Guerrero v. Holder , 667 F.3d 74 ( 2012 )

United States Court of Appeals
For the First Circuit
No. 10-2286
JULIO FAUSTINO GUERRERO; ANA VILMA ACEVEDO;
JORGE GUERRERO-ACEVEDO,
Petitioners,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
PETITION FOR REVIEW OF A FINAL ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Lipez and Howard,
Circuit Judges.
Julio A. Vázquez and Vázquez and Shin, LLP, on brief for
petitioners.
Tony West, Assistant Attorney General, Civil Division, Melissa
Neiman-Kelting, Senior Litigation Counsel, Office of Immigration
Litigation and Anthony J. Messuri, Trial Attorney, on brief for
respondent.
January 31, 2012
HOWARD, Circuit Judge. Petitioner Julio Faustino
Guerrero is a Salvadoran national. He seeks review of an order of
the Board of Immigration Appeals ("BIA") approving the denial of
his applications for asylum and withholding of removal. Discerning
no error, we deny the petition.
Guerrero entered the United States in February 1992
without being admitted or paroled. Later that year, he filed an
affirmative asylum application, asserting that he had been
persecuted and had a well-founded fear of future persecution on
account of his political beliefs. Following a long, unexplained
hiatus, federal authorities initiated removal proceedings against
him in March 2007. Guerrero conceded removability but renewed his
request for asylum and withholding of removal.1
The gravamen of the petitioner's claim for relief is
mistreatment suffered at the hands of the Farabundo Martí National
Liberation Front ("FMLN") guerillas, who occupied a base in his
home village throughout much of the more than decade-long
Salvadoran civil war. On approximately three occasions during that
1
The government simultaneously sought removal of the
petitioner's spouse Ana Vilma Acevedo, and his son Jorge
Guerrero-Acevedo, who entered the United States illegally in 2002
and 2006, respectively. Both wife and child are named as
derivative beneficiaries on the petitioner's application. Because
their rights are dependent on those of the petitioner, we discuss
the case as if it involved Guerrero alone. Our decision applies,
of course, to all parties.
-2-
period,2 guerilla members forced him at gunpoint to carry wounded
guerillas to safety; on one of those occasions, the injuries of the
wounded guerilla were such that his intestines hung over Guerrero's
shoulder. The guerillas also thrice conscripted Guerrero to assist
in barricading roads and detonating bombs to ambush government
troops, and occasionally forced him to work in the fields as a
decoy. Additional assistance was often demanded in the form of
food, and Guerrero and his family were forced to go hungry in order
to comply. The guerillas also rounded up Guerrero and the other
villagers at gunpoint and obliged them to attend FMLN political
rallies on roughly ten occasions.
Guerrero opposed the guerillas, who he believed would
"turn El Salvador into another Cuba." Although he never openly
resisted the guerillas for fear of harm, he asserted that it was
well known in his village of only approximately three thousand
inhabitants who supported the guerillas and who did not.
After reviewing the petitioner's testimony and
documentary evidence, the immigration judge ("IJ") found the
petitioner credible but concluded that he had failed to
substantiate a cognizable claim of past or future persecution.
Although the IJ accepted Guerrero's testimony that his political
2
There exist minor discrepancies between the petitioner's
asylum application and hearing testimony regarding the exact dates
and the number of occasions on which these and the other incidents
described herein occurred. In light of the immigration judge's
favorable credibility determination, however, these discrepancies
are immaterial to our analysis.
-3-
opinion was either known or presumed by the guerillas, she
determined that Guerrero had failed to demonstrate a nexus between
that opinion and the mistreatment that he suffered. The IJ further
found that while the events described were "positively frightening
and at times utterly gruesome," they were not sufficiently severe
to rise to the level of persecution. Finally, the IJ concluded
that Guerrero's fear of future persecution, though genuine, was not
objectively reasonable in light of the peace accords signed between
the guerillas and the Salvadoran government in 1991 and the absence
of evidence that any remaining guerillas would continue to harbor
an interest in the petitioner sixteen years after he left El
Salvador. Consequently, the IJ denied petitioner's requests for
asylum and withholding of removal.
On appeal, the BIA affirmed. The agency agreed that the
petitioner had established neither a nexus between the allegedly
persecutory acts and a statutorily protected ground nor an
objectively reasonable fear of future persecution. This timely
petition for judicial review followed.
Where, as here, the BIA adopts and affirms a portion of
the IJ's decision while also providing additional analysis, we
review the adopted portions of the IJ's decision as well as the
BIA's additions. Acevedo-Aguilar v. Mukasey, 517 F.3d 8, 9 (1st
Cir. 2008) (citing Stroni v. Gonzales, 454 F.3d 82, 87 (1st Cir.
2006); Sulaiman v. Gonzales, 429 F.3d 347, 350 (1st Cir. 2005)).
Our review proceeds according to the substantial evidence standard,
-4-
which demands deference to agency findings of fact that 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) (quotation marks omitted). Thus, rejecting a
factual determination is inappropriate unless the record evidence
compels a conclusion to the contrary. Id. at 481 n.1; see also
Albathani v. INS, 318 F.3d 365, 372 (1st Cir. 2003) ("Merely
identifying alternative findings that could be supported by
substantial evidence is insufficient to supplant the BIA's
findings.").
To be eligible for asylum, an alien must establish that
he is unwilling or unable to return to his home country due to 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. § 1101(a)(42)(A); see id. § 1158 (b)(1)(B). An
applicant may carry this burden by demonstrating past persecution,
which creates a rebuttable presumption that a well-founded fear of
future persecution endures. 8 C.F.R. § 1208.13(b)(1). A well-
founded fear may be established regardless of whether there was
past persecution, id. § 1208.13(b)(2), but the petitioner here
makes no effort to argue that he has established fear of future
persecution independent from his claim of past persecution.3 See
3
This argument was absent from the petitioner's brief to the
BIA, as well. The government asserts that any potential challenge
to the IJ's finding that he did not have an objectively reasonable
fear of future prosecution was therefore abandoned long before
-5-
Makhoul v. Ashcroft, 387 F.3d 75, 82 (1st Cir. 2004). Accordingly,
proof of past persecution is his only remaining avenue to potential
relief.
To demonstrate past persecution, Guerrero must produce
"convincing evidence of a causal connection" between the harm that
he endured and a statutorily protected ground - in this case, his
political belief. Amouri v. Holder, 572 F.3d 29, 33 (1st Cir.
2009). The Supreme Court long ago cautioned that in the context of
alleged persecution at the hands of guerilla groups, "the mere
existence of a generalized 'political' motive underlying the
guerillas' [mistreatment] is inadequate to establish . . . the
proposition that [a petitioner] [suffered] persecution on account
of political opinion . . . ." Elias-Zacarias, 502 U.S. at 482.
Rather, the petitioner must provide evidence, whether direct or
circumstantial, that the persecutor was motivated at least in part
by the victim's political opinion. Id. at 817; see also Sompotan
v. Mukasey, 533 F.3d 63, 69, 69 n.3 (1st Cir. 2008) (elucidating
the standard for assessing mixed-motives in applications that, like
Guerrero's, were filed prior to the May 11, 2005 effective date of
the REAL ID Act, 8 U.S.C. § 1158(b)(1)(B)(I)). Absent such
evidence, we have consistently held that "the classic pattern of
arrival at our door. See Silva v. Gonzales, 463 F.3d 68, 72 (1st
Cir. 2006) ("Under the exhaustion of remedies doctrine, theories
insufficiently developed before the BIA may not be raised before
this court." (citation omitted)); see also 8 U.S.C. § 1252(d)(1).
Because the claim has in any event been waived in the petition for
judicial review, we need not address this contention.
-6-
forced recruitment is far and away the more plausible explanation"
for compelled assistance in the guerillas' cause.
Velasquez-Valencia v. INS, 244 F.3d 48, 50 (1st Cir. 2001); accord
Tobon-Marin v. Mukasey, 512 F.3d 28, 32 (1st Cir. 2008);
Bartolo-Diego v. Gonzales, 490 F.3d 1024, 1028 (1st Cir. 2007).
The petitioner challenges the agency's determination that
the mistreatment that he suffered was "more in the nature of []
forced conscription than of persecut[ion]." He emphasizes that
unlike in Elias-Zacarias and related cases, the guerillas knew his
political view and even attempted to change it by forcing him to
attend political meetings. On the basis of this evidence, he
asserts that whatever the guerillas' other reasons for targeting
him for mistreatment, one of their motives was clearly his
political opinion. For the reasons discussed below, we do not
believe the evidence mandates a finding to that effect.
We begin with the evidence, credited by the IJ and BIA,
that the petitioner's political opinion was either known or
presumed by the guerillas. While such evidence is certainly
necessary to the petitioner's claim, see, e.g., Elias-Zacarias, 502
U.S. at 482 (denying petition in light of lack of evidence that
petitioner ever expressed any political support for or opposition
to either side of conflict or that the guerillas ever attributed to
him a political motive for refusal to join ranks); Tobon-Marin, 512
F.3d at 31-32 (same); Bartolo-Diego, 490 F.3d at 1027 (same);
Velasquez-Valencia, 244 F.3d at 50 (same), it is not sufficient.
-7-
It is not enough to point to the guerillas' presumed knowledge of
Guerrero's opposition to their cause, or even to argue, as the
petitioner does, that the guerillas had "very little regard for his
safety and well-being" because of it. To demonstrate persecution
"on account of" his political belief, the petitioner must also
provide specific evidence that the FMLN targeted him as a means to
punish him for the pro-government, anti-guerilla view that they
attributed to him. See Tobon-Marin, 512 F.3d at 31 (citations
omitted).
That the guerillas forced the petitioner to attend
political rallies along with his fellow villagers does not
unarguably demonstrate such politically-motivated punitive intent.
While the Board might have inferred that the guerillas forced the
petitioner to attend these rallies in order to punish him for and
to overcome his opposition to their cause, it could also have
reasonably concluded that the events had less to do with the
petitioner's political beliefs than with the guerillas' own
political and military strategy. Cf. Elias-Zacarias, 502 U.S. at
482 ("[P]ersecution on account of . . . political opinion . . . is
persecution on account of the victim's political opinion, not the
persecutor's."). It is plausible, for example, that the guerillas
rounded up the petitioner and his fellow villagers in order to
create an illusion of greater popular support for what was, after
all, alleged to be a popular cause. They may also have sought, in
a classic tactic of guerilla warfare, to blur the lines between
-8-
their forces and the civilian population. "Where, as here, the
constellation of facts and circumstances alleged by the asylum
applicant . . . support two or more competing inferences, the
[agency's] choice among those inferences cannot be deemed
erroneous." Aguilar-Solis v. INS, 168 F.3d 565, 571 (1st Cir.
1999) (citation omitted). A fortiori, the record evidence does not
compel the conclusion that the petitioner's forced attendance at
political rallies - much less any of the other incidents that
comprise his claim - bore a nexus to a protected ground.4
Having determined that the petitioner has failed to
surmount the standard of review with respect to his claim of past
persecution, we need not linger over his remaining claims.
Inasmuch as he has failed to establish past persecution, his
arguments with respect to the possibility of relief under the
humanitarian exception are moot.5 Moreover, his unsuccessful bid
4
The IJ also found that the events described by Guerrero were
not sufficiently severe to rise to the level of persecution, but
the BIA did not reach that issue.
5
In an apparent acknowledgment of the difficulty that he
would face in maintaining a presumption of a well-founded fear of
persecution arising out of past persecution, cf. Aguilar-Solis, 168
F.3d at 572 (holding that the Salvadoran peace accords constituted
changed country conditions supporting the agency's finding that the
petitioner's fear of the FMLN was not objectively reasonable), the
petitioner notes that even in the event of a government rebuttal he
may still be granted asylum under the so-called "humanitarian
exception," see 8 C.F.R. § 1208.13(b)(1)(iii). The petitioner
recognizes, however, that relief under the humanitarian exception
is available only to applicants who successfully establish past
persecution. See id. As the petitioner has not made such a
showing, we do not reach his claim that the IJ should have made a
finding regarding eligibility for relief under this exception.
-9-
for asylum necessarily precludes his counterpart claim for
withholding of removal. See Morgan v. Holder, 634 F.3d 53, 60 (1st
Cir. 2011) (citing Amouri, 572 F.3d at 35).
For the reasons elucidated above, the petition for
judicial review must be denied.6
6
Notwithstanding our disposition of the petition, Guerrero is
not without reprieve, at least temporarily. Guerrero has been
granted Temporary Protected Status ("TPS") pursuant to 8 U.S.C. §
1254a. See also U.S. Citizenship and Immigration Serv., Dep't of
Homeland Sec., DHS Docket No. USCIS 2007-0028, Extension of the
Designation of El Salvador for Temporary Protected Status and
Automatic Extension of Employment Documentation for Salvadoran TPS
Beneficiaries (extending El Salvador's TPS designation, previously
set to expire on March 9, 2012, through September 9, 2013).
Although TPS does not preclude the initiation of deportation
proceedings or the entry of an order of removal, it does prohibit
such an order from being executed during the pendency of the
designation. 8 U.S.C. § 1254a(a)(1)(A) ("[T]he Attorney General .
. . shall not remove the alien from the United States during the
period in which [TPS] status is in effect . . . ."); see also In re
Sosa Ventura, 25 I&N Dec. 391 (BIA 2010) ("[T]he respondent is
protected from execution of a removal order during the time her TPS
status is valid . . . ."); cf. Yao v. INS, 2 F.3d 317, 319 (9th
Cir. 1993) (concluding that alien's pending application for
legalization of immigration status as Special Agricultural Worker
did not preclude initiation of deportation proceedings or entry of
deportation order, but did prohibit execution of the order).
Consequently, Guerrero should not be ordered to depart from the
United States unless and until his TPS status expires or is
otherwise forfeited.
-10-