Saul Gutierrez-Olivares v. Michael B. Mukasey , 533 F.3d 946 ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-2321
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Saul David Gutierrez-Olivares, *
*
Petitioner, *
* Petition for Review of an
v. * Order of the
* Board of Immigration Appeals.
1
Michael B. Mukasey, Attorney General, *
*
Respondent. *
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Submitted: April 18, 2008
Filed: July 18, 2008
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Before WOLLMAN, BEAM, and RILEY, Circuit Judges.
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WOLLMAN, Circuit Judge.
Saul David Gutierrez-Olivares, a citizen and native of Peru, seeks review of an
order of the Board of Immigration Appeals (BIA) that affirmed the decision of an
immigration judge (IJ) denying his application for asylum and withholding of removal
and ordering his removal to Peru. We dismiss the asylum claim for lack of
jurisdiction and deny the petition for review of the withholding of removal claim.
1
Michael B. Mukasey, now Attorney General of the United States, is
substituted as respondent pursuant to Federal Rule of Appellate Procedure 43(c)(2).
I.
Gutierrez-Olivares entered the United States on a one-month tourist visa in
March 2002. He remained and worked in the United States after the expiration of his
visa, and the government initiated removal proceedings against him in July 2004.
Gutierrez-Olivares admitted his removability, but applied for asylum in February
2005, claiming that he had suffered past persecution in Peru on account of his political
opinion and membership in a particular party and feared future persecution if he
returned.
At his removal hearing in February 2006, Gutierrez-Olivares testified to the
following. From 1991 until 2000, he had a one-hour weekday morning radio program
wherein he gave news commentary and criticized corrupt practices of then-Peruvian-
president Alberto Fujimori and of the local government in his province of Campana,
Peru. His program was unpopular with those whom he criticized, and he was
assaulted once on the street by two men he later identified as working with the mayor.
He suffered a few blows that resulted in bruises and did not require medical attention.
The radio station was vandalized by the mayor and his supporters, but Gutierrez-
Olivares was not present at the time and the owner obtained a court judgment for the
damage. In 1994, Gutierrez-Olivares became the mayoral candidate for a small local
political group. During his candidacy, he was threatened that if he did not withdraw
from the election, he would be forcibly removed. Some of his campaign flyers and
posters were vandalized, and unidentified people would throw stones at his windows
and knock on his door at night. The police failed to bring any of the vandals to
justice. Gutierrez-Olivares did not withdraw from the race, but was not elected. In
1998, he ran again. His campaign meeting-place was vandalized and some of his
supporters, but not Gutierrez-Olivares, were injured in the fracas. His supporters
recognized the vandals as supporters of the pro-Fujimori mayoral candidate, to whom
Gutierrez-Olivares lost the election.
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Gutierrez-Olivares joined the anti-Fujimori Peru Posible party in 1999. In
2000, he attended an anti-Fujimori counterdemonstration in Arequipa at which
violence broke out, resulting in the arrest of some eighty to one-hundred people from
his party. Those arrested were injured, jailed, prosecuted, and/or released. Gutierrez-
Olivares was not arrested, but was afraid to return to Campana for two weeks, after
which he left for the United States for the first time. He returned to Peru in December
2000, after Fujimori had fled the country.
The leader of the Peru Posible party, Alejandro Toledo, was elected president
in 2001. Some of Fujimori’s supporters remained in Campana’s local government,
however, and Gutierrez-Olivares received threats against himself and his family. He
sent his two eldest children to study abroad and his wife and youngest child to live in
Arequipa. Gutierrez-Olivares remained in Campana until his final entry into the
United States in March 2002, vacationing once in the United States in the interim. He
testified that he intended to return to Peru when the political climate was more
hospitable. In 2003, his wife was appointed head of the municipal public welfare
program in Campana, replacing the man who had threatened Gutierrez-Olivares
during his 1994 campaign and thereafter. As the result of a property dispute, she was
assaulted and sustained injuries requiring medical attention. She obtained a
restraining order against her attackers, and her case against them is currently pending
in Peru’s courts.
After considering this testimony and supporting evidence, including
background information on Peru, the IJ denied Gutierrez-Olivares’s application for
asylum on the basis that it was untimely filed and thus statutorily barred. The IJ
denied the application for withholding of removal based on her finding that Gutierrez-
Olivares had failed to meet his burden of proof that he had suffered past persecution
or would suffer future persecution.
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II.
We review the BIA’s order, which includes the IJ’s findings and reasoning to
the extent that it expressly adopts them, as the final order of removal. Fofanah v.
Gonzales, 447 F.3d 1037, 1040 (8th Cir. 2006); see 8 U.S.C. § 1252(a)(1). We will
uphold the BIA’s findings of fact unless the evidence as a whole would compel any
reasonable adjudicator to conclude to the contrary, and we will uphold the BIA’s
decision unless it is manifestly contrary to law. 8 U.S.C. § 1252(b)(4)(B)-(C).
A. Asylum
We lack jurisdiction to review the BIA’s determinations with respect to the
timeliness of his application for asylum, including whether the application was filed
within the one-year time limit or whether changed or extraordinary circumstances
permit the consideration of an otherwise ineligible application. 8 U.S.C. § 1158(a)(3)
(courts lack jurisdiction to review determinations made pursuant to 8 U.S.C. §
1158(a)(2)). Thus, we dismiss Gutierrez-Olivares’s asylum claim for lack of
jurisdiction because it does not raise a colorable constitutional claim or question of
law. See 8 U.S.C. § 1252(a)(2)(D).2
B. Withholding of Removal
To qualify for withholding of removal under 8 U.S.C. § 1231(b)(3)(A),
Gutierrez-Olivares must have established that “his life or freedom would be
threatened” in Peru because of his “race, religion, nationality, membership in a
particular social group, or political opinion.” 8 C.F.R. § 208.16(b).
2
Gutierrez-Olivares acknowledges that we lack jurisdiction to consider his
asylum claim and does not challenge the BIA’s timeliness determination. Instead, he
argues the merits in order to preserve his good faith claim should the law change.
Appellant’s Br. at 2 n.1.
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Gutierrez-Olivares argues that he suffered and will suffer persecution based on
his political opinion and his membership in a particular party. The record does not
compel such conclusions. We agree with the BIA that the incidents described in
Gutierrez-Olivares’s testimony, even when aggregated, do not constitute persecution
within the meaning of 8 C.F.R. § 208.16(b), and thus do not establish that his life or
freedom was threatened within the meaning of 8 U.S.C. § 1231(b)(3)(A). Persecution
is an “extreme concept” that does not encompass low-level intimidation and
harassment. Eusebio v. Ashcroft, 361 F.3d 1088, 1090 (8th Cir. 2004) (internal
quotation omitted); see also Angamarca v. Gonzales, 415 F.3d 897, 900-01 (8th Cir.
2005). Although Gutierrez-Olivares may have suffered harassment at the hands of
local officials and political rivals for his political and journalistic activities, he was not
seriously injured, detained, or even dissuaded from engaging in those activities in the
Camana area for a period of nine years. See Quomsieh v. Gonzales, 479 F.3d 602,
606 (8th Cir. 2007) (“Absent physical harm, the incidents of harassment [and]
unfulfilled threats of injury . . . are not persecution.”); Angamarca, 415 F.3d at 900-01
(no persecution where petitioner did not suffer detention or serious violence and
remained in area for at least a month).
We also agree that Gutierrez-Olivares has not demonstrated that he will suffer
persecution based on his political opinion and party membership if he is returned to
Peru. The political climate has changed, and the record lacks evidence that Gutierrez-
Olivares, as a journalist and member of the Peru Posible party, would suffer more
severe treatment now than he did in the past. Fujimori has been out of power and in
exile for more than seven years. The leader of Gutierrez-Olivares’s party was Peru’s
president for five years in the interim and held that position at the time of the removal
hearing. At the level of local politics, Gutierrez-Olivares’s wife replaced the man who
harassed him.
The petition for review is denied.
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