Carranza-Quinones v. Mukasey , 280 F. App'x 753 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
June 4, 2008
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
PEDRO MIGUEL
CARRANZA-QUINONES,
Petitioner, No. 07-9540
(Petition for Review)
v.
MICHAEL B. MUKASEY,
United States Attorney General,
Respondent.
ORDER AND JUDGMENT *
Before BRISCOE, PORFILIO, and BALDOCK, Circuit Judges.
Petitioner Pedro Miguel Carranza-Quinones is a native and citizen of Peru.
He challenges the Board of Immigration Appeals (BIA’s) decision affirming an
immigration judge’s (IJ’s) order that denied his asylum application. We deny the
petition. 1
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
It does not appear that Carranza-Quinones is challenging the adverse
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B ACKGROUND
In Peru, Carranza-Quinones worked as an accountant, and was
“well-positioned economically.” Admin. R. at 300. In February 2000, eight
police officers entered Carranza-Quinones’ home without judicial authorization
and planted cocaine inside. They hit Carranza-Quinones on the head once with a
pistol, causing a bump, and demanded $2,000 to destroy a document indicating
that the drugs were his. According to Carranza-Quinones, “the police do this to
people that make a good living, people that have a job.” Id. at 293.
Carranza-Quinones’ wife gave the officers $1,000, and they took
Carranza-Quinones to a jail to secure payment of the remainder. Three days later,
his wife contacted Carranza-Quinones’ brother, a Peruvian diplomat, who in turn
notified the Peruvian police’s anti-corruption unit. The eight officers were
arrested, and ultimately, seven were convicted in a “police trial.” Id. at 280-81.
During the ordeal, Carranza-Quinones spent twelve days in custody.
Afterward, he received frequent—apparently anonymous—telephone calls
threatening “that if [he] kept talking, they were going to kill [him].” Id. at 286.
As a result of the threats, Carranza-Quinones received police protection.
1
(...continued)
administrative determinations on his claims for restriction on removal and
withholding of removal under the Convention Against Torture (CAT). In any
event, because Carranza-Quinones cannot establish that he was persecuted for
purposes of obtaining asylum, he “necessarily fail[s] to meet the higher standards
required for restriction on removal . . . or withholding of removal under the
[CAT].” Solomon v. Gonzales, 454 F.3d 1160, 1163 (10th Cir. 2006).
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One day in 2003, he saw one of the officers who had been involved in the
extortion plot and who now worked for the Peruvian immigration department.
That person said that if he (Carranza-Quinones) did not stop talking, “something
bad” would happen that would “make it impossible for [Carranza-Quinones] to
renew [his] passport.” Id. at 293. Carranza-Quinones left Peru several weeks
later, entered the United States on a non-immigrant visa, and applied for asylum,
restriction on removal, and protection under the CAT. After his visa expired, the
Department of Homeland Security commenced removal proceedings and ordered
him to appear for a hearing before an IJ.
At the hearing, Carranza-Quinones testified that he feared returning
to Peru because he had brought down several police officers. Carranza-Quinones
also testified that in Peru he organized meetings for “Peru Possible,” a political
party that opposed government corruption and President Alberto Fujimori. Id.
According to Carranza-Quinones, the officers in the extortion plot were aligned
with President Fujimori.
The IJ ordered Carranza-Quinones removed to Peru, finding that the
extortion incident was not connected to his political opinion or any other ground
sufficient to qualify for relief. The BIA affirmed the IJ’s decision, stating that
Carranza-Quinones failed to support his claim that the harm and fear he
experienced was “inflicted on account of [his] political opinion.” Id. at 30.
Carranza-Quinones then filed in this court the instant petition for judicial review.
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D ISCUSSION
I. Standard of Review
Where, as here, the BIA issues a brief, one-member order, our review
focuses on the BIA’s order, rather than the IJ’s decision. Sarr v. Gonzales,
474 F.3d 783, 790 (10th Cir. 2007). But “when seeking to understand the grounds
provided by the BIA, we are not precluded from consulting the IJ’s more
complete explanation of those same grounds.” Id. (quotation omitted). We will
not disturb the BIA’s determination if it is supported by “reasonable, substantial
and probative evidence.” Id. at 788 (quotation omitted).
II. Asylum
“To qualify for asylum, an alien must show that he has suffered past
persecution or has a well-founded fear of future persecution on account of race,
religion, nationality, membership in a particular social group, or political
opinion.” Id. (quotations and alteration omitted). Carranza-Quinones focuses on
the last category—political opinion. He seems to argue that he was extorted
because of his association with Peru Possible. But there is absolutely no evidence
in the record of a nexus between Carranza-Quinones’ political association and the
extortion plot. Indeed, Carranza-Quinones testified that he thought Peruvian
police extorted people because they were financially well off. See Admin. R. at
293. And while the officers who extorted Carranza-Quinones may have been
aligned with Peru Possible’s opponent, President Fujimori, that fact alone is
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insufficient to show that there was persecution “on account of” political opinion.
See Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir. 1997) (observing that
persecution on account of political opinion requires “something more than
violence plus disparity of views”).
Carranza-Quinones also contends that the death threats he received for
exposing the extortion plot qualify as persecution on account of political opinion.
Our circuit has not yet addressed the circumstances under which retaliation for
exposing government corruption can be treated as persecution “on account of . . .
political opinion.” Sarr, 474 F.3d at 788. 2 Other “courts have held that
whistleblowing against corrupt government officials may constitute political
activity sufficient to form the basis of persecution ‘on account of political
opinion,’ as can the refusal to accede to government corruption.” Bu v. Gonzales,
490 F.3d 424, 431 (6th Cir. 2007) (collecting cases). Even in those cases,
however, “the salient question is whether [the whistleblower’s] actions were
directed toward a governing institution, or only against individuals whose
corruption was aberrational.” Grava v. INS, 205 F.3d 1177, 1181 (9th Cir. 2000).
2
We assume, without deciding, that the death threats against
Carranza-Quinones are of sufficient magnitude to constitute persecution.
See Sidabutar v. Gonzales, 503 F.3d 1116, 1124 (10th Cir. 2007) (stating that
persecution requires “more than just . . . threats to life and liberty” (quotation
omitted)); Yuk v. Ashcroft, 355 F.3d 1222, 1234 (10th Cir. 2004) (stating that
threats alone may constitute persecution “when they are so immediate and
menacing as to cause significant suffering or harm in themselves” (quotation
omitted)).
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When the corruption is aberrational, it tends to indicate that the reprisals against
the whistleblower are intended “to shut [the whistleblower] up for purely self-
protective reasons,” rather than to punish the whistleblower for voicing a political
opinion about government misconduct. See Marquez v. INS, 105 F.3d 374, 381
(7th Cir. 1997).
Here, Carranza-Quinones exposed the extortion plot of eight officers of the
Peruvian police force. That institution was not involved in the plot, and in fact,
its anti-corruption unit intervened on Carranza-Quinones’ behalf and arrested the
officers, convicted seven of them, and later provided protection when Carranza-
Quinones began receiving death threats. No evidence in the record compels the
conclusion that the criminal acts of those officers were typical of Peruvian police
officers or that the anti-corruption unit’s intervention was an anomaly. See INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992) (identifying the quantum of evidence
necessary to overturn the BIA’s asylum-eligibility determination). Consequently,
we conclude that Carranza-Quinones was threatened for purely self-protective
reasons, and not because of his political opinion against corruption. See Marquez,
105 F.3d at 381.
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C ONCLUSION
The BIA did not err in concluding that Carranza-Quinones failed to
establish his eligibility for asylum. Accordingly, the petition for review is
DENIED.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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