Escobar v. Holder ( 2012 )

United States Court of Appeals
For the First Circuit
No. 11-2086
LUIS G. ESCOBAR,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Boudin and Thompson,
Circuit Judges.
Carlos E. Estrada on brief for petitioner.
Shahrzad Baghai, Office of Immigration Litigation, Civil
Division, Department of Justice, Stuart F. Delery, Acting Assistant
Attorney General, Civil Division, and Terri J. Scadron, Assistant
Director, Office of Immigration Litigation, on brief for
respondent.
October 22, 2012
BOUDIN, Circuit Judge. Luis Escobar, a citizen of
Guatemala, seeks review of a decision by the Board of Immigration
Appeals ("BIA") denying his applications for asylum, statutory
withholding of removal and protection under the Convention Against
Torture. In June 1989 Escobar, then age 18, arrived in the United
States. Four years later, he applied for asylum, asserting that he
had fled his native country due to political persecution after
Guatemalan police had accused him of being a "guerrilla
sympathizer."
In March 2006, after the Department of Homeland Security
began removal proceedings against him, Escobar offered a different
version of his claim in an updated application and in testimony in
the immigration court proceeding. Escobar now says that he left
the country because he feared persecution by guerillas whose
recruitment efforts he had twice resisted. He also described an
incident in which guerrillas allegedly bombed a bus driven by his
father, a second incident in which he and his mother witnessed
guerrilla activity during a bus ride and a subsequent bus ride in
which guerrillas robbed his mother.
On these premises, Escobar argued that he was the victim
of past political persecution and that, if returned to Guatemala,
he would also be subject to persecution on account of "membership
in a particular social group," namely, "the particular social group
of Guatemalan nationals repatriated from the United States." The
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IJ denied relief, finding that Escobar was a "credible witness" but
that the facts did not support his asylum application or other
claims for relief. The BIA affirmed based on the IJ's decision and
Escobar now petitions for review in this court.
This entails review of the IJ's rationale, since the BIA
accepted it without alteration. Seng v. Holder, 584 F.3d 13, 17
(1st Cir. 2009). The IJ's factual findings stand if supported by
substantial evidence, id., while on questions of law we afford
"appropriate deference" but not carte blanche to immigration
authorities. Lobo v. Holder, 684 F.3d 11, 16 (1st Cir. 2012)
(quoting Sok v. Mukasey, 526 F.3d 48, 53 (1st Cir. 2008)). Under
the statute, asylum depends on showing a well-founded fear of
future persecution based on a protected ground. INA §
101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A) (2006); Lobo, 684 F.3d at
16.
The two statutory bases for persecution invoked here are
"membership in a particular social group" and "political opinion."
INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A); see also 8 C.F.R.
§ 1208.13(b)(1)-(2) (2012). Past persecution on a protected ground
gives rise to a "rebuttable presumption that a well-founded fear of
future persecution endures." Guerrero v. Holder, 667 F.3d 74, 77
(1st Cir. 2012); see also 8 C.F.R. § 1208.13(b)(1). The past
persecution on which Escobar principally relies is reflected in two
incidents in which, he says, guerillas attempted to recruit him.
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The first occurred in May 1985 when Escobar was 14 or 15
years old and guerrillas came to his school to gather new recruits.
Escobar's updated application also asserts that in 1988 guerrillas
appeared while he was visiting his grandparents and threatened to
kill him if he refused to join their forces, although Escobar does
not mention this incident in his testimony. In neither case is
there any indication that the guerrillas targeted Escobar because
of his political opinions, real or imputed, so neither incident
suggests past persecution on a protected ground. See Tobon-Marin
v. Mukasey, 512 F.3d 28, 31 (1st Cir. 2008).
Nor do any of the bus incidents support an inference that
Escobar or either parent was persecuted based on their political
opinions. His father was driving a bus that was bombed by
guerrillas in 1980, but nothing indicates that the guerrillas
specifically targeted Escobar's father. He and his mother, while
riding a public bus in 1988, merely witnessed a fight between
guerrillas and the authorities. And on yet another bus ride in
1993, guerrillas robbed his mother and other passengers, but there
is no suggestion that she was singled out.
Escobar's father and mother, like Escobar himself, appear
to have been victims of the "general harm attributable to the
widespread civil strife that plagued Guatemala during that time,"
but the record does not show that they were "persecuted on an
individual basis." Velasquez v. Ashcroft, 342 F.3d 55, 58 (1st
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Cir. 2003). Evidence of "widespread violence . . . affecting all
citizens" is not enough to establish persecution on a protected
ground. Maryam v. Gonzales, 421 F.3d 60, 63 (1st Cir. 2005).
Whatever Escobar's subjective fear of persecution, he has
not shown "an objectively reasonable basis for that fear." Gilca
v. Holder, 680 F.3d 109, 115 (1st Cir. 2012) (quoting Lopez Perez
v. Holder, 587 F.3d 456, 461-62 (1st Cir. 2009)). Nothing in the
events described shows that Escobar or his family were harassed
for their political opinions. Further, the Guatemalan government
and the guerrillas signed a peace agreement in 1996, and the
guerrillas "renounced the use of force to achieve political goals."
INS v. Ventura, 537 U.S. 12, 17 (2002) (per curiam) (quoting State
Department report).
Alternatively, Escobar asserts a "very reasonable
possibility that he will be persecuted in Guatemala based upon his
membership in the particular social group of Guatemalan nationals
repatriated from the United States." His theory appears to be that
Guatemalan gangs will assume that he amassed significant wealth
during his two-decade-long stay in the United States and that he
will be a target of extortion and other criminal activity as a
result of his perceived wealth. He relies on "personal knowledge
of people who have been harmed when they returned to Guatemala from
the United States" and reports from the State Department and human
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rights organizations confirming that violent crime in Guatemala is
widespread.
We rejected such a legal theory in Sicaju-Diaz v. Holder,
663 F.3d 1 (1st Cir. 2011). It is one thing to be targeted for
expropriation (or worse) by the government because of social class,
race or ethnicity; it is quite another for wealthy citizens to be
targeted by criminals merely because they have wealth to steal.
Sicaju-Diaz, dealing directly with Guatemalans at risk of crime
because they were perceived to be wealthy, rejected the view that
this is persecution based on membership in "a social class or
group" within the meaning of the INA. Id. at 4; accord Diaz v.
Holder, 459 Fed. App'x 4, 6 (1st Cir. 2012).
Escobar argues that his "particular social group" of
repatriated Guatemalans is different from the group rejected in
Sicaju-Diaz because wealth is not an immutable characteristic
whereas Guatemalan nationals who have lived in the United States
and are thus perceived as wealthy "cannot change the fact that
they . . . lived in the United States." But being a target for
thieves on account of perceived wealth, whether the perception is
temporary or permanent, is merely a condition of living where crime
is rampant and poorly controlled. The poor, because of their
vulnerability, are also potential targets. Thus, Escobar's gloss
would make most inhabitants of crime-ridden countries members of a
social group thus defined. Sicaju-Diaz, 663 F.3d at 4.
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Statutory withholding of removal under INA § 241(b)(3),
8 U.S.C. § 1231(b)(3), requires an even greater likelihood of
persecution than asylum, Lobo, 684 F.3d at 19-20, so Escobar's
request for statutory withholding necessarily fails. Nor is he
eligible for relief under the Convention Against Torture, as
Escobar has not established that there is any prospect that he will
be "tortured" if returned to Guatemala. 8 C.F.R. § 208.16(c)(2).
There may be "credible reports of torture, abuse, and other
mistreatment" by members of Guatemala's national civilian police,1
but this is a far cry from showing that the individual seeking
asylum is a likely target.
The petition for review is denied.
1
U.S. Dep't of State, Bureau of Democracy, Human Rights, and
Labor, 2010 Human Rights Reports: Guatemala 6 (Apr. 8, 2011). The
State Department country report for the following year makes no
mention at all of government-sanctioned torture in Guatemala. See
U.S. Dep't of State, Bureau of Democracy, Human Rights, and Labor,
2011 Human Rights Reports: Guatemala (May 24, 2012).
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