Santiago Pablo-Sanchez v. Eric H. Holder, Jr. ( 2010 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0087p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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SANTIAGO PABLO-SANCHEZ, MARIA
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CONSUELO BARRERA-NAVA, FANY PABLO-
BARRERA, REYNA PABLO-BARRERA, JORGE -
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No. 09-3301
PABLO-BARRERA, SANTIAGO PABLO-
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Petitioners, -
BARRERA,
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v.
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Respondent. -
ERIC H. HOLDER, JR., Attorney General,
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On Petition for Review of an Order
of the Board of Immigration Appeals.
Nos. A095-394-346/347; A072-415-044/045/046/047.
Argued: March 9, 2010
Decided and Filed: March 30, 2010
Before: GIBBONS, SUTTON and WHITE, Circuit Judges.
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COUNSEL
ARGUED: E. Dennis Muchnicki, LAW OFFICE, Dublin, Ohio, for Petitioners. Jeffrey R.
Meyer, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent. ON BRIEF: E. Dennis Muchnicki, LAW OFFICE, Dublin, Ohio, for
Petitioners. Jeffrey R. Meyer, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
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OPINION
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SUTTON, Circuit Judge. Santiago Pablo-Sanchez, his wife and four children, all
natives and citizens of Mexico, ask us to review a decision of the Board of Immigration
Appeals denying withholding of removal. Because the BIA permissibly determined that
1
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Pablo-Sanchez did not suffer mistreatment on account of his political opinions, we deny the
petition.
I.
In 1994, Pablo-Sanchez, a well-to-do artist and business owner, campaigned as the
Green Party candidate for a seat in Mexico’s Congress. His campaign encountered stiff
opposition from the then-incumbent PRI party. Hecklers, says Pablo-Sanchez, threatened
him at his campaign rallies, and he received phone messages demanding that he “stop
participating with this party or things w[ill] not go well for [your] family.” A.R. 177. One
of the hecklers, whom Pablo-Sanchez believes was affiliated with the PRI, had a distinctive
voice, which Pablo-Sanchez described as “hoarse and deep . . . and strident.” A.R. 179.
Pablo-Sanchez lost the election and soon left the Green Party due to the harassment.
In March 1996, about a year and a half later, Pablo-Sanchez visited a bank. After
he left the bank carrying a large amount of cash, muggers covered his face and assaulted and
robbed him. As his assailants beat him, Pablo-Sanchez says he heard one of the muggers say
in a familiar voice, the same one he remembered from the campaign trail, “is that what you
wanted, huh, is that what you were asking for, you want more of this.” A.R. 180–81. Later,
in November of that year, Pablo-Sanchez was mugged and beaten a second time, again,
according to his original application, after going to a bank, and again he heard “exactly the
same voice” threaten him during the assault. A.R. 181. During roughly the same time
period, a telephone caller with the familiar deep voice threatened Pablo-Sanchez and his
family. Pablo-Sanchez reported the muggings and threatening phone calls to the police, but
he had “little information for them,” and they never caught the criminals. A.R. 264. The
police did not investigate his claims, he believes, because he did not bribe them.
In April 1997, Pablo-Sanchez left Mexico and illegally entered the United States.
His wife and children remained in Mexico while gathering resources to come to the United
States, and they continued to receive threatening phone calls. Maria Consuelo Barrera-Nava,
Pablo-Sanchez’s wife, testified that the phone calls began to include details such as what she
was wearing that day and what time she had arrived home, suggesting that the individuals
responsible for the call were watching her home. Barrera-Nava described the telephone
harasser as having “a hoarse voice but it was at the same time strident.” A.R. 214. The
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harassment peaked when, after a telephone message promising a “visit,” an intruder entered
the family’s home at night and raped Barrera-Nava. A.R. 214–15. When she reported the
sexual assault to the police, they “laugh[ed]” and “li[t] a cigarette.” A.R. 216. In January
1998, Barrera-Nava and the children illegally entered the United States, joining Pablo-
Sanchez.
In January 2002, Pablo-Sanchez applied for asylum. He waited nearly five years to
file his application, he says, because he could not find anyone bilingual until then. In his
2002 application, he enlisted the help of “Mr. Viatoro,” who promised to be a “notario”
versed in immigration law. A.R. 185, 202. Signed by Pablo-Sanchez alone, the application
said nothing about political activity or persecution but instead said that “criminals” were
responsible for the harassment. A.R. 447–49. At Viatoro’s advice, Pablo-Sanchez says, he
omitted any mention of politics. When interviewed by an asylum officer in July 2005,
Pablo-Sanchez claimed not to have been involved in politics but instead said he fled from
Mexico due to frequent criminal activity against business owners.
In June 2006, Pablo-Sanchez amended his asylum application, this time with the help
of counsel. While his original application emphasized that he was on business when mugged
and included no mention of the recognizable voice, his amended application described his
political activities in detail and did not say that criminals targeted him due to his business
interests.
In April 2007, Pablo-Sanchez and his family appeared before the IJ and testified
consistently with the amended application, conceding removability, but asking for asylum,
withholding of removal and protection under the Convention Against Torture. The IJ
rejected the asylum application because Pablo-Sanchez had waited more than one year after
entering the country to file it. See 8 U.S.C. § 1158(a)(2)(B). Because Pablo-Sanchez’s
hearing testimony and amended application differed so dramatically from his original
application, the IJ found that Pablo-Sanchez was not a credible witness and denied
withholding of removal on that ground. Alternatively, the IJ concluded that, even if Pablo-
Sanchez’s testimony had been credible, he was not entitled to withholding of removal
because the alleged harassment was not “on account of” his political opinions. 8 U.S.C.
§ 1101(a)(42)(A); see id. §§ 1158(b)(1)(B), 1231(b)(3). As for the claim under the
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Convention Against Torture, the IJ ruled that Pablo-Sanchez had not proved that he or his
family faced torture at the hands of, or with the acquiescence of, public officials.
Pablo-Sanchez appealed the IJ’s decision to the Board of Immigration Appeals.
Although the Board thought the IJ had erred in disbelieving Barrera-Nava’s rape testimony,
it affirmed his credibility determination as to Pablo-Sanchez, reasoning that the IJ had “not
unreasonabl[y]” interpreted Pablo-Sanchez’s inconsistent accounts. A.R. 5. It alternatively
agreed with the IJ that, even assuming credibility, Pablo-Sanchez had not proved (1) that he
and his family suffered past persecution on account of his politics, (2) that he and his family
faced a likely threat to their lives and freedom upon return to Mexico on account of his
politics, (3) that he could not avail himself of protection from the Mexican government and
(4) that he and his family qualified for protection under the Torture Convention. Pablo-
Sanchez timely seeks review of the Board’s decision, challenging only the adverse
credibility determination and the denial of withholding of removal.
II.
Because the Board “issue[d] a separate opinion, rather than summarily affirming”
and adopting the IJ’s decision, we review the Board’s decision “as the final agency
determination.” Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009). We review agency
factual findings, whether made by the Board or the IJ, under the deferential substantial-
evidence standard, meaning that the findings are “conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see
Khalili, 557 F.3d at 435; Ben Hamida v. Gonzales, 478 F.3d 734, 736 (6th Cir. 2007)
(factual findings include credibility determinations).
To qualify for withholding of removal, Pablo-Sanchez must demonstrate that he
faces a “clear probability” of “persecution” based on his “race, religion, nationality,
membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A);
Kouljinski v. Keisler, 505 F.3d 534, 544 (6th Cir. 2007). The “clear probability” standard
asks more of the applicant than the “reasonable possibility” standard for obtaining asylum
because it requires the applicant to show that “it is more likely than not” that his life or
freedom would be threatened by persecution if he returned to his home country. Al-
Ghorbani v. Holder, 585 F.3d 980, 993–94 (6th Cir. 2009) (quotation marks omitted). An
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applicant who proves past persecution on account of his political opinion merits a
presumption of a “well-founded fear of [suffering] future persecution.” 8 C.F.R.
§ 208.13(b)(1). In this instance, Pablo-Sanchez challenges the BIA’s resolution of his
arguments about past persecution, arguing that the evidence established past persecution
based on a protected ground and therefore entitled him to a presumption of future
persecution.
Under these circumstances, to be eligible for relief or at least further inquiry on
remand, Pablo-Sanchez must show that a reasonable adjudicator would be compelled to
conclude that (1) his testimony was credible and (2) he suffered from past persecution based
on his political opinions. If he fails on either point, his petition must be rejected.
Even if we accept Pablo-Sanchez’s credibility for the sake of argument, he cannot
show that the evidence compels us to conclude that his past mistreatment was on account of
his political opinion. A petitioner must provide some evidence of his persecutor’s motive,
“direct or circumstantial.” I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483 (1992). “[I]t is not
enough to present evidence that the applicant had a political opinion . . . . Evidence must
be presented which suggests that the applicant was persecuted on account of or because of
the political opinion.” Marku v. Ashcroft, 380 F.3d 982, 986 (6th Cir. 2004).
The sole link between Pablo-Sanchez’s political opinions and the assaults and
threatening phone calls was a deep and strident voice he thought he recognized from one of
his campaign rallies 18 months earlier. Inferring a motive from this kind of evidence
requires several inferential leaps that strain the boundaries of circumstantial evidence. More
to the point, any inferences we might draw from this effort at voice identification turn on
permissible inferences, not mandatory ones.
Even if we assumed that Pablo-Sanchez’s harasser and the campaign rally heckler
were one and the same, we still would have to infer that he assaulted and robbed Pablo-
Sanchez out of political animus. That must be the case, Pablo-Sanchez says, because he
“had no other enemies.” A.R. 182. But one does not need an enemy to be the victim of a
robbery. One needs money. And Pablo-Sanchez had plenty of that when he was mugged,
because he had just left a bank after making substantial cash withdrawals before the first
robbery and, according to his original application (and not contradicted in his second), he
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had just left a bank before the second robbery. Thus, when the assailants targeted Pablo-
Sanchez for robbery and telephone harassment, it is just as likely (if not more likely) that
they were motivated by his wealth as by the partisan affiliation he had renounced 18 months
earlier. So long as that is the case, it is not possible to second guess the BIA’s judgment on
the ground that a reasonable adjudicator would be “compelled to conclude to the contrary.”
While the sexual assault against Pablo-Sanchez’s wife was a far more offensive
crime, it has a far more attenuated connection to his political opinions. Barrera-Nava “kept
a distance” from her husband’s political activities, A.R. 211, and linked her telephone
harasser to her husband’s politics only by offering a description of a deep voice that matched
the description offered by Pablo-Sanchez. Perhaps as a result, one might say, she could link
her rape to the telephone harassment. But she offered no description of the rapist’s voice,
much less any reason for thinking that the rapist was motivated by political animus, as
opposed to the perversity normally underlying such crimes.
Pablo-Sanchez is right that the “context of the applicant’s situation,” Gilaj v.
Gonzales, 408 F.3d 275, 285 (6th Cir. 2005) (per curiam), may permit the Board to connect
the dots of circumstantial evidence and find persecution on account of a protected ground,
see Bu v. Gonzales, 490 F.3d 424, 430 (6th Cir. 2007). But to say that the Board could find
circumstantial proof of persecution in a given case is not to say that it must—and that,
regrettably for Pablo-Sanchez, is the only inquiry with which we are tasked.
But wait, Pablo-Sanchez says, there is more: In rejecting his petition, the Board
“[i]nvented” a “novel, unprecedented position that there is no nexus between persecution and
a protected ground unless the persecutor stat[ed] his motivations while . . . in the act of
persecuting.” Br. at 20, 22. That, indeed, would be a novel rule—and an incorrect one to
boot. While it often will be the case that the surrounding circumstances of an act of
persecution (a physical assault during a demonstration or the words accompanying a
physical assault after a demonstration) will reveal a persecutor’s motive, that need not
always be the case. What is a frequent way of proving motive is not the only way. One
premise of Pablo-Sanchez’s argument, then, is correct.
The other premise is not, however. The Board never announced any such rule. In
full, its two-paragraph analysis of the past-persecution claim reads:
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Even if we assume the respondent is credible, the Immigration Judge did not
err in concluding that the respondent failed to provide a nexus between his
political affiliation and the events that occurred in Mexico (NOA; I.J. at 17,
19). In order to demonstrate that an applicant has been persecuted on
account of a political opinion, evidence must be presented which suggests
that the applicant was persecuted “on account of” the actual or imputed
political opinion. See Marku v. Ashcroft, 380 F.3d 982, 986 (6th Cir. 2004).
Thus, an applicant must show that his actions were interpreted as political
by the alleged persecutors. See id. at 987. An applicant is not expected to
provide direct proof of the alleged persecutor’s motive, but must show some
evidence of it, direct or circumstantial (Respondent brief at 19). Id.
In this case, the lead respondent testified that during his alleged incidents of
physical harm, he recognized the deep, hoarse voice of the political
opponent previously heard while he campaigned as a Green Party candidate
in 1994 (Respondent brief 19; Tr. at 38, 41–44, 57–60). The lead
respondent also stated that but for his political activities which ended in
1994, he had no reason to suffer or fear harm (Respondent brief at 19; I.J.
at 6; Tr. at 44–45). The lead respondent’s wife also stated that the telephone
threats she received after April 1997, and the voice heard outside her house,
were from a man with the same hoarse, deep voice described by her husband
(Respondent brief at 19; Tr. at 75–76). The lead respondent’s wife related
that she believed she identified her rapist because on one occasion, the caller
with the hoarse, deep voice, expressed that she would be receiving a visitor
(Respondent Br. at 19; Tr. at 81). The respondents’ beliefs however are
insufficient to establish the motive of the attackers. In this respect, the
Immigration Judge stated that even if a political opponent was responsible
for physically harming the respondents, specific references to the
respondents’ actual or imputed political opinion or membership in a
particular social group were never uttered during the aforementioned
incidents (Respondent brief at 5–6, 11–12, 20; I.J. at 5, 11, 17–18; Tr. at
42–43, 46, 74, 81). Therefore, the Immigration Judge’s finding that the lead
respondent had not provided a nexus between the harm suffered and a
protected ground is not erroneous.”
A.R. 5.
The first paragraph of this analysis describes the legal requirements for establishing
a claim of past persecution, and the Board plainly invents no new rule of proof in doing so.
It correctly says that “[a]n applicant is not expected to provide direct proof of the alleged
persecutor’s motive,” whether before, during or after the persecution, “but must show some
evidence of it, direct or circumstantial.” (Emphasis added). That an applicant need not
provide “direct proof” of motive negates the subsidiary possibility of requiring an applicant
to provide direct proof during the act of persecution. The second paragraph of this analysis
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applies the law to the facts, and the Board properly explains that the record contains no
evidence of motive since Pablo-Sanchez’s short stint in politics in 1994, including any
evidence of motive that could have come during the acts of violence and harassment.
If read by themselves, it is true, the last two sentences of the second paragraph might
support Pablo-Sanchez’s reading. But context is everything. When read in the surroundings
of the full two-paragraph analysis, the two sentences do not indicate that the Board, in
applying the law to the facts of the case, suddenly invented a new persecutor-motive rule.
The Board does not cite any cases, only the record, in making these points, indicating it was
applying the previously announced, and correctly announced, legal principles identified in
the first paragraph of its analysis. One of the record citations, moreover, is to the IJ’s
opinion at the very pages (IJ at 17–18) where the IJ properly speaks about the absence of any
evidence of political motive in connection with any of the assaults and where the IJ does not
say that cognizable evidence of political motive may arise only during an act of persecution.
See Khalili, 557 F.3d at 435 (“To the extent the BIA adopted the immigration judge’s
reasoning, however, this Court also review the immigration judge’s decision.”); Joseph v.
Attorney General, 421 F.3d 224, 226 n.4 (3d Cir. 2005) (“Although we are reviewing the
decision of the BIA, not that of the IJ, the BIA’s ruling cannot be understood in a vacuum,
given its analysis. Thus, we must refer to the IJ’s analysis in order to provide the proper
context and background for our analysis of the BIA’s ruling.”).
When all is said and done: the alleged persecution took place more than a year and
a half after Pablo-Sanchez ended his brief foray in politics; the evidence of motive required
the factfinder to jump through several inferential hoops; and run-of-the-mine criminal
depravity by itself provides at least as plausible an explanation, if not a more plausible
explanation, for the unfortunate mistreatment of Pablo-Sanchez and his family. That does
not suffice to conclude that the Board necessarily decided this case wrongly.
III.
For these reasons, we deny the petition for review.