Urgilez Mendez v. Sessions , 910 F.3d 566 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 18-1314
JAIME EDUARDO URGILEZ MENDEZ,
Petitioner,
v.
MATTHEW G. WHITAKER,
ACTING ATTORNEY GENERAL,*
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Barron and Selya, Circuit Judges,
and Katzmann, Judge.**
Glenn L. Formica, Elyssa N. Williams, and Formica Williams,
P.C. on brief for petitioner.
Chad A. Readler, Acting Assistant Attorney General, Civil
Division, Keith I. McManus, Assistant Director, Office of
Immigration Litigation, and Rosanne M. Perry, Trial Attorney,
Office of Immigration Litigation, on brief for respondent.
* Pursuant to Fed. R. App. P. 43(c)(2), Acting Attorney
General Matthew G. Whitaker has been substituted for former
Attorney General Jefferson B. Sessions, III as the respondent.
**Of the United States Court of International Trade, sitting
by designation.
December 11, 2018
SELYA, Circuit Judge. The petitioner, Jaime Eduardo
Urgilez Mendez, is an Ecuadorian national. He seeks judicial
review of an order of the Board of Immigration Appeals (BIA)
dismissing his application for asylum.1 After careful
consideration, we deny his petition.
The relevant facts are straightforward. On April 19,
2013, the petitioner entered the United States illegally at Laredo,
Texas. In short order, the Department of Homeland Security
initiated removal proceedings against him. The petitioner
conceded removability and applied for asylum. He premised his
asylum application on a claim that he had been persecuted in the
past (and, thus, feared future persecution) by gang members on
account of his political opinion and/or membership in a particular
social group.
At a hearing held before an immigration judge (IJ) on
April 12, 2017, the petitioner testified that while in Ecuador, he
had surreptitiously gone to the police to report gang activity in
his town. Specifically, he told the police that gang members were
extorting money from his family and other community members. The
record contains nothing that would indicate that either the
1 The petitioner also unsuccessfully applied for withholding
of removal and protection under the United Nations Convention
Against Torture. In his petition for judicial review, however, he
challenges only the dismissal of his asylum application.
Consequently, we make no further reference to the other forms of
relief that the petitioner originally sought.
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petitioner's views about gang activity or his role as an informant
were known outside of official circles. By the same token, the
record contains no hint that the petitioner voiced his accusations
publicly.
Sometime in 2004 — the record is tenebrous as to how
much time elapsed after the petitioner's private conversations
with the police — the petitioner was stabbed by a gang member known
as "Shaggy." His injuries required significant medical treatment,
and the attack left the petitioner emotionally traumatized. When
asked what prompted the assault, the petitioner expressed
uncertainty. He eventually speculated that "maybe it could have
been because I had gone to the police." And even though he had
approached the police in secret, he ruminated that "maybe [Shaggy]
knew." This suspicion apparently derived from the petitioner's
unsubstantiated belief that "the police and the gangs work
together."
The petitioner related that, subsequent to the stabbing
incident, he was interviewed by a local prosecutor. To his
knowledge, though, no action was taken against Shaggy. Once again,
the record contains nothing to indicate that either the fact of
the petitioner's meeting with the prosecutor or the contents of
their discussion was known outside the prosecutor's office.
This was not the end of the matter. The petitioner
asserted that Shaggy continued to threaten him by leaving notes
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and spray-painting messages on his house. But no further
confrontation occurred until 2008, when the petitioner was again
attacked by unidentified persons, whom he suspected to be gang
members. This attack left him with a scar on his face. Asked to
explain why he had been attacked, the petitioner was unable to
offer any explanation.
At the conclusion of the hearing, the IJ expressed grave
reservations about the petitioner's credibility but nonetheless
assumed that his testimony was credible. Even on this arguendo
assumption, the IJ rejected the petitioner's request for asylum.
Critically, the IJ determined that the petitioner had failed to
establish a nexus between the harm that he described and any
statutorily protected ground for asylum status. In the IJ's view,
the violence that the petitioner experienced was likely the
consequence of personal retaliation or retribution.
The petitioner appealed, but the BIA upheld the IJ's
findings. In its decision, the BIA pointed out that the petitioner
had shifted gears and had proffered a new definition of the social
group to which he belonged: state witnesses against criminals in
Ecuador. The BIA noted that it "generally does not consider new
definitions proposed for the first time on appeal." Here, however,
the BIA opted to consider the petitioner's new definition, but
still found his asylum claim wanting on lack-of-nexus grounds.
This timely petition for judicial review followed.
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Although judicial review in immigration cases generally
focuses on the final decision of the BIA, a different rule applies
when the BIA embraces the IJ's decision but adds its own gloss.
In such circumstances, judicial review focuses on the two decisions
as a unit. See Perez-Rabanales v. Sessions, 881 F.3d 61, 65 (1st
Cir. 2018). This is such a case.
Judicial review of the denial of asylum is deferential.
See 8 U.S.C. § 1252(b)(4)(B). In conducting this tamisage, we
examine factbound challenges only to ensure that the agency's
factual findings are supported by substantial evidence in the
administrative record as a whole. See INS v. Elias-Zacarias, 502
U.S. 478, 481 (1992); Makhoul v. Ashcroft, 387 F.3d 75, 79 (1st
Cir. 2004). This agency-friendly standard requires us to accept
the agency's findings "unless the record is such as would compel
a reasonable factfinder to reach a contrary determination."
Mendez-Barrera v. Holder, 602 F.3d 21, 24 (1st Cir. 2010). Put
another way, the denial of asylum must be affirmed unless the
administrative record "unequivocally indicates error." Makhoul,
387 F.3d at 79 (citing Elias-Zacarias, 502 U.S. at 481 & n.1).
Against this backdrop, we turn to the particulars of the
case at hand. To begin, an asylum-seeker must establish that he
is a refugee. See 8 U.S.C. § 1158(b)(1). A refugee is someone
who cannot or will not return to his homeland "because of
persecution or a well-founded fear of persecution on account of
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race, religion, nationality, membership in a particular social
group, or political opinion." Id. § 1101(a)(42)(A). A credible
showing of past persecution creates a rebuttable presumption that
the asylum-seeker has a well-founded fear of future persecution.
See Mendez-Barrera, 602 F.3d at 25.
In this context, "[p]ersecution is a protean term, not
defined by statute." Lopez de Hincapie v. Gonzales, 494 F.3d 213,
217 (1st Cir. 2007). Nevertheless, our case law makes manifest
that there is a floor: persecution requires something "more than
mere discomfiture, unpleasantness, harassment, or unfair
treatment." Mendez-Barrera, 602 F.3d at 25 (quoting Nikijuluw v.
Gonzales, 427 F.3d 115, 120 (1st Cir. 2005)). For present
purposes, we assume that the type and quantum of harm described by
the petitioner — a stabbing that resulted in substantial injury
and medical treatment — was sufficient to cross this threshold.
A finding that the petitioner suffered a level of harm
sufficient to constitute persecution does not end the asylum
inquiry. To gain asylum, the petitioner must also establish that
the harm was inflicted "on account of" one or more of the five
statutorily enumerated grounds: "race, religion, nationality,
membership in a particular social group, or political opinion." 8
U.S.C. § 1101(a)(42)(A). This "on account of" element is "commonly
referred to as the nexus requirement." Alvizures-Gomes v. Lynch,
830 F.3d 49, 52-53 (1st Cir. 2016). To satisfy it, the petitioner
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— who bears the burden of proof — must show by probative evidence,
see Lopez de Hincapie, 494 F.3d at 218, that the enumerated ground
on which his asylum application hinges was "at least one central
reason" for the harm that he endured, 8 U.S.C. § 1158(b)(1)(B)(i).
The Supreme Court has emphasized that proving the required nexus
is "critical" to an asylum-seeker's success.2 Elias-Zacarias, 502
U.S. at 483.
The petitioner first tries to superimpose his asylum
claim onto this framework by alleging past persecution and a well-
founded fear of future persecution based on political opinion
(specifically, his imputed political opinion in "opposition to
lawbreakers"). In his view, reporting gang activity to local
authorities amounted to an expression of a protected political
opinion against lawbreakers. This boils down to a suggestion that
by being an informant, he necessarily expressed a political
opinion. Both the IJ and the BIA rejected this suggestion. So do
we.
2
There is, of course, a further requirement for asylum: the
alleged persecution not only must be causally connected to a
statutorily enumerated ground but also must be "the direct result
of government action, government-supported action, or government's
unwillingness or inability to control private conduct."
Nikijuluw, 427 F.3d at 121. Because the petitioner has failed to
satisfy the nexus requirement, see text infra, it is unnecessary
for us to consider whether he has satisfied the "government action"
requirement.
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The petitioner's thesis suffers from a series of related
flaws: his reports to the authorities were made in secret, his
role as an informant was never publicly disclosed, and nothing in
the record indicates that he divulged information to the
authorities in order to express a political opinion. To impute a
political opinion premised on an individual's holding of that
opinion, we have required, at a minimum, "evidence that the would-
be persecutors knew of the [political] beliefs and targeted the
belief holder for that reason." Mendez-Barrera, 602 F.3d at 27
(emphasis in original). Here, no evidence in the record supports
— let alone compels — a reasonable inference that the petitioner's
private conversations with the authorities were publicly
disseminated, "leaked," or otherwise made known to Shaggy.
Another point is worth making. "Because people report
criminal conduct to law enforcement for various reasons," we have
declined to impute a political opinion based on a statement to the
police without some evidence that the statement was made to express
a political opinion. Amilcar-Orellana v. Mukasey, 551 F.3d 86, 91
(1st Cir. 2008). There is no such evidence here: the record
indicates that the petitioner went to the police to stop gang
members from extorting money from his family and his neighbors,
not for any other purpose.
This ends this aspect of the matter. Given the porous
foundation for the petitioner's "political opinion" claim, it is
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unsurprising that the IJ and the BIA determined that the petitioner
failed to carry his burden of proving the required nexus. On this
record, the petitioner's unsupported speculation that Shaggy
targeted him because of his political opinion is entitled to little
weight.3 After all, divulging information in private is not a
typical way in which to make a public expression of a political
opinion. See Amilcar-Orellana, 551 F.3d at 91.
The petitioner has a fallback argument. He alleges past
persecution based on his membership in a particular social group:
those who act as state witnesses against criminals in Ecuador.
This argument, too, lacks force.
To establish a right to asylum on the basis of membership
in a social group, an alien must demonstrate that the group was
socially visible; that its members share the same immutable
characteristic; and that the group be sufficiently particular.
See Perez-Rabanales, 881 F.3d at 65; Alvizures-Gomes, 830 F.3d at
54; Scatambuli v. Holder, 558 F.3d 53, 59 (1st Cir. 2009). In the
BIA's estimation, the petitioner's claim ran aground due to a lack
of visibility. We agree.
3 The petitioner's argument is all the more speculative
because — as the BIA indicated — the record is consistent with a
conclusion that the stabbing was a personal attack on the
petitioner. Our cases make pellucid that immigration laws are
"not intended to protect aliens from violence based on personal
animosity." Romilus v. Ashcroft, 385 F.3d 1, 6 (1st Cir. 2004).
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As said, the petitioner claims membership in a social
group that he describes as individuals who are state witnesses
against criminals in Ecuador. The BIA found, inter alia, that the
claim foundered because the petitioner's membership was "based on
having secretly informed police of gang activities in his home
country." As such, the claim fell "closely" in line with claims
previously rejected under the BIA's precedents, see, e.g., In re
C-A-, 23 I. & N. Dec. 951 (B.I.A. 2006), "the methodology of which
was affirmed in Scatambuli."
To put the BIA's rationale into perspective, we briefly
rehearse our decision in Scatambuli. There, we held that the
visibility of particular individuals associated with a putative
social group is germane to the social group analysis. See
Scatambuli, 558 F.3d at 59-60. A member satisfies this standard
only if he possesses characteristics "visible and recognizable by
others in the [native] country." Id. at 59 (alterations in
original) (quoting In re C-A-, 23 I. & N. Dec. at 960). Of
particular pertinence, Scatambuli cited approvingly the BIA's
observation that, with respect to confidential informants, "the
very nature of the conduct at issue is such that it is generally
out of the public view." Id. (quoting In re C-A-, 23 I. & N. Dec.
at 960). Thus, "visibility is limited to those informants who are
discovered." Id. (quoting In re C-A-, 23 I. & N. Dec. at 960).
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The BIA's reliance on Scatambuli strikes us as
appropriate. In Scatambuli, we upheld the denial of asylum because
substantial evidence supported its finding that "the universe of
those who knew of the petitioners' identity as informants was quite
small." Id. at 60. So it is here. The BIA determined that the
petitioner, a self-described secret informant who adduced no
evidence that his association with the putative social group was
ever disclosed, could not have been perceived within the community
as belonging to that group. Since the record does not compel a
contrary conclusion, Scatambuli controls — and the rule of that
case requires us to uphold the BIA's determination.
In an effort to blunt the force of this reasoning, the
petitioner contends that his case is distinguishable from
Scatambuli because the aliens there were informants to United
States law enforcement whereas the petitioner was an informant to
local law enforcement in his homeland. This is a distinction
without a difference. Regardless of the sovereign to which an
informant's information was divulged, the question is whether the
informant lacked visibility. See id. Here, the BIA answered this
question in the affirmative, and the record does not "compel a
reasonable factfinder to reach a contrary determination." Mendez-
Barrera, 602 F.3d at 24. No more is exigible to satisfy the
substantial evidence test.
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We need go no further. For the reasons elucidated above,
the petition for judicial review is
Denied.
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