Rodriguez v. Lynch ( 2016 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 15-2018
JOSE AMADO RODRIGUEZ,
Petitioner,
v.
LORETTA E. LYNCH, ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Howard, Chief Judge,
Torruella and Stahl, Circuit Judges.
Kevin MacMurray and MacMurray & Associates for petitioner.
Thankful T. Vanderstar, Attorney, Office of Immigration
Litigation, U.S. Department of Justice, Benjamin C. Mizer,
Principal Deputy, Assistant Attorney General, and Linda S.
Wernery, Assistant Director, for respondent.
July 15, 2016
STAHL, Circuit Judge. The petitioner in this case is
a Salvadoran citizen seeking asylum and withholding of removal
based on his alleged past persecution and fear of future
persecution. The immigration judge and Board of Immigration
Appeals denied his application and ordered him removed to El
Salvador. Because the record does not compel a contrary
conclusion, we deny the petition for review.
I. Facts & Background
On February 20, 2010, Jose Amado Rodriguez entered the
United States without a valid entry document. A native and
citizen of El Salvador, Rodriguez was charged by the Department
of Homeland Security with being a removable alien, which he
conceded. Rodriguez applied for asylum, withholding of removal,
and protection under the Convention Against Torture ("CAT").
Appearing before an immigration judge ("IJ"),
Rodriguez testified that he first came to the United States in
2001 and had Temporary Protected Status until 2007, when he
returned to El Salvador to take care of his ill mother. Back in
El Salvador, he joined the National Republican Alliance Party
("ARENA") and worked as a driver and counselor. In this role,
Rodriguez claims to have had two troubling encounters with
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members of an opposing party, the Farabundo Martí National
Liberation Front ("FMLN").
As to the first encounter, Rodriguez testified that he
was driving some people to a meeting when seven or eight
individuals wearing FMLN hats and t-shirts blocked his truck
with their truck and "start[ed] throwing stones at [him] and
threatening [him]." The FMLN members did not get out of their
truck, but allegedly said if they saw him again they would push
his truck "down one of the mountains" with him in it. According
to Rodriguez, the stones thrown by the FMLN members hit his
truck, but none of its occupants.
In the second encounter, eight to ten months later,
Rodriguez said that his truck was vandalized while it was parked
in front of city hall and that the "30 to 40" people who did so
said, "if we see you again, next time you [will] pay with your
life." Rodriguez said he knew it was the FMLN because they left
an FMLN flag.
After Rodriguez reported these incidents to the
mayor, who was a member of the ARENA party, the mayor allegedly
told Rodriguez that "it [would be] better if [Rodriguez] didn't
do a thing . . . [and] went to another country, because [his]
life was in danger." Rodriguez did not notify the police,
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testifying that he did not think they would help him because
they are "very corrupt[]." Rodriguez left El Salvador about
three days later. He testified that he believed that his life
would be in danger if he returned home.
On December 4, 2013, the IJ issued an oral decision
finding Rodriguez removable as charged; denying his request for
asylum under section 208 of the Immigration and Nationality Act
("the Act"), 8 U.S.C. § 1158, withholding of removal under
section 241(b)(3) of the Act, 8 U.S.C. § 1231(b)(3), and
protection under the CAT, 8 C.F.R. § 1208.16; and ordering him
removed to El Salvador. Rodriguez appealed the decision to the
Board of Immigration Appeals ("the Board"), which agreed with
the IJ's determinations and dismissed the appeal. This petition
for review followed.
II. Analysis
To qualify for asylum, an alien must establish that he
is a "refugee." See 8 U.S.C. § 1158(b)(1); Guaman-Loja v.
Holder, 707 F.3d 119, 122 (1st Cir. 2013). A "refugee" is an
alien who is unwilling or unable to return to his home country
"because of persecution or a well-founded fear of persecution on
account of race, religion, nationality, membership in a
particular social group, or political opinion." 8 U.S.C.
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§ 1101(a)(42)(A). Thus, the alien bears the burden of proving
past persecution or a well-founded fear of future persecution.
See 8 C.F.R. § 1208.13(a).1
Where the Board agrees with the IJ's decision while
adding its own reasons, we review both decisions. Sunarto Ang
v. Holder, 723 F.3d 6, 10 (1st Cir. 2013). This Court reviews
the IJ's findings of fact for substantial evidence and may
reverse such findings "only if 'the evidence is such as would
compel a reasonable factfinder to reach a contrary conclusion.'"
McKenzie-Francisco v. Holder, 662 F.3d 584, 586 (1st Cir. 2011)
(quoting Seng v. Holder, 584 F.3d 13, 17 (1st Cir. 2009)).
A. Past Persecution
Rodriguez first contends that the record compels the
conclusion that he suffered harm rising to the level of
persecution that the government was unable or unwilling to
control. This contention fails twice over.
First, past persecution must exceed "unpleasantness,
harassment, and even basic suffering." Sinurat v. Mukasey, 537
F.3d 59, 61 (1st Cir. 2008). To constitute persecution, the
harm experienced "must have reached a fairly high threshold of
1
Proving past persecution gives rise to a rebuttable
presumption of future persecution. Guaman-Loja, 707 F.3d at 122.
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seriousness, as well as some regularity and frequency." Alibeaj
v. Gonzales, 469 F.3d 188, 191 (1st Cir. 2006).
Rodriguez experienced two incidents, almost a year
apart, falling far short of the severe, systematic type of harm
that this Court has found to constitute persecution. See
Anacassus v. Holder, 602 F.3d 14, 19-20 (1st Cir. 2010). While
the alleged threats made on those two occasions are "indubitably
unsettling, credible verbal death threats may fall within the
meaning of persecution[] . . . only when the threats are so
menacing as to cause significant actual suffering or harm."
Lobo v. Holder, 684 F.3d 11, 18 (1st Cir. 2012) (internal
quotation marks omitted). Rodriguez offered no testimony
regarding the immediate impact, if any, that these threats had
on him and provided little indication that those who made the
threats had any intention or capability of carrying them out.
Second, petitioners must demonstrate that past
persecution is "the direct result of government action,
government-supported action, or government . . . unwillingness
or inability to control private conduct." Guaman-Loja, 707 F.3d
at 123. A petitioner's mere speculation that the police will
not provide protection if contacted is not sufficient. Sunarto
Ang, 723 F.3d at 11.
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Here, Rodriguez did not notify the police about his
encounters with the FMLN, stating that he did not believe that
they would help him. And while Rodriguez relies upon the
mayor's alleged advice,2 his brief testimony on this issue does
not compel the conclusion that the government of El Salvador
would have been unable or unwilling to protect him.
B. Future Persecution
Rodriguez also argues that the record reflects his
well-founded fear of future persecution. To make this showing
independent of past persecution, he must prove that his fear is
subjectively genuine and objectively reasonable. Silva v.
Ashcroft, 394 F.3d 1, 4 (1st Cir. 2005).
The IJ held that Rodriguez had not established an
objectively reasonable fear of future persecution,3 basing her
findings on a 2012 Department of State Country Report, which
2
Rodriguez submitted a letter from the mayor to support his
claim, but this letter curiously makes no mention of the alleged
problems that Rodriguez experienced with the FMLN. Although the
IJ "ha[d] some concerns regarding [Rodriguez's] credibility,"
she "assume[d] for the sake of th[e] decision that [he] was a
credible witness," and so do we.
3
When Rodriguez was interviewed shortly after entry, he
stated that he had no fear of returning to El Salvador and had
come to the United States to work and live in Texas.
Nonetheless, the IJ and the Board accepted Rodriguez's claim of
subjective fear, and, again, so do we.
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stated that "independent observer groups reported [that] the
elections [in March 2009 and March 2012] were free and clear
with few irregularities . . . [and that] there were no
politically motivated killings or disappearances."
Rather than grounding his response in the record
below, however, Rodriguez attempts to rely on evidence that was
not before the IJ or the Board. We are limited in our review to
the record upon which the appealed order of removal was based.
See 8 U.S.C. § 1252(b)(4)(A); Shah v. Holder, 758 F.3d 32, 37
(1st Cir. 2014). Thus, substantial evidence supports the
agency's decision, and the record does not compel the conclusion
that Rodriguez established an objectively reasonable fear of
future persecution in El Salvador.
III. Conclusion
Because Rodriguez failed to prove his eligibility for
asylum, he also failed to meet the higher burden required to
establish eligibility for withholding of removal. See Guaman-
Loja, 707 F.3d at 124. In addition, Rodriguez makes no argument
on appeal regarding his claim for CAT protection, and therefore
that issue is waived. See Vasili v. Holder, 732 F.3d 83, 92
(1st Cir. 2013). For these reasons, the petition for review is
DENIED.
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