De Leon v. Gonzales , 153 F. App'x 3 ( 2005 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-2229
ELIDIO MARIO DE LEON; INGRID K. DE LEON,
Petitioners,
v.
ALBERTO R. GONZALES, ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Siler,* Senior Circuit Judge,
and Saris,** District Judge.
Illana Etkin Greenstein, with whom Harvey Kaplan, Maureen
O’Sullivan, and Jeremiah Friedman, Kaplan, O’Sullivan & Friedman,
were on brief for petitioners.
Peter D. Keisler, Assistant Attorney General, Civil Division,
with whom Terri J. Scadron, Assistant Director, Office of
Immigration Litigation, and Anthony W. Norwood, Counsel to the
Assistant Attorney General, were on brief for respondent.
November 3, 2005
*
Of the Sixth Circuit Court of Appeals, sitting by
designation.
**
Of the District of Massachusetts, sitting by designation.
SILER, Senior Circuit Judge. Petitioners Elidio De Leon (“De
Leon”) and his wife, Ingrid De Leon, seek review of a final order
of the Board of Immigration Appeals (“BIA”) which affirmed, without
opinion, the immigration judge’s (“IJ”) denial of De Leon’s
applications for asylum, withholding of removal, and protection
under the United Nations Convention Against Torture (“CAT”).1 We
AFFIRM.
I. BACKGROUND
De Leon filed his first asylum application in 1991 and a
second one in 1994. Although De Leon acknowledged that the account
in his 1991 application was different from his testimony before the
IJ, he did not explain why the stories were different.2 In June
2000, the Immigration and Naturalization Service’s3 (“INS”) asylum
office contacted De Leon for an interview in connection with his
1994 asylum application. During the interview, De Leon recounted
that he was drafted into the Guatemalan army in 1989 and trained to
fight and kill guerillas. In his 1994 application, De Leon
declared that he was drafted before he turned sixteen years old
1
Ingrid De Leon is a derivative asylum applicant based on the
claim of her husband. See 8 U.S.C. § 1158(b)(3)(A) (2000).
2
De Leon’s 1991 asylum application was apparently lost. Its
presence or absence is irrelevant, however, because De Leon
conceded that its contents differed from his testimony.
3
In March 2003, “the relevant functions of the Immigration and
Naturalization Service [] were reorganized and transferred into the
new Department of Homeland Security.” Romilus v. Ashcroft, 385
F.3d 1, 2 n.1 (1st Cir. 2004).
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and, while following his superiors’ orders, “persecute[d] and
attack[ed] guerilla strongholds. And in combat [he] might of
killed people but [he] was following orders.” Upon his discharge,
De Leon claimed that the residents of his hometown threatened,
beat, and tortured him and his whole family.
De Leon stated that he deserted the army in 1990 after he was
given a twelve-hour pass to visit his mother. De Leon fled
Guatemala, but the interviewer noted that “[s]ince [De Leon’s]
departure [he] has kept in touch with his mother and other family
members, none of whom have ever been harmed or threatened by
anyone.” Conversely, the 1994 application related that De Leon was
given twenty-four hours to leave Guatemala.
In June 2000, the INS commenced removal proceedings against De
Leon. See 8 U.S.C. § 1182(a)(6)(A)(i) (2000). In the proceedings
before the IJ, De Leon renewed his application for asylum and
applied for withholding of removal and CAT protection. De Leon
testified that, rather than being drafted, the army kidnapped him
when he was sixteen years old. Once in the army, De Leon claimed
he was beaten daily, fed once per day, and a sergeant raped him at
gunpoint. Thereafter, De Leon and other recruits were sent on a
mission to kidnap guerilla sympathizers. De Leon wanted no part in
the plot, so he fled into the jungle. He returned to Guatemala
City and, with assistance from a paid smuggler, went to
Massachusetts to live with his brother.
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The IJ found De Leon removable and denied his applications.
The IJ observed that De Leon gave “several different stories as to
what happened to him during his time in Guatemala and the reasons
why he is or claims to be fearful of returning [there],” his
testimony and his 1994 application were “entirely different,” and
his testimony “was inconsistent in many ways with [his] written
affidavit, which he offered in support of his application.” Thus,
De Leon failed to meet his burden of proof regarding either past
persecution or a well-founded fear of future persecution. Since De
Leon’s asylum application was denied, he necessarily could not meet
the more demanding withholding of removal hurdle or his CAT burden.
The BIA affirmed the IJ’s decision without opinion. See 8
C.F.R. § 1003.1(e)(4). This appeal followed. We have jurisdiction
pursuant to 8 U.S.C. § 1252(a)(1) and 28 U.S.C. § 158.
II. DISCUSSION
Because the BIA summarily affirmed the IJ’s opinion, we review
the IJ’s decision as the final order. See Galicia v. Ashcroft, 396
F.3d 446, 447 (1st Cir. 2005) (citing Albathani v. INS, 318 F.3d
365, 373 (1st Cir. 2003)). The IJ’s findings of fact and
conclusions of law are treated as if they were made by the BIA.
See Keo v. Ashcroft, 341 F.3d 57, 60 (1st Cir. 2003). The IJ’s
decision must be “supported by reasonable, substantial, and
probative evidence on the record considered as a whole.” See Keo,
341 F.3d at 60. “This standard of review is quite deferential[,]”
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Guzman v. INS, 327 F.3d 11, 15 (1st Cir. 2003), and “the IJ’s
determination must stand unless we ‘find that the evidence not only
supports [De Leon’s] conclusion, but compels it.’” Keo, 341 F.3d
at 60 (citations omitted).
De Leon argues that the IJ erred in denying his applications
for asylum and withholding of removal. See 8 C.F.R. § 1208.3(b).
“As a prerequisite to establishing eligibility for asylum, [De
Leon] must establish that he is a refugee, as set forth in . . . 8
U.S.C. § 1158(b).” Samayoa Cabrera v. Ashcroft, 367 F.3d 10, 13
(1st Cir. 2004). To qualify as a refugee, De Leon must
“demonstrat[e] a well-founded fear of future persecution on the
basis of one of five statutory factors: race, religion,
nationality, membership in a particular social group, or political
opinion.” Keo, 341 F.3d at 60. De Leon must prove that his “fear
is both genuine and objectively reasonable” to satisfy this burden.
See id. His “well-founded fear of future persecution” has both
subjective and objective components. Aguilar-Solis v. INS, 168
F.3d 565, 572 (1st Cir. 1999). As for the objective prong, De Leon
“must prove that ‘a reasonable person . . . would fear persecution
on account of’” one of the enumerated factors. See Diab v.
Ashcroft, 397 F.3d 35, 41 (1st Cir. 2005) (citation omitted). As
for the subjective prong, De Leon must prove that his fear is
genuine – “[a] crucial aspect in determining whether an applicant
has a genuine fear is the applicant’s credibility.” Id.-5-
De Leon contends that he suffered past persecution and has a
well-founded fear of future persecution on account of his actual or
imputed political opinion and his membership in a particular social
group. Regarding the former, De Leon fears that the army will
persecute him if he returns to Guatemala because he is a deserter.
Regarding the latter, De Leon claims he is included in a group of
children who have been forcibly recruited into the army.
We refuse to disturb the IJ’s credibility findings because De
Leon has neither established past persecution nor a well-founded
fear of future persecution. When a hearing officer who sees and
hears a witness “makes an adverse credibility determination and
supports it with specific findings, an appellate court ordinarily
should accord it significant respect.” Aguilar-Solis, 168 F.3d at
570. The IJ found that his credibility was so impaired that he
failed to demonstrate any past persecution and he “lacked the
specificity required to establish the requisite nexus between the
[Guatemalan army’s] alleged acts and one of the five statutorily
protected grounds.” Id. His accounts of persecution cannot be
reconciled. The IJ found that De Leon’s 1994 version of events
differed from his testimony and he failed to explain these
discrepancies. He gave markedly conflicting accounts as to how he
entered the army and fled Guatemala. Although he originally
claimed he was drafted, “might of killed people,” and upon his
discharge the townspeople threatened, beat, and tortured him and
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his family, he later claimed that he was kidnapped by the army,
tortured, raped, forced to take part in a kidnap mission, and
escaped from his captors. Further complicating De Leon’s
renditions is his account to the asylum officer that he fled
Guatemala after receiving a twelve-hour pass to visit his mother.
De Leon’s lack of credibility doomed any claim of past
persecution. See Laurent v. Ashcroft, 359 F.3d 59, 64 (1st Cir.
2004). Nor has he made a case for a well-founded fear of future
persecution, since renditions of his past persecution varied
substantially. See Diab, 397 F.3d at 41-42.4
Further, De Leon must “establish that he was persecuted on one
of the five statutory grounds.” See Samayoa Cabrera, 367 F.3d at
13. Although De Leon insists that he will be subjected to
persecution upon his return to Guatemala as a member of a
particular social group, he can neither prove nor establish that he
“belonged to or was affiliated with any organized social group[]”
or that “young men in general have reason to fear persecution in
Guatemala.” See Rodriguez-Ramirez, 398 F.3d 120, 125 n.3 (1st Cir.
4
This court recently observed that “the political situation in
Guatemala has changed dramatically” in recent years. See
Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120, 126 (1st Cir. 2005).
“Peace accords were signed in 1996 between the Guatemalan
government and the insurgent forces, who had rallied collectively
under the banner of the Guatemalan National Revolutionary Unity
(GNRU). These accords put an end to the country’s civil war.” Id.Since De Leon left Guatemala in 1990, the civil war is long over
and he should have no fear of persecution upon his return. See
Guzman, 327 F.3d at 16.
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2005). We likewise reject De Leon’s claim that he will be
persecuted for his desertion from the army because of the IJ’s
adverse credibility finding.
Because De Leon’s evidence does not compel a different
conclusion, we affirm the denial of his asylum application.
Further, “[b]ecause [De Leon] is unable to satisfy the less
stringent standard for asylum, [he] is a fortiori unable to satisfy
the test for withholding of deportation.” Toure v. Ashcroft, 400
F.3d 44, 49 (1st Cir. 2005) (per curiam) (citing Albathani, 318
F.3d at 374).
Additionally, substantial evidence supports the IJ’s finding
that De Leon failed to meet his CAT burden. The IJ’s adverse
credibility determination, which De Leon failed to refute,
undermines his CAT claim; therefore, this claim fails. See Sharari
v. Gonzales, 407 F.3d 467, 475-76 (1st Cir. 2005). De Leon’s
failure to admit any torture until his testimony before the IJ
invalidates and casts serious doubts upon his prior applications.
Also, improved conditions in Guatemala negate any likelihood of
torture upon De Leon’s return. See id.; Rodriguez-Ramirez, 398
F.3d at 125.
We AFFIRM the decision of the BIA.
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