because he understood that the
guerrillas had become gang members, and he had recently heard that
former members of the civil patrol had been killed by gang members.
The IJ issued an oral decision, finding Recinos credible
but denying his petitions for asylum, withholding of removal and
relief under the CAT.1 The IJ found that Recinos had not been a
victim of past persecution, as any confrontation he experienced
with the guerrillas was a result of his duties as a member of the
1
The IJ granted Recinos's request for voluntary departure.
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civil patrol and that he presented no evidence that the guerrillas
had personally targeted him. The IJ noted that when Recinos left
for Huehuetenango, no guerrillas came looking for him and that his
father and brother, also former members of the civil patrol, had
remained safely in Playa Grande. The IJ found that there was not
sufficient evidence to support the contention that former guerillas
had become gang members, nor that they might be seeking to harm
Recinos. Thus, the IJ found that Recinos had not demonstrated a
well-founded fear of future persecution or a nexus between his fear
and a statutorily protected ground. Recinos appealed the IJ's
denial to the BIA.
The BIA affirmed the IJ's decision, finding that Recinos
had failed to establish a nexus to a protected ground based on his
membership in the civil patrol or his brother's death. The BIA
further found that Recinos had produced no evidence to support any
fear of future persecution, and that any fear he did have was of a
general state of lawlessness in Guatemala, for which asylum relief
is not available. Finding that Recinos did not meet the standards
for asylum, the BIA found that he therefore did not meet the more
stringent requirements for withholding of removal,2 but granted him
2
Recinos did not appeal the IJ's decision denying relief
under the CAT, and the BIA thus considered the claim abandoned.
Recinos did not address his CAT claim in his brief, and we do not
consider it here.
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the right to voluntarily depart from the United States. Recinos
timely petitioned for review.
II. Discussion
We review the BIA's denial of an asylum petition to
determine whether the decision is supported by substantial
evidence. Castañeda-Castillo v. Holder, 638 F.3d 354, 362 (1st
Cir. 2011). When the BIA "adopts the IJ's opinion and discusses
some of the bases for the IJ's decision," we have authority to
review both decisions, Vallejo Piedrahita v. Mukasey, 524 F.3d
142, 144 (1st Cir. 2008), but "the administrative findings of fact
are conclusive unless any reasonable adjudicator would be compelled
to conclude to the contrary," 8 U.S.C. § 1252(b)(4)(B); see also
Castañeda-Castillo, 638 F.3d at 362. We review legal
determinations de novo, giving deference to the BIA's
interpretations of the underlying statutes. Castañeda-Castillo,
638 F.3d at 362.
In order to be eligible for asylum, an applicant has the
burden to show that he is a refugee, 8 U.S.C. § 1158(b)(1)(A)-(B);
Nako v. Holder, 611 F.3d 45, 48 (1st Cir. 2010), a status that can
be established by demonstrating that one has either experienced
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, 8 U.S.C.
§ 1101(a)(42); Castañeda-Castillo, 638 F.3d at 362.
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Although Recinos must demonstrate that he either
experienced past persecution or that he has a well-founded fear of
future persecution in order to be eligible for asylum, we decide
his case based on an examination of whether substantial evidence
supported the conclusion that he failed to demonstrate a nexus
between his experience and a statutorily protected ground.
Recinos claims that he experienced past persecution on
account of his status as a civil patrol member. However, "fears
. . . arising from employment in the military [or] from general
conditions of violence and civil unrest" ordinarily will not
support a claim of persecution. Mediouni v. INS, 314 F.3d 24, 27
(1st Cir. 2002) (internal quotation marks omitted). Both the IJ
and the BIA found that any danger Recinos faced due to conflict
with the guerrillas arose out of his duties as a member of the
civil patrol; these "dangers faced by policemen3 as a result of
that status alone are not ones faced on account of race, religion,
nationality, membership in a particular social group, or political
opinion," and therefore do not render an applicant eligible for
asylum. Matter of Fuentes, 19 I. & N. Dec. 658, 661 (B.I.A. 1988).
Recinos argues that the BIA erred by applying Fuentes as
a per se bar to asylum eligibility, as we rejected such an approach
in Castañeda-Castillo, which was handed down after the BIA's
3
We consider serving as a member of the civil patrol to be
equivalent to serving in the military or as a police officer.
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decision in Recinos's case. See Castañeda-Castillo, 638 F.3d at
365 ("Fuentes does not establish a per se bar to consideration of
attacks that occurred while the respondent happened to have been on
active duty, where the attacks were not directly related to that
fact."). However, in Castañeda-Castillo, the persecution that
Castañeda and his family experienced was "not, as in Fuentes, tied
to whoever happened to be filling the role of police officer or
embassy guard or member of the military, but w[as] directed at
Castañeda and his family personally."4 Id. In Castañeda-Castillo,
we distinguished persecution that targeted an applicant personally
"even if originating out of actions undertaken" while serving in a
law-enforcement capacity from "dangers that are directed at the
role one occupies," thus leaving the core of Fuentes untouched:
dangers faced while fulfilling one's duties as a law enforcer,
without anything more, may not give rise to an asylum claim. Id.
at 365-66.
4
The facts of Castañeda-Castillo are readily distinguishable
from those here. There, the applicant was a military officer
stationed at a location near an opposition-group stronghold where
the military massacred dozens of civilians, although Castañeda had
nothing to do with the massacre. Later, he testified before the
Peruvian senate regarding the massacre, which was reported in
Peruvian news media. Thereafter, his name became associated with
the massacre by the opposition group, which repeatedly harassed and
attacked him and his family. Castañeda-Castillo, 638 F.3d at
357-58. These facts are in stark contrast to the vague and sparse
account Recinos has provided, which fails to show any evidence of
personal targeting.
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Here, the IJ correctly found that Recinos had failed to
provide any evidence that the guerrillas had personally targeted
him and was also correct in finding that any danger he faced arose
out of his duties as a member of the civil patrol. Thus, the
general rule in Fuentes is still applicable to Recinos, and he may
not use his membership in the civil patrol to demonstrate a nexus
to a statutorily protected ground for asylum. Fuentes, 19 I. & N.
Dec. at 661.
Fuentes did leave open the possibility that a status as
a former civil patrol member, which is "an immutable
characteristic, as it is beyond the capacity of the [applicant] to
change," could potentially give rise to asylum eligibility. Id. at
662 ("It is possible that mistreatment occurring because of such a
status in appropriate circumstances could be found to be
persecution on account of political opinion or membership in a
particular social group."). This carve-out is available "where
hostilities have ceased" and the applicant experiences "continued,
off-the-job persecution directed at the officer personally," which
"is decidedly not part of the job." Castañeda-Castillo, 638 F.3d
at 364 (citing Fuentes, 19 I. & N. Dec. at 661-62). Recinos,
however, has not had any interaction with the guerrillas since the
hostilities in Guatemala ceased, and the IJ found that he had not
presented sufficient evidence to support the contention that former
guerrillas are now gang members who are harming former civil patrol
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members. As we have said, Recinos's father and brother, both
former civil patrol members, have continued to lived safely in
Playa Grande, Guatemala. Cf. Aguilar-Solis v. INS, 168 F.3d 565,
573 (1st Cir. 1999) ("Without some explanation, the fact that close
relatives continue to live peacefully in the alien's homeland
undercuts the alien's claim that persecution awaits his return.").
Any fear Recinos has of returning to Guatemala is not of
persecution on account of a statutorily protected ground, but is
instead of a general state of lawlessness in Guatemala, as the BIA
found. Therefore, Recinos's status as a former civil patrol member
does not render him eligible for asylum.
As Recinos cannot establish a nexus between any
persecution he might have experienced and a statutorily protected
ground, we hold that the BIA's denial of his application for asylum
is amply supported by substantial evidence. Because Recinos fails
to meet the requirements for asylum, he cannot meet those for
withholding of removal. Stanciu v. Holder, 659 F.3d 203, 208 (1st
Cir. 2011).
III. Conclusion
We deny the petition for review.
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