Gonzalez v. Holder ( 2011 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 10-1120
SERGIO DAVID GONZÁLEZ,
Petitioner,
v.
ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lipez, Selya and Howard,
Circuit Judges.
Randy Olen and Robert D. Watt, Jr., on brief for petitioner.
Tony West, Assistant Attorney General, Civil Division, Cindy
S. Ferrier, Senior Litigation Counsel, and Joseph A. O'Connell,
Trial Attorney, Office of Immigration Litigation, on brief for
respondent.
August 2, 2011
Per Curiam. The petitioner, Sergio David González, is a
Guatemalan national. He seeks judicial review of a final order of
the Board of Immigration Appeals (BIA), which affirmed an adverse
decision of an immigration judge (IJ). After careful
consideration, we deny the petition.
We draw the facts largely from the petitioner's testimony
in the immigration court. The petitioner worked as a cabinetmaker
in Guatemala City. In the fall of 1989, he agreed to custom-make
cabinets for a customer (referred by a friend). After several
weeks, the customer grew impatient and demanded that the petitioner
complete the job quickly. The petitioner hurried but, when he
delivered the finished cabinets, the customer complained about the
delay and refused to pay. The customer then brandished a revolver
and threatened to kill the petitioner unless he went away.
Although the petitioner departed posthaste, the customer
apparently was not appeased. He repeatedly called the petitioner's
home and made further threats.
Concerned for his safety, the petitioner approached a
friend who worked as a captain in the police force. The captain
told him that the customer belonged to a unit of the Guatemalan
secret police and advised him against taking any action. Soon
afterwards, the petitioner, professing a fear that the disappointed
customer would harm him, left Guatemala.
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The petitioner entered the United States in 1990, by
means of a B-2 visitor's visa. He overstayed the permitted
visitation period without authorization and eventually settled in
Pawtucket, Rhode Island.
In 1994, the petitioner applied for asylum and
withholding of removal. Inexplicably, eleven years passed before
immigration authorities conducted an asylum interview on September
21, 2005. The following month, the Department of Homeland Security
commenced removal proceedings.
At his initial appearance before the IJ in February of
2007, the petitioner conceded removability. Subsequently, he
updated his application for asylum and withholding of removal by
checking the appropriate boxes on a standard form. The petitioner
first mentioned the allegedly menacing customer in this updated
application.
Following a hearing at which the petitioner testified,
the IJ found his testimony not credible and denied relief.1 As to
the asylum claim, the IJ found that the feared harm arose out of a
"personal disagreement" rather than persecution, and that the
petitioner had failed to establish a well-founded fear of future
1
Because the petitioner's claims fail on other grounds, we
need not assess the supportability of the IJ's adverse credibility
determination.
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persecution based on a statutorily protected ground.2 The IJ
jettisoned the claim for withholding of removal on similar
reasoning. And although the petitioner had never raised a claim
for protection under the United Nations Convention Against Torture
(CAT), the IJ preemptively rejected such a claim.
The petitioner appealed unsuccessfully to the BIA. In
affirming, the BIA eschewed reliance on the IJ's adverse
credibility determination and assumed the truth of the raw facts
set out in the petitioner's testimony. But despite that
assumption, the BIA found that the petitioner had failed to satisfy
the criteria for eligibility for asylum. It made a similar
disposition of the withholding of removal claim. Turning to the
nascent CAT claim, the BIA overlooked the procedural default,
independently reviewed the record, and determined that the
petitioner did not satisfy the requirements for CAT protection.
Finally, the BIA considered and rejected a contention that a book
review chronicling the slaying of a Guatemalan bishop, submitted by
the petitioner, lent credence to the petitioner's case.
This timely petition for judicial review followed. In
it, the petitioner argues that the BIA erred in denying his asylum,
2
In general, applications for asylum must be brought within
one year of an alien's entrance into the United States or by April
1, 1998 (whichever date is later). 8 U.S.C. § 1158(a)(2)(B); 8
C.F.R. § 1208.4(a)(2)(ii). Because the petitioner first filed for
asylum in 1994, his asylum request is timely.
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withholding of removal, and CAT claims. He also renews his plaint
concerning the probative value of the book review.
Where, as here, the BIA adopts portions of the IJ's
decision and adds its own gloss, we review the BIA's and IJ's
decisions as a unit. Villa-Londono v. Holder, 600 F.3d 21, 23 (1st
Cir. 2010). We assess an agency's findings of fact under the
familiar substantial evidence rubric, which requires us to uphold
those findings as long as they are "supported by reasonable,
substantial, and probative evidence on the record considered as a
whole." INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (quoting
8 U.S.C. § 1105a(a)(4)). "Absent an error of law, we will reverse
only if the record compels a conclusion contrary to that reached by
the [BIA]." Mariko v. Holder, 632 F.3d 1, 5 (1st Cir. 2011).
Against this backdrop, we start with the asylum claim.
To be eligible for asylum, an alien must establish his status as a
refugee. 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(B)(i); 8 C.F.R.
§ 1208.13(a). A refugee is a person who is unwilling or unable to
repatriate due to a well-founded fear of future persecution on
account of one of five statutorily protected grounds: "race,
religion, nationality, membership in a particular social group, or
political opinion." Morgan v. Holder, 634 F.3d 53, 57 (1st Cir.
2011) (quoting 8 U.S.C. § 1101(a)(42)(A)). A showing of past
persecution creates a rebuttable presumption that an alien harbors
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a well-founded fear of future persecution. Nikijuluw v. Gonzales,
427 F.3d 115, 120 (1st Cir. 2005).
In the immigration context, "persecution" is a term of
art. To qualify, an alien must show a quantum of harm beyond "mere
discomfiture, unpleasantness, harassment, or unfair treatment."
Id.; see Bocova v. Gonzales, 412 F.3d 257, 263 (1st Cir. 2005).
Furthermore, that harm must be linked in some meaningful way to the
government. Morgan, 634 F.3d at 57.
Measured against these benchmarks, the infirmities in the
petitioner's asylum claim are manifest. First and foremost, he has
failed to hitch his claim to any statutorily protected ground.
While he asserts that he is a member of a particular social group,
he has not made any effort to describe the contours of the social
group in which he asserts membership.
It is clear beyond hope of contradiction that, at a
minimum, social group members "must share a common, immutable
characteristic, either innate or based on past experiences." Faye
v. Holder, 580 F.3d 37, 41 (1st Cir. 2009). The petitioner's
conclusory allegation does not satisfy this requirement, and the
record contains no specifics that might fill the gap.
Consequently, his asylum claim founders. See id. at 42; López de
Hincapie v. Gonzales, 494 F.3d 213, 218-19 (1st Cir. 2007).
There is a second independently sufficient ground that
supports the BIA's denial of asylum: the petitioner has not shown
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a well-founded fear of persecution. A well-founded fear of
persecution "must be both subjectively genuine and objectively
reasonable." Morgan, 634 F.3d at 58. Such a fear is objectively
reasonable only if a reasonable person in the alien's circumstances
would harbor it. Id.; Aguilar-Solis v. INS, 168 F.3d 565, 572 (1st
Cir. 1999). Here, substantial evidence supports the agency's
determination that the petitioner's fear is not objectively
reasonable.
The petitioner alleges that the threats made by his
quondam customer give rise to his fear. The record shows that
these threats occurred over eighteen years before the petitioner's
hearing in the immigration court, and the petitioner has not
proffered any evidence suggesting that his tormentor is still
alive, or still in Guatemala, or still in a position to wreak
vengeance, or still holds a grudge. Eighteen years would be a long
time to brood over a delayed delivery of furniture. Given this
hiatus and the utter lack of any evidence suggesting a current
threat, the agency's conclusion that the petitioner's claimed fear
is objectively unreasonable is supported by substantial evidence.3
See, e.g., Touch v. Holder, 568 F.3d 32, 40-41 (1st Cir. 2009)
(upholding denial of asylum where claimant's fear was based on
3
The fact that the customer has not harmed the petitioner's
siblings, children, or other family members (all of whom still
reside in Guatemala) further belies the reasonableness of the
petitioner's fear. See Bakuaya v. Mukasey, 533 F.3d 39, 41 (1st
Cir. 2008) (per curiam); Aguilar-Solis, 168 F.3d at 573.
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events that occurred seven years prior to BIA's decision); Jiang v.
Gonzales, 474 F.3d 25, 31 (1st Cir. 2007) (similar; five-year
interval); cf. Bonilla-Morales v. Holder, 607 F.3d 1132, 1139-40
(6th Cir. 2010) (denying CAT claim where alien failed to establish
that alleged tormentor was still alive); Chahid Hayek v. Gonzales,
445 F.3d 501, 508-09 (1st Cir. 2006) (per curiam) (finding
petitioner's fear based on events that took place eleven years
earlier insufficient to ground CAT claim).
In an effort to blunt the force of this reasoning, the
petitioner points to the aforementioned book review. This
document, which concerns a different individual in materially
different circumstances, does not change the decisional calculus.
The tale is simply too attenuated to generate an objectively
reasonable fear of persecution on the petitioner's part. See Seng
v. Holder, 584 F.3d 13, 19-20 (1st Cir. 2009) (concluding that
allegations of human rights abuses, without any particularized
connection to the petitioner, are insufficient, in themselves, to
ground a well-founded fear of persecution).
This brings us to the petitioner's quest for withholding
of removal. Eligibility for withholding of removal requires that
an alien satisfy a standard that is similar to, but more stringent
than, the standard for asylum. Villa-Londono, 600 F.3d at 24 n.1;
Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120, 123 (1st Cir. 2005).
The former requires a "clear probability of persecution," whereas
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the latter requires only a well-founded fear of persecution. Ang
v. Gonzales, 430 F.3d 50, 58 (1st Cir. 2005).
The difference in these standards is telling when asylum
and withholding of removal claims are premised on the same nucleus
of operative facts. In that event, the alien's failure to
establish eligibility for asylum on the merits necessarily dooms
his counterpart claim for withholding of removal. Villa-Londono,
600 F.3d at 24 n.1; Rodriguez-Ramirez, 398 F.3d at 123. So it is
here.
Finally, the BIA ruled that even if a CAT claim was
properly in the case, it would fail. We follow the BIA's lead and
assume, for argument's sake, that a CAT claim was seasonably
raised. Even so, there is a threshold problem: the argument that
the petitioner advances in this court rests on a different theory
of CAT protection than the argument that he made to the BIA, where
he argued that the police captain's admonition to him showed that
the Guatemalan government acquiesced in violence by the secret
police. Here, by contrast, the petitioner for the first time ties
Guatemalan secret police activity to gang violence. The
petitioner's failure to advance this theory before the BIA is
fatal. See Makhoul v. Ashcroft, 387 F.3d 75, 80 (1st Cir. 2004)
(explaining that "theories not advanced before the BIA may not be
surfaced for the first time in a petition for judicial review of
the BIA's final order").
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In all events, the petitioner has not carried his
evidentiary burden with respect to the CAT claim. To establish
eligibility for CAT protection, an alien must show that it is "more
likely than not" that he would be tortured if removed to his
homeland. 8 C.F.R. § 1208.16(c)(2). For this purpose, "torture"
is an intentional act that inflicts severe physical or mental pain
or suffering upon a person. Id. § 208.18(a)(1). The torture must
be "inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an
official capacity." Chhay v. Mukasey, 540 F.3d 1, 7 (1st Cir.
2008) (quoting 8 C.F.R. § 208.18(a)(1)).
Given this standard, the petitioner's CAT claim cannot
survive scrutiny. It rests on sheer speculation; he has not made
a showing that he will, more likely than not, be targeted and
tortured if he returns to Guatemala. The possibility of harm at
the hands of the secret police is, for the reasons discussed above,
pure speculation. And the mere possibility that he will be exposed
to random violence is not enough. See Amouri v. Holder, 572 F.3d
29, 35 (1st Cir. 2009); López de Hincapie, 494 F.3d at 221.
We need go no further. For the reasons elucidated above,
the petition for judicial review is denied.
So Ordered.
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