Batres-Portillo v. Gonzales ( 2007 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0376n.06
Filed: June 5, 2007
No. 06-3881
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Gil Batres Portillo,
Petitioner, ON PETITION FOR REVIEW FROM
THE BOARD OF IMMIGRATION
v. APPEALS
Alberto R. Gonzales,
Respondent.
Before: MARTIN and SUTTON, Circuit Judges; GRAHAM, District Judge*
OPINION
GRAHAM, District Judge. This is an appeal from an order of
the Board of Immigration Appeals (“BIA” or the “Board”) adopting
and affirming the decision of the Immigration Judge (“IJ”) which
denied Petitioner’s application for withholding of removal filed
pursuant to §241(b)(3) of the Immigration and Nationality Act
(“INA”), 8 U.S.C. §1231(b)(3).1 Petitioner is a 33-year-old native
and citizen of El Salvador who entered the United States illegally
through Nogales, Arizona on July 20, 1996. Petitioner contends
that he will be subject to persecution on account of political
opinion if he is forced to return to El Salvador. For the reasons
set forth below, we DENY the petition for review.
*
The Honorable James L. Graham, United States District Judge for the Southern
District of Ohio, sitting by designation.
1
The IJ also denied Petitioner’s application for asylum as it was untimely.
Petitioner does not contest this ruling on appeal. In addition, Petitioner withdrew his
application for relief under the Convention Against Torture in the proceedings before the
IJ.
I. STANDARD OF REVIEW
This court’s jurisdiction to review a removal order by the
Board is pursuant to Section 242 of the INA, which confers
jurisdiction on the Courts of Appeals to review final orders of
removal. See 8 U.S.C. §1252; Singh v. Aschcroft, 398 F.3d 396, 400
(6th Cir. 2005). We will reverse the Board’s determination against
withholding of removal only if it is “‘manifestly contrary to
law.’” Almuhtaseb v. Gonzales, 453 F.3d 743, 749 (6th Cir. 2006)
(quoting 8 U.S.C. §1252(b)(4)(C)). To reverse the Board’s
determination, this court must find that the evidence “‘not only
supports a contrary conclusion, but indeed compels it.’” Ouda v.
INS, 324 F.3d 445, 451 (6th Cir. 2003) (quoting Klawitter v. INS,
970 F.2d 149, 151-52 (6th Cir. 1992)). Stated differently, we will
only reverse where the evidence is “so compelling that no
reasonable factfinder could fail to find the requisite persecution
or fear of persecution.” Ouda, 324 F.3d at 451. We defer to the
administrative findings of fact except when any reasonable
adjudicator would be compelled to conclude to the contrary.
Almuhtaseb, 453 F.3d at 749. Where, as here, the Board adopts the
IJ’s reasoning, we review the IJ’s decision directly to determine
whether the Board’s decision should be upheld. Denko v. INS, 351
F.3d 717, 723 (6th Cir. 2003).
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Commencement of Removal
Removal proceedings began against Petitioner on December 30,
2003, when the former Immigration and Naturalization Service filed
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a Notice to Appear with the Immigration Court and charged that
Petitioner was subject to removal pursuant to INA §212(a)(6)(A)(I),
8 U.S.C. §1182(a). On September 21, 2004, Petitioner filed an
Application for Asylum and for Withholding of Removal
(“Application”). Petitioner represented in his Application that he
was seeking withholding of removal solely on the basis of his
membership in a particular social group. (Administrative Record
(“A.R.”) 131.) He did not indicate that he was seeking withholding
of removal on the basis of political opinion. (Id.) As the
justification for his application for such relief, Petitioner
stated that he had been kidnapped by and forced to join the FMLN
Communist guerrillas when he was 16 years old. He asserted that if
he is returned to his home country, he fears that he will be
mistreated by Mara Salvatrucha (“M/S”) gang members because he
refused to join them. As additional support for his Application,
Petitioner attached a Declaration in which he further articulated
his fear of the M/S gang members and his “terrible memories from
the civil war.” (A.R. 136-37.)
B. Merits Hearing Before the IJ
On March 25, 2005, the IJ conducted the final hearing on the
merits. At this hearing, Petitioner testified that during the
Salvadoran civil war, he was kidnapped from his home in the town of
Masahuat and forced to serve in a Communist guerrilla army.
Petitioner alleged that he was taught how to use weapons and how to
fight in battles. He said that he was regularly kicked and beaten
with rifle butts. Petitioner stated that he and the other
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conscripts were told that they should fight because it was a “good
thing to do,” and that they should be able “to die while [they]
were fighting.” (A.R. 72.) According to Petitioner, if he did not
listen to the guerrillas, they would beat him. Petitioner further
believed that the guerrillas would kill him if he fled.
Nevertheless, after approximately three months with the guerrilla
army, Petitioner fled and lived with a family in a town within El
Salvador called Nahualpa for one year. He then moved to a
different town in El Salvador, Pie de la Cuesta, where he safely
remained in the country from 1988 until 1996, when he entered the
United States illegally. According to Petitioner’s testimony
before the IJ, he fled El Salvador because he believed that after
the end of the civil war, the guerrillas had become gang members
and criminals who would continue to threaten his life.
After consideration of Petitioner’s testimony, the IJ found
that although Petitioner was credible, he had not demonstrated
eligibility for withholding. Petitioner was ineligible for
withholding because he failed to demonstrate that his past
detention by the guerrilla army was on account of one of the five
protected grounds which would entitle him to such relief.
Specifically, the IJ concluded that Petitioner’s past detention by
the guerrillas was not on account of political opinion or
Petitioner’s membership in a particular social group.
The IJ further determined that Petitioner failed to
demonstrate any future probability of persecution that exists for
him countrywide in El Salvador. He opined: “The Court is taking
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nothing away from [Petitioner’s] experience, yet, the clear
evidence . . . shows that the civil war is over, and that the
guerrillas are not targeting either former guerrillas who escaped
or former combatants against the guerrillas.” (A.R. 32.)
Additionally, to the extent Petitioner feared gang members in El
Salvador, the Immigration Judge noted that fear of rampant crime in
an alien’s home country is not one of the five statutory grounds
which would entitle Petitioner to withholding of removal. Finally,
the judge concluded that Petitioner was eligible for voluntary
departure.
C. Petitioner’s Appeals to the BIA and This Court
Petitioner filed a notice of appeal to the Board. On May 31,
2006, in a one-page order, the Board adopted and affirmed the
decision of the IJ and dismissed the appeal. Petitioner timely
filed a petition for review by this court. Petitioner contends
that his “forced conscription into the Salvadoran guerrilla army,
with beatings, exposure to combat, and threats of assassination of
those who flee the guerrillas,” constitutes persecution on account
of political opinion and that, consequently, he is eligible for
withholding of removal, despite the Supreme Court’s holding in INS
v. Elias-Zacarias, 502 U.S. 478 (1992).
Petitioner’s primary argument in this appeal is that he was
persecuted on account of imputed political opinion, that is, that
he was persecuted by the guerrillas either because they perceived
him to be sympathetic to their cause or because he could be forced
to adopt their position. In response, the Government asserts,
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first, that this court should not consider Petitioner’s imputed
political opinion argument because he failed to exhaust his
administrative remedies with respect to this claim. Second, the
Government contends that because the imputed political opinion
argument is the primary claim raised in Petitioner’s brief before
this court, Petitioner has abandoned or waived any challenge to the
IJ’s conclusion that he did not face a clear probability of future
persecution. Finally, the Government argues, in the alternative,
that even if this court reviews this case on its merits, Petitioner
has failed to establish that the record compels reversal of the
final removal order.
III. ANALYSIS
A. Withholding of Removal Statutory Framework and Burden of Proof
Petitioner seeks this court’s review of the Board’s denial of
his request for withholding of removal under INA §241(b)(3), 8
U.S.C. §1231(b)(3). Withholding of removal is required if the
alien can demonstrate that “‘his or her life or freedom would be
threatened in the proposed country of removal on account of race,
religion, nationality, membership in a particular social group, or
political opinion.’” Liti v. Gonzales, 411 F.3d 631, 640 (6th Cir.
2005) (quoting 8 C.F.R. §1208.16(b)). To qualify for withholding
of removal, Petitioner must demonstrate that there is a “‘clear
probability that he will be subject to persecution if forced to
return to the country of removal.’” Singh, 398 F.3d at 401
(quoting Pilica v. Ashcroft, 388 F.3d 941, 951 (6th Cir. 2004)).
To establish a clear probability, Petitioner must demonstrate that
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it is more likely than not that he will be persecuted upon return.
Liti, 411 F.3d at 641. A petitioner who demonstrates that he has
suffered past persecution on account of a protected ground is
entitled to a rebuttable presumption that he faces future
persecution. Almuhtaseb, 453 F.3d at 750.
B. Petitioner’s claim of persecution on account of political
opinion was sufficiently exhausted.
Before a federal court may assert jurisdiction over an appeal
from a removal order, the alien must have exhausted all his
administrative remedies. 8 U.S.C. 1252(d)(1). This circuit has
interpreted the exhaustion requirement to mean that the petitioner
must “first argue the claim before the IJ or the BIA before an
appeal may be taken.” Csekinek v. INS, 391 F.3d 819, 822 (6th Cir.
2004); Coulibaly v. Gonzales, No. 05-4333, 2007 U.S. App. LEXIS
6628, at *3 (6th Cir. Mar. 16, 2007)(declining jurisdiction where
there was “no evidence in the record that petitioner ever presented
these claims to either the Immigration Judge or the Board of
Immigration Appeals”). The purpose of the exhaustion requirement
of §1252(d)(1) is: 1) “to ensure that the INS, as the agency
responsible for construing and applying the immigration laws and
implementing regulations, has had a full opportunity to consider a
petitioner’s claims; 2) to avoid premature interference with the
agency’s processes; and 3) to allow the BIA to compile a record
which is adequate for judicial review.” Ramani v. Ashcroft, 378
F.3d 554, 559 (6th Cir. 2004) (internal quotations omitted). We
conclude that these purposes are satisfied here and that Petitioner
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sufficiently exhausted his administrative remedies with regard to
this claim because: 1) the IJ ruled on the issue of persecution on
account of political opinion; 2) Petitioner’s claims of persecution
on account of membership in a particular social group and political
opinion are premised upon the same facts and evidence that were
presented to both the IJ and the Board; and 3) the precise issue of
imputed political opinion was raised in Petitioner’s brief before
the Board.
Although Petitioner did not raise the argument of persecution
on account of political opinion before the IJ, based upon
Petitioner’s testimony, we think it is fair to say that the IJ
nevertheless recognized or anticipated the potential for such an
argument and decided to rule upon it. Relying upon the Supreme
Court’s holding in Elias-Zacarias, the IJ correctly noted that it
is well settled that a person recruited into the ranks of rebels
does not in and of itself constitute persecution on account of
political opinion. See Elias-Zacarias, 502 U.S. at 482-83. The IJ
thus determined that because Petitioner had not articulated any
political opinion that would establish that his recruitment was for
anything other than to swell the ranks of the guerrilla army, he
had not met his burden of proving persecution on account of
political opinion.
In his brief to the Board, Petitioner challenged the IJ’s
conclusion that he had failed to demonstrate persecution on
account of either his membership in a particular social group or
his imputed political opinion. Petitioner stated:
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[Petitioner] believes that he did suffer past persecution
– surely being a child victim of kidnapping, being forced
to live in the hills with guerrillas, exposed to combat
and other dangers qualifies as persecution – on account
of either his membership in a particular social group or
his imputed political opinion.
(A.R. 6) (emphasis added.) Petitioner set forth the same facts
about his experience with the guerrilla army which were presented
to the IJ, but argued specifically in support of a finding of
persecution on both grounds. Petitioner stated:
They grabbed him, as opposed to other citizens of El
Salvador, because he was a healthy young man who was
within easy reach – he lived in Masahuat, one of the most
conflicted areas of the country, so he was close at hand.
. . . Thus [Petitioner] was persecuted not necessarily
because of his political opinion, but because he was a
member of a particular social group: young men living in
hotly contested war zones who are easy to kidnap.
* * *
Moreover, if we could turn the clock back and interview
the FMLN guerrillas, they would surely be certain that
since [he] was a Salvadoran peasant, then he must support
them politically – or if he didn’t, he should. They
didn’t kidnap young men who they thought would turn out
to be their enemies.
(A.R. 6.) Petitioner specifically challenged the IJ’s reliance
upon Elias-Zacarias to determine that he had not demonstrated
persecution on account of political opinion. Thus, we conclude
that Petitioner sufficiently exhausted his claim of persecution on
account of political opinion for us to exercise jurisdiction over
his petition.
C. Petitioner has proffered no evidence which would compel
reversal of the Immigration Judge’s determination that he
failed to prove persecution on account of political opinion –
imputed or actual.
1. Petitioner failed to prove past persecution on account of
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political opinion.
In the proceedings before the IJ, Petitioner testified at
length about his experiences with the guerrilla army in El
Salvador. Petitioner stated that he had been kidnapped by the
guerrilla army and had been taught how to use various weapons to
fight. Petitioner testified that he was taken into custody so that
he could learn how to fight on behalf of the guerrillas in
furtherance of their goal of increasing the area that they
controlled. On consideration of Petitioner’s testimony regarding
this detention by the guerrillas, the IJ stated in his order that
Petitioner “[had] articulated no political opinions.” (A.R. 28.)
Even on Petitioner’s appeal to the Board, he offered nothing but
his conjecture as to the possible motive of the guerrillas in
kidnapping Petitioner. Petitioner stated in his brief: “[I]f we
could turn the clock back and interview the FMLN guerrillas, they
would surely be certain that since [Petitioner] was a Salvadoran
peasant, then he must support them politically – or if he didn’t,
he should.” (A.R. 6.) This conjecture, without more, is
insufficient to prove the guerrillas’ motive. Indeed, the Supreme
Court in Elias-Zacarias stated that because the statute makes
motive critical, a petitioner “must provide some evidence of it,
direct or circumstantial. And if he seeks to obtain judicial
reversal of the BIA’s determination, he must show that the evidence
he presented was so compelling that no reasonable factfinder could
fail to find the requisite fear of persecution.” Elias-Zacarias,
502 U.S. at 483-84. This, Petitioner has failed to do.
10
In his brief before this court, Petitioner attempts to
distinguish his case from Elias-Zacarias; however, his attempts are
unavailing. Petitioner argues that his treatment by the Salvadoran
guerrilla army was more severe than that accorded to Elias-Zacarias
by the Guatemalan guerrillas. Yet, Petitioner misses the point of
the Supreme Court’s holding in Elias-Zacarias, which did not turn
on the degree of the persecution, but the motive for the
persecution. Like the petitioner in Elias-Zacarias, Petitioner
here failed to articulate, before either the IJ or the Board, any
political opinion that would establish that his recruitment was for
anything other than to swell the ranks of the guerrilla army.
Petitioner similarly failed to demonstrate with sufficient evidence
that the guerrilla army imputed any political opinion to him that
served as the motive for his kidnapping and detention. Therefore,
we find that the evidence presented in this case does not compel a
conclusion contrary to that of the IJ.
2. Because Petitioner failed to prove past persecution on
account of political opinion, or any other protected
ground,2 he is not entitled to a presumption of future
persecution on the same basis.
In his brief before this court, Petitioner argues that because
he has suffered past persecution, he is presumed to be at risk of
future persecution, and is therefore eligible for withholding of
removal. When an applicant for withholding is determined to have
2
Petitioner does not challenge before this court the IJ’s conclusion that he did
not suffer persecution on account of his membership in a particular social group. This
court has held that “it is proper for an appellate court to consider waived all issues
not raised in an appellant’s briefs.” Ramani, 378 F.3d at 558 (citing Farm Labor
Organizing Comm. v. Ohio State Highway Patrol, 308 F.3d 523, 528 n.1, 544 n.8 (6th Cir.
2002)). Petitioner’s failure to address the IJ’s determination with regard to persecution
on account of membership in a social group constitutes waiver.
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suffered past persecution in the proposed country of removal, on
account of a protected ground, it is presumed that the applicant’s
life or freedom would be threatened in the future in the country of
removal. See Almuhtaseb, 453 F.3d at 750 (citing 8 C.F.R.
§208.16(b)(1)(I)).3 This presumption may be rebutted if the IJ
finds by a preponderance of the evidence that: 1) there has been a
fundamental change in the circumstances such that the applicant’s
life or freedom would not be threatened on account of one of the
statutorily protected grounds; or 2) the applicant could avoid a
future threat to his life or freedom by relocating to another part
of the proposed country of removal and, under all the
circumstances, it would be reasonable to expect the applicant to do
so. 8 C.F.R. §1208.16(b)(1). Because the IJ correctly found that
Petitioner failed to prove past persecution on account of a
statutorily protected ground, Petitioner is not entitled to the
benefit of this presumption.
We also note that after determining that Petitioner’s past
detention was not on account of one of the five protected grounds,
the IJ also found that: 1) the Salvadoran civil war has ended and
the guerrillas are not targeting former guerrillas who escaped or
former combatants against the guerrillas and 2) Petitioner could
avoid a future threat by living in some other part of El Salvador,
as he safely did for at least eight years prior to coming to the
United States. Thus, any presumption to which Petitioner might
otherwise have been entitled had he proven persecution on account
of a protected ground, nevertheless would have been rebutted by the
clear evidence before the IJ.
3
Although the Almuhtaseb court applied 8 C.F.R. §208.16, the relevant regulation
in this case is 8 C.F.R. §1208.16, which applies to proceedings before the Board. See
Huang v. INS, 436 F.3d 89, 90, n.1 (2d Cir. 2006). However, the language of these
regulations is identical, and cases construing §208.16(b)(1) are thus instructive in the
instant case.
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D. The evidence does not compel reversal of the Immigration
Judge’s determination that Petitioner failed to prove a clear
probability of future persecution in El Salvador.
The Government contends that Petitioner has waived any
challenges to the IJ’s conclusion that he did not face a clear
probability of future persecution. Yet, Petitioner does challenge
this determination by attempting to rely upon the presumption of
future persecution. As discussed, supra, however, Petitioner’s
reliance on this presumption is unavailing.
The record is devoid of any evidence other than Petitioner’s
conclusory testimony to support the contention that the guerrillas
have become gang members who will harm him because he fled. In
fact, there is evidence to the contrary. The IJ relied upon
findings from a State Department Report, the validity of which
Petitioner does not challenge here, in determining that “there is
no evidence that the guerrillas, who are now disbanded and part of
the political process in El Salvador, are targeting escapees from
their ranks or people who fought against them.” (A.R. 29.) We
agree with the IJ that Petitioner’s claim that he will be harmed by
the gang members is severely undermined by Petitioner’s own
testimony that he safely remained in the country for several years
after he fled. The IJ also opined that to the extent Petitioner
fears gangs, criminal activity is not a basis for withholding of
removal. (A.R. 33) (citing Olivia-Muralles v. Ashcroft, 328 F.3d
25 (1st Cir. 2003)); see also Konan v. AG of the United States, 432
F.3d 497, 506 (3d Cir. 2005) (stating that “general conditions of
civil unrest or chronic violence and lawlessness do not support
13
asylum”). The record supports the Board’s conclusion that
Petitioner failed to meet his burden of proof that he will be
subject to persecution if he is returned to El Salvador.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the Board’s decision and
DENY Petitioner’s request for review.
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