Luis Gutierrez-Rostran v. Loretta Lynch , 810 F.3d 497 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-2216
LUIS GUTIERREZ-ROSTRAN,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A200-882-317
____________________
ARGUED DECEMBER 15, 2015 — DECIDED JANUARY 13, 2016
____________________
Before BAUER, POSNER, and HAMILTON, Circuit Judges.
POSNER, Circuit Judge. The petitioner, Luis Gutierrez-
Rostran, a Nicaraguan citizen, entered the United States ille-
gally in 2006, and decided to stay. Although his stated mo-
tive for immigrating was fear that the government of Nica-
ragua would encourage or condone his being murdered by
its supporters because of his and his family’s political views,
he did not make a timely application for asylum. See 8
U.S.C. § 1158(a)(2)(B).
2 No. 15-2216
In 2010 he was convicted of public intoxication and driv-
ing under the influence. After eight days in jail he was is-
sued a Notice to Appear for immigration proceedings and
released on bail the same day. Eventually he was ordered to
be removed to Nicaragua. He then applied for asylum under
8 U.S.C. § 1158, and for withholding of removal under 8
U.S.C. § 1231(b)(3)(A) (formerly 8 U.S.C. § 1253(h)(1)(1990))
in the alternative. To obtain the second form of relief he had
to show that his “life or freedom would be threatened in
[Nicaragua] because of [his] race, religion, nationality, mem-
bership in a particular social group, or political opinion.”
The immigration court turned him down and the Board of
Immigration Appeals affirmed, precipitating the petition for
review that brings his case to us.
He challenges both the denial of his untimely asylum ap-
plication and the denial of his claim for withholding of re-
moval. Regarding the former challenge, to prevail given the
untimeliness of the application he would have to show that
the immigration court or the Board had committed a legal
error, 8 U.S.C. § 1252(a)(2)(D); Restrepo v. Holder, 610 F.3d
962, 964–65 (7th Cir. 2010), and he hasn’t done that. He ar-
gues only that violence toward persons such as him has in-
creased in Nicaragua in recent years, thus justifying his be-
lated application. But unfortunately for him “issues of
changed or extraordinary circumstances are questions of fact
that lie outside the realm of § 1252(a)(2)(D).” Aimin Yang v.
Holder, 760 F.3d 660, 665 (7th Cir. 2014).
So we turn to his claim for withholding of removal, and
begin by sketching some essential background. Augusto
César Sandino was a Nicaraguan revolutionary who be-
tween 1927 and 1933 conducted a rebellion against the U.S.
No. 15-2216 3
military occupation of Nicaragua. He was assassinated in
1934 at the direction of Anastasio Somoza Garcia, who be-
came the nation’s ruler, succeeded by his sons after he was
assassinated. The Sandinista party, named in memory of
Sandino, rose up against the Somozas, and under the leader-
ship of Daniel Ortega wrested control of the country from
them. That happened in 1979 and Ortega ruled the country
as a dictator until 1990. He then permitted free elections, was
repeatedly defeated, and did not achieve his old authority
until he won (though with only a plurality of the votes) the
presidential election held in 2006. Since then his power has
been secure.
Ortega’s defeats in that interim period were by the Liber-
al Constitutionalist Party (known as PLC from the initials of
its Spanish name), then the main opposition party, and par-
ties allied to it, notably the Independent Liberal Party (the
PLI). Gutierrez-Rostran was active in one of those two par-
ties (though it’s unclear which one), as were his father, his
two brothers, and two uncles, one of them a mayor and the
other a PLC representative who, Gutierrez-Rostran testified,
“was to become a mayor as well.”
Because of the family’s intimate connections with a polit-
ical movement that had long delayed Ortega’s return to
power, both Gutierrez-Rostran and his two brothers fled the
country when Ortega was elected president in 2006, though
the brothers fled not to the United States but to Costa Rica
and Guatemala, respectively, and since fleeing have (for a
reason we’ll explain shortly) been able to make extended vis-
its to Nicaragua without being threatened or harassed.
In his hearing before the immigration court on his appli-
cation for withholding of removal, Gutierrez-Rostran testi-
4 No. 15-2216
fied that his family and members of the PLI had told him
that both his cousin and his friend had been murdered by
the Sandinistas—in fact by the son of one of President Orte-
ga’s bodyguards. Another friend of Gutierrez-Rostran, Ro-
gelio Ruiz-Sotelo, testified that the cousin had received
threats from Sandinistas, and though in response to the
threats he had moved to a far-off city in Nicaragua he never-
theless was murdered there. Ruiz-Sotelo further testified that
he’d attended the cousin’s funeral and heard things in the
city that convinced him that the murderer was a Sandinista.
(That testimony was hearsay, but hearsay is admissible in
immigration proceedings. N.L.A. v. Holder, 744 F.3d 425, 436
(7th Cir. 2014).) He also testified that, while a poll worker in
an election held in 2012, he had been stoned by Sandinistas
and forced to surrender his ballots to them, and that he had
complained to the authorities but both the captain of police
and the town’s mayor were Sandinistas and threatened to
kill him if he said anything about the attack against him. (On
the collaboration of Nicaraguan police in Sandinista violence
against political opponents, see, e.g., Tim Rogers, “6 Dead in
Post-Election Violence,” Nicaragua Dispatch, November 9,
2011, http://nicaraguadispatch.com/2011/11/6-dead-in-post-
election-violence/.)
The immigration judge who presided at Gutierrez-
Rostran’s hearing denied withholding of removal on the
ground that none of his immediate family members had
been harmed or even threatened, and that the various arti-
cles and reports he submitted about political violence be-
tween Sandinistas and members of the opposition parties fell
short of proving that it was more likely than not that he
would be persecuted if he returned to Nicaragua. The Board
affirmed the denial, discounting as “speculative” the conten-
No. 15-2216 5
tion that the cousin’s murder had been “at the hands of the
Sandinistas.”
The treatment by the immigration court and the Board of
the cousin’s murder was too cursory to justify denial of
Gutierrez-Rostran’s application for withholding of removal.
There was evidence of violence by Sandinistas against liberal
party members; the cousin was a liberal from a well-known
liberal family; and Gutierrez-Rostran’s testimony, Ruiz-
Sotelo’s testimony (including his testimony that public offi-
cials—a mayor and a police chief—had refused to protect
him against Sandinista harassment), and letters of Gutierrez-
Rostran’s parents and of PLI officials, made a prima facie
showing that Gutierrez-Rostran would be in great danger
were he to be returned to Nicaragua while the Sandinistas
are in power. Although Gutierrez-Rostran’s parents, broth-
ers, sisters, and uncles have not been persecuted, the parents
are old (his father is 78) and neither they nor his one surviv-
ing uncle nor the sisters nor the brothers—who, remember,
no longer live in Nicaragua—are politically active. An uncle
of Gutierrez-Rostran who had been a liberal mayor was al-
lowed to die in peace, but he too was old.
Neither the immigration judge nor the (as usual) single-
member “panel” of the Board of Immigration Appeals gave
a reason for doubting the weight or truthfulness of the evi-
dence, evidence from which an inference could be drawn
that Gutierrez-Rostran would indeed face a grave threat of
suffering his cousin’s fate were he forced to return to Nica-
ragua. Admissible, pertinent, credible evidence can’t just be
ignored, as the immigration court and the Board did in this
case; reasonable grounds must exist, and be articulated, to
justify rejection of such evidence. See, e.g., Yi-Tu Lian v. Ash-
6 No. 15-2216
croft, 379 F.3d 457, 461–62 (7th Cir. 2004). The immigration
judge stated in his opinion, and the Board registered no dis-
agreement, that Gutierrez-Rostran’s testimony was “inter-
nally consistent, consistent with his written statement, and
consistent with the other documents he submitted.” The
immigration judge also made no adverse credibility finding
with regard to Ruiz-Sotelo. Yet having indicated that he
thought Gutierrez-Rostran’s testimony had been credible
and not having suggested that Ruiz-Sotelo’s evidence was
not credible, the immigration judge contradicted himself by
saying that “there is no evidence to corroborate the respond-
ent’s belief that [his cousin and friend] were killed by the
Sandinista youth for their political beliefs.” Ruiz-Sotelo had
testified without contradiction that Sandinistas had threat-
ened and then killed the cousin and friend, and why would
Sandinistas have killed them other than for political reasons?
Against all this it can be argued that while the evidence
indicates danger to Gutierrez-Rostran if he is returned to
Nicaragua, it does not indicate that he is “more likely than
not” to be persecuted if he is sent there, which the Supreme
Court in INS v. Stevic, 467 U.S. 407, 424–25 (1984), held is the
standard of proof for withholding of removal. See also 8
C.F.R. § 1208.16(b)(2); Torres v. Mukasey, 551 F.3d 616, 625
(7th Cir. 2008). That of course is the normal civil standard of
proof. But it can’t be taken literally in the immigration con-
text. In an ordinary civil case there are witnesses, lay and/or
expert, on both sides of the case, and likewise documentary
evidence. But in the usual withholding-of-removal case, in-
cluding this case, the only evidence is presented by the al-
ien—and the immigration judge appears to have deemed
that evidence credible.
No. 15-2216 7
What is missing in a case like this are data that would
enable a rational determination of whether there was a
greater than 50 percent probability that the alien would lose
his life or his freedom if removed to his country of origin.
Rodriguez-Molinero v. Lynch, No. 15-1860, 2015 WL 9239398,
at *1 (7th Cir. Dec. 17, 2015). The first step in such an inquiry
would be to define the endangered group (obviously not all
the Nicaraguans who voted for PLC or PLI candidates) and
the second to determine what percentage of them have lost
their life or freedom at the hands of the Sandinistas, and also
whether that percentage is growing or declining (or not
changing). The immigrant is required to present evidence
that he faces a significant probability of persecution if he is
removed to his country of origin, and Gutierrez-Rostran did
present such evidence, as we have seen. He could not be ex-
pected to quantify the probability of his being persecuted or
killed should he be removed to Nicaragua. The data that
would enable such quantification appear not to exist, be-
cause to be reliable they would have to specify all persons
who had characteristics similar to those of the applicant for
withholding of removal and how many of them had been
killed or persecuted because of those characteristics. If such
data do exist somewhere, the immigration authorities or the
State Department may have access to them, but there is no
indication of that.
The immigration judge may have been acknowledging
the difficulty of taking the “more likely than not” standard
literally as a 50+ percent probability when he said that an al-
ien seeking withholding of removal could satisfy the stand-
ard of proof by demonstrating a “reasonable probability” of
persecution if removed to his country of origin. That de-
scription of the standard is a step in the right direction.
8 No. 15-2216
The denial of withholding of removal and the affirmance
of that denial by the BIA member who as the (entire) appeal
“panel” denied the petitioner’s appeal were not adequately
reasoned and so must be set aside and the case returned to
the Board for further proceedings consistent with this opin-
ion. The petition for asylum is dismissed, however, as noted
earlier in this opinion.