Roberto Bautista v. Alberto Gonzales ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-3525
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Roberto Tercero Bautista, *
*
Petitioner, *
* Petition for Review of an Order
v. * of the Board of Immigration
* Appeals.
Peter D. Keisler, Acting Attorney * [UNPUBLISHED]
General, *
*
Respondent. *
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Submitted: September 27, 2007
Filed: October 4, 2007
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Before BENTON, BOWMAN, and SHEPHERD, Circuit Judges.
PER CURIAM.
Roberto Tercero Bautista seeks review of a Board of Immigration Appeals
(BIA) order dismissing his appeal. Having jurisdiction under 8 U.S.C. §
1252(a)(2)(D), this court denies the petition for review.
Bautista, a Guatemalan, entered the United States on May 24, 1995 without
inspection. The government began removal proceedings on April 2, 1998. Admitting
removability, Bautista applied for asylum and withholding of removal, or
alternatively, voluntary departure.
On August 4, 2005, Bautista was the only witness at his hearing, and the source
of the facts in this paragraph. He lived with his mother in San Juan Ixcoy until he was
ten. During this time, guerrillas sent Bautista four notes threatening to kill him
because he had unintentionally lowered one of their flags. Due to these threats,
Bautista relocated to his sister’s village at the age of ten, and remained there for about
seven years. While there, he had no further contact with the guerrillas, but
encountered problems with gang members, who tried to force him into criminal
activities, such as selling drugs, kidnaping, and stealing. These problems motivated
Bautista’s brother to bring him to the United States in 1995. His mother continues to
receive anonymous telephone calls threatening him.
The immigration judge (IJ) denied asylum and withholding of removal, but
granted voluntary departure. The BIA affirmed and adopted the IJ’s decision, adding
its own reasoning. This court reviews both decisions. Nabulwala v. Gonzales, 481
F.3d 1115, 1117 (8th Cir. 2007).
Bautista contends that the IJ and BIA erred in holding that he failed to meet his
burden of proof for both the asylum and withholding of removal claims.1 Under the
substantial evidence test, this court defers “to the IJ’s findings of fact and disposition
of the case unless the record evidence is ‘so compelling that no reasonable factfinder
could fail to find [the petitioner] eligible for asylum [or] withholding of deportation.”
Onsongo v. Gonzales, 457 F.3d 849, 852 (8th Cir. 2006) (quoting Habtemicael v.
Ashcroft, 370 F.3d 774, 779 (8th Cir. 2004)).
1
In his brief, Bautista also claims the IJ and BIA erred in denying relief under
the Convention Against Torture. However, Bautista, through counsel, specifically
stated he was not seeking relief under the Convention (“[Question by IJ]: [A]re your
[sic] requesting Article 3 protection or not? [Answer by Bautista’s counsel]: I don’t
believe so, no.”). The IJ did not address the Convention, nor does Bautista’s brief to
the BIA. “Failure to raise an issue before the agency constitutes a failure to exhaust
administrative remedies and deprives this court of jurisdiction to hear the matter.”
Sultani v. Gonzales, 455 F.3d 878, 884 (8th Cir. 2006).
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The IJ rejected Bautista’s claims mainly due to a lack of credibility. The IJ
found Bautista not credible because his testimony was inconsistent with his
applications. The applications state that he continued to receive threats from the
guerrillas after relocating to his sister’s village, but he testified that any threats during
that period emanated from gangs, not guerrillas. The applications do not mention
physical mistreatment, but he testified he was beaten by gang members. In his brief,
Bautista does not challenge the adverse credibility finding, waiving any challenge to
it. See Chay-Velasquez v. Ashcroft, 367 F.3d 751, 756 (8th Cir. 2004). Bautista’s
testimony is his only evidence. Stripped of credibility, it does not meet the substantial
evidence test.
Alternatively, the IJ concluded that, even if Bautista were credible, he had not
made the requisite showing for either asylum or withholding of removal. The
Attorney General may grant asylum to an alien who is a “refugee,” defined as any
person who is unable or unwilling to return to his or her country 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. 8 U.S.C. §§
1101(a)(42)(A); 1158(b)(1)(A) (2006). Additionally, the Attorney General must grant
withholding of removal to an alien who establishes that, if returned to his or her native
country, he or she will face a clear probability of persecution on account of one of the
protected grounds. 8 U.S.C. § 1231(b)(3)(A) (2006); 8 C.F.R. § 1208.16(b) (2005).
As withholding of removal carries a higher burden, a petitioner who fails to establish
an asylum claim necessarily fails to establish a withholding of removal claim. Setiadi
v. Gonzales, 437 F.3d 710, 715 (8th Cir. 2006).
Even if Bautista’s testimony were credible, it is not substantial enough to
compel reversal. On appeal to the BIA, Bautista contended he was persecuted because
he was a member of a social group, law-abiding citizens. The BIA correctly decided
that such a group does not qualify as a particular social group for purposes of asylum
or withholding of removal, as it is too large and diverse. See Raffington v. I.N.S., 340
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F.3d 720, 723 (8th Cir. 2003). On appeal to this court, Bautista asserts for the first
time that he was and will be persecuted on account of his deceased father’s political
opinions, which the guerrillas impute to him. This assertion is not supported by the
record. Until this appeal, every time Bautista’s father was mentioned, he stated either
that he did not have a father or that his father was unknown. Therefore, Bautista has
not shown that the evidence is so compelling that no reasonable factfinder could fail
to find him eligible for asylum or withholding of removal.
The petition for review is denied.
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