Gutierrez Borrovic v. Attorney General of the United States ( 2012 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 10-1305
_____________
MARTIN ALEJANDRO GUTIERREZ BORROVIC,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
_______________________
On Petition for Review from the Board of Immigration Appeals
BIA-1 No. A099-423-126
Immigration Judge: The Honorable Margaret Reichenberg
_______________________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
May 17, 2012
Before: SMITH, and FISHER, Circuit Judges,
and STEARNS, District Judge∗
(Filed: June 5, 2012)
_______________________
OPINION
_______________________
SMITH, Circuit Judge.
∗The Honorable Richard G. Stearns, United States District Judge for the United States
District Court of Massachusetts, sitting by designation.
Martin Alejandro Gutierrez Borrovic, a native and citizen of Peru, entered the
United States as a visitor in November of 2004. He overstayed his visitor visa. In
August of 2005, he filed an application for asylum, withholding of removal, and relief
under the Convention Against Torture (CAT). Citing certain incidents that occurred
while he was a seminary student in the Roman Catholic faith performing pastoral duties
in his cassock, Gutierrez Borrovic sought asylum on the basis of religious and political
persecution. Thereafter, he was served with a Notice to Appear, charging him as
removable for overstaying his visa. Gutierrez Borrovic conceded removability, and
relied upon his pending application for asylum, withholding of removal, and relief under
the CAT. The Immigration Judge (IJ) found that there were some concerns about
Gutierrez Borrovic’s credibility. Nonetheless, the IJ assumed that Gutierrez Borrovic
was credible, and determined that Gutierrez Borrovic had neither suffered past
persecution on account of his religion or political opinion, nor had a well-founded fear of
future persecution. Accordingly, the IJ denied his application.
Gutierrez Borrovic filed a timely appeal with the Board of Immigration Appeals
(BIA). It adopted the IJ’s decision and affirmed the denial of Gutierrez Borrovic’s
application. This timely petition for review followed. 1
Gutierrez Borrovic contends that the BIA erred by affirming the decision of the IJ.
He asserts that the IJ erred by concluding that he failed to establish past persecution. In
his view, because he was persecuted, Gutierrez Borrovic submits that the IJ also erred by
1
The Immigration Court had jurisdiction under 8 U.S.C. § 1229a. The BIA exercised
jurisdiction under 8 C.F. R. § 1003.1(b). Our jurisdiction is pursuant to 8 U.S.C.
§ 1252(a).
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denying his application for withholding of removal and for relief under the CAT.
Because the BIA’s order adopted the findings of the IJ and set forth its own
abbreviated analysis of Gutierrez Borrovic’s application, we review the decisions of both
the IJ and the BIA. Abulashvili v. Attorney General, 663 F.3d 197, 202 (3d Cir. 2011).
Our review of the IJ’s factual findings, including the finding that an alien has not suffered
past persecution, is for substantial evidence. Sandie v. Attorney General, 562 F.3d 246,
251 (3d Cir. 2009). We will not disturb the factual findings if they are “supported by
reasonable, substantial, and probative evidence on the record considered as a whole.”
Immigration and Naturalization Serv. v. Elias-Zacarias, 502 U.S. 478, 481 (1992)
(internal quotation marks and citation omitted). As the Supreme Court instructed in
Elias-Zacarias, the determination by the agency “can be reversed only if the evidence
presented . . . was such that a reasonable factfinder would have to conclude” otherwise.
Id.Gutierrez Borrovic contends that as a seminary student performing pastoral duties,
he suffered persecution on the basis of his religious and political beliefs at the hands of
the Shining Path organization because it believed the Catholic Church was a tool of
imperialists. The evidence reveals that, in February of 2000, Gutierrez Borrovic began
his studies at a seminary in the City of Huanuco, Peru. While he was performing pastoral
duties in July or August of 2000, he learned that leaflets were left in his church,
criticizing the priests and threatening to kill or harm them if they did not leave. At one
point, unknown individuals approached him after Mass and identified themselves as
members of the Shining Path. He claims they criticized the church, insulted him and
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another person who was present, and suggested that he should leave the city “to avoid
problems.” He reported this to his superiors, who stopped the assignment of pastoral
duties. Gutierrez Borrovic continued his studies at the seminary until January of 2001
without incident.
At that time, Gutierrez Borrovic accepted the invitation of Father Rodriguez, a
local priest in Churubamba, a community approximately an hour and a half away from
the seminary in Huanuco. He worked with Father Rodriguez, performing pastoral duties
in the community and helping with a house for juveniles. In June of 2001, propaganda
leaflets were left in the church. The following month, four individuals approached him
after he finished celebrating the Mass, identified themselves as members of the Shining
Path, criticized his involvement with the Roman Catholic Church, abducted him for an
hour and a half, told him that they were going to kill him, and told him to stop visiting the
communities. During the abduction, he was pushed by the individuals, forced to sit in an
uncomfortable position behind the driver’s seat of a car, and suffered from a numbness in
his feet. Gutierrez Borrovic did not receive any physical injuries during the abduction
that required medical attention. Thereafter, Gutierrez Borrovic left Peru. He claimed that
the Shining Path continued to pursue him as inquiries about his whereabouts were made
to two of his family members.
After considering Gutierrez Borrovic’s testimony, the IJ concluded that Gutierrez
Borrovic had not suffered persecution. Furthermore, the IJ noted that the identity of the
individuals making the inquiries were unknown and the inquiries were neither menacing
nor of a nature to prevent him from returning to Peru on three occasions. The BIA
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agreed, citing Fatin v. Immigration & Naturalization Service, 12 F.3d 1233, 1240 (3d
Cir. 1993).
Fatin instructs that persecution is “extreme conduct” and that it “does not
encompass all treatment that our society regards as unfair, unjust or even unlawful or
unconstitutional.” Id. at 1240 & n.10. After carefully considering the record, we
conclude that the evidence supports the IJ’s determination that Gutierrez Borrovic did not
suffer past persecution as it is defined in Fatin. Accordingly, we reject Gutierrez-
Borrovic’s argument that the IJ erred by denying his asylum claim.
The standard that an alien must establish to obtain withholding from removal
under 8 U.S.C. § 1231(b)(3) is higher than the standard for asylum. Lukwago v. Ashcroft,
329 F.3d 157, 182 (3d Cir. 2003). Because Gutierrez-Borrovic was unable to meet the
burden of proof for his asylum claim, it follows that he did not satisfy the burden for his
claim for withholding of removal. Id.Finally, we consider Gutierrez Borrovic’s assertion that he is entitled to relief
under the CAT. Under the CAT, an alien is entitled to relief if he can show, inter alia,
“that it is more likely than not that he . . . would be tortured if removed” to Peru. 8
C.F.R. § 208.16(c)(2). The evidence of record, however, does not satisfy this
requirement as there is no evidence of any hostility towards Gutierrez Borrovic on the
part of the Peruvian government or any evidence of a palpable threat of persecution by
the remnants of the now mostly isolated Shining Path.
For the reasons set forth above, we will deny Gutierrez Borrovic’s petition for
review.
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