Ontunez-Tursios v. Ashcroft ( 2002 )

REVISED SEPTEMBER 9, 2002
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-60650
SANTIAGO NAHUN ONTUNEZ-TURSIOS,
Petitioner,
versus
JOHN ASHCROFT, U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
August 13, 2002
Before GARWOOD, WIENER and CLEMENT,1 Circuit Judges.
GARWOOD, Circuit Judge:
Honduran citizen Santiago Nahun Ontunez-Turcios appeals the
denial of his application for asylum and withholding of removal
under section 241(b)(3) of the Immigration and Nationality Act
1
Judge Edith Brown Clement participated by designation in the oral argument of this case as
a United States District Judge for the Eastern District of Louisiana. Since that time she has been
appointed as a Fifth Circuit Judge.
(“Act”) and the United Nations Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (“Convention”),
arguing that his efforts as part of a Honduran land collective make
him a “refugee.” The immigration judge and Board of Immigration
Appeals held that Ontunez's evidence only demonstrated that his
land conflict was private and economic in nature, that any
persecution of him was not shown to have been on account of his
political opinion or membership in a particular social group, and
therefore he was not entitled to asylum or withholding of removal.
Because Ontunez has not presented evidence that compels the
opposite result, we affirm.
Background
Honduran land reform laws under certain circumstances allow
peasant farmers–“campesinos”--to gain ownership of land lacking a
proper legal title by cultivating it as part of an agrarian reform
plan. See Steven E. Hendrix, Property Law Innovation in Latin
America With Recommendations, 18 B.C. INT'L & COMP. L. REV. 1, 38
(1995). Their efforts, however, are sometimes opposed by business
or landowner interests with plans for private agricultural or other
investment. When legal methods fail the campesinos, they sometimes
occupy private agricultural land illegally and the government
evicts them by such minimal force as is necessary. See United
States Department of State, Honduras: Profile of Asylum Claims &
Country Conditions, January 1999, at 5-6. Although Honduras has
2
elected five presidents in a row through generally fair and
democratic elections, the economic and official elite still possess
“considerable impunity.” See id. at 2; United States Department of
State, Honduras Country Report on Human Rights Practices for 1998,
at 1. Conditions in Honduras were vastly worsened in October 1998,
when Hurricane Mitch devastated the country. From out of this
difficult situation, Ontunez brings his request for asylum and
withholding of removal.
The factual background of this case comes almost exclusively
from Ontunez's own testimony, both at the hearing before the
immigration judge and in his application for asylum. Ontunez
testified that in April 1994, he moved to the city of La Ceiba on
the northern Caribbean coast of Honduras with his live-in companion
and his son. He worked as a mechanic and joined with other
campesinos who wanted to cultivate an area in La Ceiba called Las
Delicias. A woman in the town claimed to have title to Las
Delicias through a document she had never registered; she executed
a power of attorney in favor of the campesinos but refused to
register her legal title because her husband had been murdered in
1965 and she feared reprisals against her son. Each family began
cultivating an area of sixty by forty meters, and they created a
cooperative called the Foundation for the Betterment of Las
Delicias for the purpose of acquiring legal title to the land.
Ontunez was “First Speaker” for the Foundation, which meant that he
3
read the minutes at meetings and encouraged the other campesinos to
remain united in the pursuit of their goal.
In 1996, a group of businessmen challenged the Foundation's
right to the land. This group consisted of five local “landlords,”
including Eugenio “Henyo” Varela (“Varela”) and Mario Melgar
(“Melgar”). Ontunez alleges that Melgar is an attorney who
represents Mario Facusse, the majority stockholder of a prominent
Honduran business2 and the nephew of Carlos Roberto Flores Facusse,
President of Honduras since 1998.3 The landlords4 claimed they had
legal title to Las Delicias and made plans to sell it to Korean
investors.
In late 1996, the landlords threatened to drive the
Foundation's members from Las Delicias. In 1997 a judge ordered
Las Delicias cleared, apparently at Melgar's request, despite
Ontunez's allegations that the landlords produced no evidence of
title justifying the legal action. The police enforced the order
2
In his asylum application, Ontunez calls the corporation
“Gigante.” At his hearing, the court reporter was unable to
understand the name of the corporation but transcribed it
phonetically as “Essay.”
3
The INS did not challenge this assertion or produce evidence
to the contrary. Though there are indications that Mario Facusse
may be a cousin to the Honduran president, not a nephew, we will
consider the evidence as it stood before the BIA. Similarly, we
will not consider indications that Mario Facusse may belong to a
different political party than Flores and may openly oppose him.
4
The briefs for the appellant call these businessmen “The
Facusse Group,” although Ontunez did not use that name. We will
use Ontunez's nomenclature, “the landlords.”
4
by removing the campesinos from the land and completely destroying
their homes, but the Foundation returned to Las Delicias and
rebuilt. At around this time, Foundation treasurer Jesus Pascual
was killed. While Ontunez blames the landlords, he admitted that
there was no evidence of who committed the crime.
The landlords then obtained a “new order” of some kind and
offered to settle the legal title issue with the campesinos for
1,000 lempiras per plot. The Foundation asked for a hearing before
the mayor so that they could determine whether the landlords had
any valid claim to the land justifying the payments. Mayor
Marjorie Dik declined to hold the hearing. Ontunez alleges that
while Dik had generally supported the Foundation because of its
work building a school, she feared reprisals from Varela if she
declared the land belonged to the cooperative. In his application
for asylum, Ontunez intimated that Dik left office in 1998 because
of this fear.5
In 1998, Gonsalo Rivera O'Campo was elected mayor of La Ceiba
and the Foundation again pursued a hearing to negotiate the
question of land title. The parties expected Governor Adalberto
Giron Romero to attend the March 1998 meeting, but he ultimately
refused. Ontunez alleges Giron abstained because he believed the
landlords had no valid title, making the negotiations illegitimate.
5
However, Ontunez testified that Dik served her full term as
Mayor. Perhaps his application intended to suggest that her fear
of reprisals caused her to not seek re-election.
5
Ontunez also alleged his belief that Giron was subsequently removed
from office by President Flores because of his support for the
Foundation.6
After the proposed O'Campo hearing failed in March 1998, the
Foundation and the landlords agreed to come together at a public
meeting to discuss the offered settlement. The Foundation arrived
first, and Ontunez began denouncing official corruption through an
amplified microphone. At least four of the landlords7 arrived with
Marcos Puerto (“Puerto”) and two Honduran police in their company.
When the men were about 25 meters away from Ontunez, Varela nodded
to Puerto, who pulled out an AK-47 rifle and shot Foundation guard
Juan Mejia. While Ontunez took cover, the landlord group returned
to their car and left.
Dissatisfied with the La Ceiba police's investigation into the
murder and concerned for their safety, Foundation members looked
for Puerto themselves. In April, they received a tip that Puerto
was located on the property of Mario Facusse in the city of San
Pedro Sula. The Foundation told the Department of Criminal
Investigations of his location, and the San Pedro Sula police
6
Ontunez's testimony was inconsistent on this point; twice
he claimed Giron was removed from office prematurely and once he
testified that Giron merely left at the end of his term.
7
Ontunez does not list Melgar as being among the landlord
group, although he appears to suggest that they used Melgar’s car
to drive to the meeting. At another point, however, Ontunez blamed
Melgar for bringing the police to the meeting, and attributes to
Melgar a statement implying that he was in the car when the
assassin got in.
6
arrested Puerto. Ontunez testified that the president of the
Foundation, Rosa Mejia, told Ontunez that she had been present
during Puerto's interrogation by the police and that Puerto had
then admitted that the landlords hired him to assassinate Ontunez
and another man, but that he shot Juan Mejia by mistake. Ontunez
speculated that that error came from Puerto's misinterpretation of
Varela's nod toward the Foundation members. Puerto was prosecuted
for his crime, convicted, and incarcerated.
In October 1998, Ontunez went to the land title office in La
Ceiba, where he met and confronted Melgar. Both men were
apparently searching for title records for Las Delicias. Ontunez
accused Melgar of being an accomplice to the death of Mejia, while
Melgar apparently denied the allegation and claimed that he was
afraid of the assassin as well. Ontunez's search of the land
records turned up no registered title to Las Delicias. It was in
this month that Hurricane Mitch hit Honduras and devastated the
nation, destroying nearly everything in Las Delicias. Among the
items destroyed were the Foundation's collection of public
documents regarding the landlords. Ontunez testified that he had
been to several cities gathering the criminal histories of the
landlords and their employees as well as records of the complaints
filed against them.
In April 1999, six months after the confrontation with Melgar,
the landlords or those Ontunez thought to be acting for them came
7
armed to Ontunez's home and threatened his life. Ontunez feared
for his safety and fled to his brother's house in San Pedro Sula,
leaving his family behind. By the end of July, Ontunez missed his
family and returned to Las Delicias, despite his fear of being
killed. When he returned, two of the landlords and their guards
came to Ontunez's house with weapons and ordered him to leave town
within one month and fifteen days or they would remove him from Las
Delicias, either in “a good way or in a bad way.”8 An unidentified
young man was with them, who stared at Ontunez during the meeting.
After they left, a neighbor told Ontunez that the young man had
said “this deer will not escape me” or words to that effect.
Ontunez took this as a death threat and described the young man as
a paid assassin, but admitted that he had no direct knowledge of
the young man's motive. At the urging of his mother, Ontunez left
his family behind and fled Honduras. He first entered Guatemala
legally, and then traveled to Mexico and crossed the Rio Grande
river near Hidalgo, Texas. He was apprehended by the Border Patrol
while attempting to evade the Falfurrias checkpoint on September
19, 1999.
Ontunez conceded his removability at a hearing on October 15,
8
Ontunez's story regarding these two confrontations is
frequently confusing, especially comparing his application for
asylum and his oral testimony. This version of events is the one
that best fits Ontunez's various assertions and his clarifications
in cross-examination.
8
19999 and applied for asylum. At his hearing before the
immigration judge on December 15 and 20, 1999, Ontunez offered the
above testimony and some documents. Among these documents was a
letter from Raul G. Tovar Ramos, present governor of Atlantida,
which attests to Ontunez's good character and corroborates that
Ontunez's life was threatened by “various unscrupulous persons and
neighbors” in La Ceiba. Governor Tovar also attests that Ontunez
was a victim of Hurricane Mitch. In another document, Honduran
attorney Paul Tovar Vargas avers that Ontunez has charged “several
individuals of dubious reputation” in La Ceiba of threatening his
life in an attempt to take his land, and that this was the reason
he emigrated to the United States.
The immigration judge noted that an application for asylum
should also be construed as an application for withholding of
removal under both the Act and the Convention, and then denied
Ontunez relief on all three counts. Despite pointing out several
inconsistencies in Ontunez's testimony, the immigration judge found
his testimony generally credible. Nevertheless, the judge held
that Ontunez was not a “refugee” as defined in 8 U.S.C. §
1101(a)(42) because his situation did not arise “on account of” any
of the five enumerated motives for the claimed persecution: “race,
religion, nationality, membership in a particular social group, or
political opinion.” Ontunez failed to carry his burden, the
9
The transcript is dated April 15, 1999, but from other
documents it seems clear that “April” is an error.
9
immigration judge held, because his conflict with the landlords was
not shown to arise other than solely from a private fight over
land. The landlords did not act against Ontunez because of
Ontunez’s political opinions or membership in a particular social
group. Accordingly, the judge denied Ontunez's requests for asylum
and withholding of removal under the Act. The judge also held that
Ontunez had not shown he would be subject to torture upon return to
Honduras and thus denied Ontunez's claim under the Convention.
The Board of Immigration Appeals acknowledged that Ontunez had
demonstrated that the landlords possessed both the economic desire
to sell Las Delicias to foreign investors and a willingness to
threaten those who got in the way, but concurred with the
immigration judge that Ontunez had not shown a nexus between the
persecution and one of the persecutors’ motives enumerated in the
Act. The BIA then discussed the Convention's requirement of a
government connection to the feared torture and held that Ontunez
was not entitled to protection under the Convention because he had
not shown that a government official would instigate torture or
acquiesce to it. The BIA dismissed Ontunez's appeal and he timely
appealed to this court.
Discussion
I. Legal Error in the Asylum Claim
Ontunez first asserts on appeal that the BIA applied an
incorrect legal standard to his request for asylum. We review the
10
BIA's conclusions of law de novo. Mikhael v. INS, 115 F.3d 299,
302 (5th Cir. 1997). We review the decision of the BIA, and reach
the underlying decision of the immigration judge only if that
decision has some impact upon the BIA's opinion. Id.
Section 208(a) of the Immigration and Nationality Act, 8
U.S.C. § 1158(a), grants the Attorney General the discretion to
permit asylum to an alien who is a “refugee,” a term which is
defined as an alien who is unable or unwilling to return to his or
her country of origin because of “persecution or a well-founded
fear of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.”
See 8 U.S.C. § 1101(a)(42)(A). Ontunez's legal error appeal
concerns the “on account of” language, which requires the alien to
prove some nexus between the persecution and the five protected
grounds. See generally INS v. Elias Zacharias, 112 S. Ct. 812
(1992). Ontunez claims that the BIA looked at his evidence only as
proof of economic conflict without considering that it also
demonstrates a political struggle. Therefore, Ontunez argues, the
BIA applied too stringent a standard and effectively required him
to demonstrate that his persecution was primarily on account of a
protected ground rather than merely that his persecution had some
nexus to a protected ground.
Ontunez relies upon Rivas-Martinez v. INS, 997 F.2d 1143 (5th
Cir. 1993), a case in which the BIA incorrectly applied an “either-
11
or” analysis to the “on account of” requirement. In Rivas-
Martinez, El Salvadorean FMLN guerillas ordered Rivas to help them
in their struggle against the government, but she refused. Id. at
1145. She told the guerillas she could not help them because she
was a widowed mother and had to give constant care to a small
child; she actually refused because she strongly supported the
government. Id. When the guerillas refused to accept her
proffered reason, she chose to flee rather than support the FMLN.
Id. While the immigration judge granted her asylum, the BIA
reversed because it reasoned that Rivas had given a non-political
reason for her refusal and thus logically could not have been
persecuted “on account of” a political opinion as required in the
Act. Id. On appeal, this court reversed the BIA and remanded for
reconsideration. Without examining the sufficiency of Rivas's
evidence, we found that the nexus requirement is not an “either-or”
proposition. Instead, the proper standard allows the applicant’s
testimony to prove the necessary persecution even though other
evidence fails to advance her cause. Thus, while Rivas offered a
non-political excuse to the guerillas, it was error for the BIA to
categorically prevent her from showing political persecution
through other evidence. After all, the guerillas may have known
her statement was false because they had other knowledge of her
politics. Id. at 1147-48. Accordingly, we remanded to the BIA for
reconsideration. Id.
12
It is true that Rivas-Martinez counsels that the applicant
must merely demonstrate some nexus between persecution or a well-
founded fear of persecution and one of the conditions enumerated in
8 U.S.C. § 1101(a)(42), notwithstanding evidence that persecution
may have also been based upon other reasons. The BIA correctly
applied this standard to Ontunez's case, however. The BIA stated
in its opinion:
“Regardless of the fact that the Facusse Group may have
been aware of the respondent's claimed political opinion,
we find that based on the record before us, the
respondent failed to establish that the Facusse Group's
alleged destruction of his home and crops and threats to
kill him are in any way related to his political opinion,
rather than to the Facusse Group's desire to retaliate
against him or intimidate him for his actions in
convincing the members of the land cooperative of which
he was a leader to not give up the cooperative's lands to
the Facusse Group, which land the Facusse Group wanted to
complete a business deal with foreign investors.”
(emphasis added)
Unlike Rivas-Martinez, in which the BIA clearly stated an
incorrect legal standard, the BIA appears to have stated and
applied the correct legal requirement. The BIA asked the correct
question: does the evidence demonstrate persecution or fear of
persecution “on account of” political opinion? They state the
standard as “in any way related to,” which admittedly is not a
word-for-word restatement of the standard. Yet, it demonstrates
that the BIA understood the necessity of a nexus and found that no
nexus existed, thus arguably construing the proper legal standard
even more generously in Ontunez's favor. We therefore do not read
13
the BIA's opinion as holding that Ontunez could never prove a nexus
between his political opinion and persecution by the landlords
because his evidence demonstrates an economic motive. Instead, the
BIA simply held that Ontunez's evidence showed no motive of the
persecutors other than a private, economic one and failed to
establish persecution to any extent on account of or motivated by
Ontunez’s political opinion or membership in a particular social
group. The BIA did not disregard mixed motive; Ontunez failed to
meet his burden of proof of a mixed motive. Rivas-Martinez
therefore does not apply.10
This court addressed similar language in Girma v. INS, 283
F.3d 664 (5th Cir. 2002). In Girma, the petitioner claimed that
the INS had failed to properly comprehend the “mixed motive”
doctrine, erroneously requiring Girma to exclude all possibilities
other than the protected factors. Id. at 667. Girma relied
heavily on the BIA's use of the words “rather than,” id. at 668,
which suggested the either-or dynamic forbidden in mixed motive
cases. After deciding that other portions of the opinion showed
the BIA had in fact applied the mixed motive standard correctly,
this Court stated that:
10
Moreover, in Rivas-Martinez the guerillas who threatened
Rivas were an overtly political anti-government guerilla force,
which immediately suggested a nexus between Rivas’s political stand
and the actions of the FMLN. Here, Ontunez's enemies are not shown
to have any political agenda. This is another distinction between
Ontunez's case and Rivas's.
14
The BIA's use of the phrase 'rather than,' was not an
expression of a mutual exclusivity standard between protected
and unprotected grounds but an explanation of its findings
concerning the sufficiency of the evidence relative to
multiple possible motivating grounds, two of which are
protected and one which is not. Id.
We apply the same analysis and reach the same conclusion. While
Ontunez strenuously disagrees with the BIA's conclusion, and while
the BIA used language more equivocal than would be ideal, Ontunez
has not shown that the BIA misunderstood the standard to be applied
to his case. Ontunez's claim of legal error must fail, and
accordingly we will affirm the BIA's decision.
II. Factual Sufficiency in the Asylum Claim
Ontunez next argues that the BIA erred by finding his evidence
insufficient to support a claim of persecution on account of
political opinion or membership in a particular group. This court
reviews “factual findings by the Board to determine if they are
supported by substantial evidence in the record.” Mikhael v. INS,
115 F.3d 299, 302 (5th Cir. 1997). “The substantial evidence
standard requires only that the Board's conclusion be based upon
the evidence presented and be substantially reasonable.” Silwany-
Rodriguez v. INS, 975 F.2d 1157, 1160 (5th Cir. 1992) (quoting
Rojas v. INS, 937 F.2d 186, 189 (5th Cir. 1991)). For this Court
to reverse a factual finding of the BIA, the applicant must show
that “the evidence he presented was so compelling that no
reasonable factfinder could fail to find the requisite fear of
persecution.” INS v. Elias-Zacarias, 112 S. Ct. 812, 817 (1992);
15
Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001).
a. Political Opinion
In order to gain asylum because of persecution due to
political opinion, the alien must first show that his persecutors’
actions were motivated by his, the alien’s, political opinions.
Rivas-Martinez, 997 F.2d at 1147. The relevant question is the
motivation of the persecutor. The alien must demonstrate through
some evidence, either direct or circumstantial, that the
persecutors know of his (the alien’s) political opinion and has or
will likely persecute him because of it. Id. Ontunez argues that
he produced evidence that compels such a finding.
Ontunez relies upon two cases in which circuit courts found
the applicant's actions to be political. In the first, Osorio v.
INS, 18 F.3d 1017 (2nd Cir. 1994), a Guatemalan union leader fled
to the United States after violence broke out in connection with
his union's struggle with their employers, the Guatemalan
government. The immigration judge denied asylum and withholding of
deportation, and the BIA affirmed that decision on the grounds that
struggles between labor and management were economic in nature.
Id. at 1028. The Second Circuit reversed because it interpreted
the BIA's decision as having illogically concluded that evidence of
economic motivation precludes any finding of political persecution,
much like our decision in Rivas-Martinez. Id. The court found
that Osorio's activities had a political aspect because the
16
government perceived the union's economic struggle as threatening
its political power. Id. at 1029-30.
The second case cited by Ontunez is Desir v. Ilchert, 840 F.2d
723 (9th Cir. 1988). In that case, Haitian fisherman Desir was
ordered to pay bribes to the Haitian security force, the Ton Ton
Macoutes. When he failed to pay the required bribes, Desir was
arrested and assaulted by the Macoutes. Id. at 724-25. Desir fled
to the United States, where the immigration judge and BIA refused
him asylum or prohibition of deportation because his persecution
arose solely because he failed to pay money. Id. at 725. The
Ninth Circuit reversed, holding that Desir had amply proven that he
was persecuted on account of his political opinion. The court
relied upon sources deeming Haiti a “kleptocracy,” or government by
theft, and recognized that the failure to pay bribes in such a
government not only offended the Ton Ton Macoutes's finances, but
their politics as well. Id. at 727-28. Because the Duvalier
regime ruled by the fear engendered by these forced bribes, Desir's
resistance led to his categorization as a subversive. This
categorization, the court held, was properly categorized as
political resistance. Id. at 728.
In contrast, the INS refers us to the case of Cuevas v. INS,
43 F.3d 1167 (7th Cir. 1995). In that case, Felisa and Teofilo
Cuevas owned land in the Philippines and rented it to farmers who
used it to grow rice. The tenants stopped paying rent and
17
eventually demanded the right to buy the land. When the Cuevases
refused, they were threatened by anonymous people whom they
believed were connected with the New People's Army, the armed wing
of the Communist Party in the Philippines. Id. at 1169. The
Cuevases fled to America, but the immigration judge and BIA
determined that they had not shown a well-founded fear of
persecution on account of their political opinion. Id. The
Seventh Circuit agreed, holding that despite the possible political
connection “[p]etitioners have transformed a relatively minor land
dispute in an isolated part of their country into a paranoic [sic]
fear of harm anywhere in the Philippines.” Id. at 1171.
Ontunez's case does not resemble Osorio and Desir, cases in
which the alien acted in direct opposition to government policies.
and instrumentalities. In those cases, the direct government
connection cast a political shadow over an otherwise largely
economic claim. Here, the closest connection between Ontunez and
the government is that he stands in economic competition with the
attorney for a businessman who is the nephew of the man who became
President in 1998. Ontunez also draws a governmental connection
from the fact that two local police officers were with the
landlords when Puerto assassinated Mejia. Neither connection
compels us to read his evidence in a new, more overtly political
light.
On appeal, Ontunez must set forth evidence so compelling that
18
“no reasonable factfinder could fail to find” the requisite
elements. Elias Zacarias, 112 S. Ct. at 817. Ontunez has not met
this very difficult requirement because reasonable factfinders
could be unpersuaded that the landlords were motivated by the
political aspects of Ontunez's struggle. The landlords did not
demand Ontunez's silence, they only demanded that he leave Las
Delicias “in a good way or a bad way.” This suggests that the
landlords neither hated him for his general political opposition to
the moneyed elites nor wished to silence his impassioned speeches;
they just wanted him off the land so they could develop it.
Second, Ontunez did not receive any threats while he was in San
Pedro Sula, which suggests that the landlords were satisfied so
long as he remained off the land. Third, we note that the
landlords were willing to settle the land title issue with the
campesinos. While the sum they demanded may have been more than
the farmers could pay, as Ontunez alleges in his brief, the offer
need not have been a sham and may have been a fair offer given
Ontunez's testimony regarding the land's economic potential. At
any rate, the offer indicates that the landlords were interested in
the economic potential of Las Delicias and not in the broader
political struggle.
While the landlords' focusing on the leaders of the Foundation
rather than the rank-and-file campesinos might arguably suggest a
political motive, that argument ultimately fails because the
19
evidence suggests that the landlords would not accept the passive
presence of the campesinos any more than they accepted the vocal
protests of Ontunez and the Foundation. Their goal was simply a
vacant Las Delicias. As a result, we cannot say that all
reasonable factfinders would feel compelled to accept Ontunez's
interpretation of or inferences from the facts. We affirm the
BIA's decision in this respect.
b. Membership in a Particular Social Group
Ontunez next claims that substantial evidence compels the
conclusion that he was persecuted on account of his membership in
the particular social group of “land rights leaders.” To establish
that he is a member of a “particular social group,” he must show
that he was a member of a group of persons that share a common
characteristic that they either cannot change or should not be
required to change because it is fundamental to their individual
identities or consciences. See Matter of Acosta, 19 I&N Dec. 211,
233 (BIA 1985). Once the alien has made this showing, he must also
show that he was persecuted “on account of” such membership.
The BIA did not reach the issue of whether Ontunez was a
member of a particular social group constituted of activist
agrarian cooperative leaders because it held that Ontunez had not
shown that the landlords' actions were “on account of” such
membership. Ontunez argues that the BIA made an impermissible
“metaphysical” distinction between his status as a resistance
20
leader and the actions that led to that status; that is, that the
BIA relied on the actions themselves without considering their
import. We disagree with this construction, which takes a valid
distinction and attempts to render it incoherent.
The evidence does not compel a finding that the landlords
cared whether Ontunez was in the particular social group of
“activist agrarian cooperative leaders”; it shows they cared about
the land in Las Delicias but does not compel the conclusion that
they cared about his activism generally. Ontunez only offered
evidence of persecution against the Foundation, not against other
agrarian leaders. The fact that a persecutor has not opposed other
members of the same group suggests that the persecution was not on
account of that group membership. See Matter of R-A-, Interim
Decision 3403 (BIA 1999) (“If group membership were the motivation
behind his abuse, one would expect to see some evidence of it
manifested in actions toward other members of the same group.”).
Similarly, Ontunez offered no evidence suggesting that the
landlords would be happy to allow the campesinos to stay if their
leadership departed, as might be expected if the landlords were
motivated by his membership in the group of activist leaders.
Neither does his evidence suggest that the landlords would oppose
him if he were a member of the agrarian activists but not impeding
their plans for Las Delicias. Instead, Ontunez essentially
testified that the landlords only cared about getting Las Delicias
21
or an equivalent amount of cash.
Ontunez failed to present evidence that takes the crucial step
from persecution because of economic desire to persecution because
of membership in the group of land activists. The distinction is
not “metaphysical.” Because he has not demonstrated evidence so
compelling that reasonable factfinders could not find otherwise, we
affirm the decision of the BIA in this respect.
III. The Convention Against Torture
Ontunez's final arguments concern his claim for withholding of
deportation under the Convention Against Torture. He argues that
the BIA applied an incorrect legal standard to his case, and that
his evidence compels findings of fact different than those reached
by the BIA. We apply the same standards of review applied to the
BIA's holdings on asylum claims. See Carabajal-Gonzales v. INS, 78
F.3d 194, 197 (5th Cir. 1996) (discussing those standards);
Kamalthas v. INS, 251 F.3d 1279 (9th Cir. 2001) (applying same
standards to Convention review); Ali v. Reno, 237 F.3d 591 (6th
Cir. 2001) (generally applying the same standard to the
Convention). We must let stand a decision that an alien is not
eligible for admission to the United States unless that decision is
“manifestly contrary to law.” Ali, 237 F.3d at 596; 8 U.S.C. §§
1252(b)(4)(c).
a. Legal Review
Ontunez first argues that the BIA adopted the incorrect legal
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standard when it stated:
[T]he respondent must provide evidence that the torture
he fears at the hands of the Facusse Group or their hit
man would be “at the instigation of or with the consent
or acquiescence of” Honduran officials or persons acting
in an official capacity. 8 C.F.R. § 208.18(a)(1).
Because this statement did not include the burden of proof, which
8 C.F.R. § 208.16(c)(2) explains is “more likely than not,” Ontunez
asserts that the BIA applied an incorrect legal standard in
reviewing his evidence. We disagree. Not every explanation of law
must contain the burden of proof to be true, and the BIA's
statement is correct as far as it goes. Nothing in the BIA’s
opinion demonstrates that it misapplied the burden of proof. We
therefore reject this contention of Ontunez.
b. Factual Review
In order for Ontunez to succeed in his request for withholding
of removal based on the Convention, he must meet his burden of
showing that more likely than not he would be subjected to
“torture” upon his return. See 8 C.F.R. § 208.16(c)(2). Torture
is defined in 8 C.F.R. § 208.18(a)(1), which requires inter alia
that the “pain or suffering is 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.” The regulations
later clarify that “[a]cquiescence of a public official requires
that the public official, prior to the activity constituting
torture, have awareness of such activity and thereafter breach his
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or her legal responsibility to intervene to prevent such activity.”
8 U.S.C. § 208.18(a)(7). “Willful blindness” suffices to prove
“acquiescence.” See In re S-V-, Int. Dec. 3430 (BIA 2000) (en
banc).
The BIA rejected Ontunez's request for withholding of
deportation because he failed to show that Honduran public
officials would acquiesce in his torture. Specifically, the BIA
held that even if the landlords had general support in some sectors
of the Honduran government, that support alone did not establish
that Honduran officials would acquiesce in his torture. Ontunez
challenges this finding, pointing out other governmental
connections in his story: the police escort to the Mejia
assassination, the fact that the police never apprehended the
landlords for the assassination, the police clearing Las Delicias
in 1997, the impunity given the landlords while they persecuted
Foundation leaders, and the Honduran government's policy of
dislodging squatters. Ontunez claims all this evidence would
compel reasonable factfinders to find the necessary acquiescence by
the Honduran government.
We disagree that his evidence compels a different result than
the one reached by the BIA. First, while the police escort to the
Mejia assassination is troubling, the police ultimately arrested
Puerto, convicted him, and incarcerated him. Second, though the
landlords were not arrested for the crime after Puerto's
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confession, Ontunez's testimony that Melgar denied complicity in
the assassination provides at least some explanation why the
Honduran government did not prosecute or arrest them. Third,
Ontunez argues police complicity in the clearing of Las Delicias,
but he also testified that it was done pursuant to a court order.
We can hardly fault the Honduran police for enforcing court orders,
even though Ontunez claims the order was tainted. Fourth, the
Honduran government does indeed have a policy of dislodging
squatters, as noted in a State Department report, but Ontunez fails
to note that the report says that the government only dislodges
squatters who are on the land illegally, and does so with minimal
force. See United States Department of State, Honduras: Profile of
Asylum Claims & Country Conditions, January 1999, at 5-6. This
does not suggest they would turn a blind eye to torture. Finally,
the possible connection between Melgar and President Flores does
not compel a finding that the President would ignore torture,
especially in light of Ontunez's repeated testimony that the
landlords attempted to follow the legal process.
Ontunez has not presented evidence that compels a finding that
officials would acquiesce in “torture” committed by the landlords.
Accordingly, we will affirm the decision of the BIA.
Conclusion
Though Ontunez was placed in danger by his fight for Las
Delicias, he has not proffered evidence that compels a finding that
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the danger arose from his persecutors’ view of his political
opinions or his membership in the group of land activists. Neither
does the evidence compel the conclusion that the Honduran
government would acquiesce in acts of torture by the landlords.
Finally, we are not persuaded that the BIA made material legal
errors in its opinion. The decision of the BIA must therefore be
affirmed.
AFFIRMED
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