Romero Villafranca v. Holder, Jr.

United States Court of Appeals
For the First Circuit
No. 14-1881
EDGAR ROMERO VILLAFRANCA,
Petitioner,
v.
LORETTA E. LYNCH,* ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Selya and Thompson,
Circuit Judges.
Kevin MacMurray and MacMurray & Associates on brief for
petitioner.
Joyce R. Branda, Acting Assistant Attorney General, Civil
Division, Jennifer Williams, Senior Litigation Counsel, Office of
Immigration Litigation, and Yedidya Cohen, Trial Attorney, Office
of Immigration Litigation, on brief for respondent.
August 5, 2015
* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Loretta E. Lynch has been substituted for former Attorney General
Eric H. Holder, Jr. as the respondent.
SELYA, Circuit Judge. The petitioner, Edgar Romero
Villafranca, is a Honduran national who seeks judicial review of
a final order of the Board of Immigration Appeals (BIA) denying
his application for asylum, withholding of removal, and protection
under the United Nations Convention Against Torture (CAT). After
careful consideration, we deny his petition.
The background is easily sketched. In November of 2010,
the petitioner entered the United States illegally, was thereafter
detained, and was then paroled. He told an asylum officer that he
was seeking asylum due to what he described as his attempted
kidnapping or murder a year earlier. He said that, while driving
his car along a Honduran road, a vehicle containing several armed
men cut him off. The men were dressed in regalia of a sort that
the petitioner thought "customary" for the special police. Three
of them approached the petitioner's vehicle and, as he sped away,
they opened fire. The petitioner was able to evade his assailants,
but he nevertheless thought that he remained at risk because of
his family's wealth and political ties.
In due course, the petitioner was served with a notice
to appear before an immigration judge (IJ) and (for reasons not
relevant here) his case was subsequently transferred to
Massachusetts. The petitioner conceded removability and cross-
applied for asylum, withholding of removal, and CAT protection.
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During a hearing before the IJ in February of 2013, the petitioner
recounted the narrative that he had related to the asylum officer.
He added that he did not report the incident because he feared
that the Honduran police were involved; that he drove to his
family's farm in Juticalpa following the incident; and that he
remained there for roughly six months before fleeing to the United
States.
The petitioner pointed to his family's upper-class
status and political ties as likely reasons why he was targeted by
the marauders. He mentioned that his father was a long-time member
of the ruling party in Honduras and a friend of the country's then-
president. Furthermore, his aunt and uncle were both entrenched
in Honduran politics. Although his family had continued to live
safely in Honduras before and after the attack that he described,
he said that his father had received several threatening telephone
calls. He went on to note that his godfather had been assassinated
in 2007, albeit for unspecified reasons.
The IJ found the petitioner's testimony to be credible.
She nonetheless concluded that he had not established either past
persecution or a well-founded fear of future persecution.
Moreover, he had failed to tie his attack to his membership in a
particular social group. Based on these and other findings, the
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IJ denied all of the petitioner's claims for relief and ordered
him removed to Honduras.
The petitioner appealed to the BIA, which affirmed the
IJ's decision. The BIA concluded that even if the petitioner had
successfully demonstrated the requisite connection between the
attack and his membership in a particular social group, he had
failed to establish either past persecution or a well-founded fear
of future persecution. This timely petition for judicial review
followed. See 8 U.S.C. § 1252(b)(1).
Where, as here, the BIA adopts and affirms an IJ's
decision "while adding its own gloss, we review both the IJ's and
the BIA's decisions as a unit." Jianli Chen v. Holder, 703 F.3d
17, 21 (1st Cir. 2012). Our review proceeds under the deferential
substantial evidence rubric, which "requires us to accept the
agency's findings of fact, including credibility findings, as long
as they are supported by reasonable, substantial, and probative
evidence on the record considered as a whole." Segran v. Mukasey,
511 F.3d 1, 5 (1st Cir. 2007) (internal quotation marks omitted).
"Absent an error of law, we will reverse only if the record compels
a conclusion contrary to that reached by the agency." Mariko v.
Holder, 632 F.3d 1, 5 (1st Cir. 2011). Questions of law "engender
de novo review, but with some deference to the agency's reasonable
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interpretation of statutes and regulations that fall within its
sphere of authority." Jianli Chen, 703 F.3d at 21.
Before assessing the decision below, it is helpful to
lay a foundation. To be eligible for asylum, an alien must
establish that he is a refugee within the meaning of 8 U.S.C.
§ 1101(a)(42). In pertinent part, that statute demands a showing
of "persecution or a well-founded fear of persecution" on account
of one of five enumerated grounds: "race, religion, nationality,
membership in a particular social group, or political opinion[.]"
We have made pellucid that "persecution requires more than a
showing of either episodic violence or sporadic abuse." Palma-
Mazariegos v. Gonzales, 428 F.3d 30, 37 (1st Cir. 2005). Put
another way, "[t]o qualify as persecution, a person's experience
must rise above unpleasantness, harassment, and even basic
suffering." Jorgji v. Mukasey, 514 F.3d 53, 57 (1st Cir. 2008)
(internal quotation marks omitted). In addition, "the term
'persecution' implies some link to governmental action or
inaction; that is, the government must practice, encourage, or
countenance it, or at least prove itself unable or unwilling to
combat it." Lopez Perez v. Holder, 587 F.3d 456, 462 (1st Cir.
2009).
A successful showing of past persecution creates a
rebuttable presumption that an alien's fear of future persecution
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is well-founded. See Orelien v. Gonzales, 467 F.3d 67, 71 (1st
Cir. 2006). An inability to establish past persecution, however,
is not necessarily fatal to the asylum seeker's quest: he still
"may prevail on an asylum claim by proving, simpliciter, a well-
founded fear of future persecution independent of any
presumption." Id.With this foundation in place, we turn to the
petitioner's claims of error. To begin, the petitioner asserts
that neither the IJ nor the BIA appropriately analyzed whether he
had experienced past persecution. This assertion is belied by the
record.
For her part, the IJ conducted a thorough analysis
regarding the existence vel non of past persecution. After a
detailed discussion, the IJ found that the petitioner had fallen
victim to a single, isolated criminal attack which failed to come
close to the level of persecution. The BIA was equally thorough;
it affirmed the IJ's determination that no persecution had been
established, citing a trio of cases in which this court upheld
decisions of the BIA concluding that isolated incidents did not
equate to persecution.1 The BIA then concluded that the solitary
attack on the petitioner did not sink to the level of persecution.
1 See Topalli v. Gonzales, 417 F.3d 128, 132 (1st Cir. 2005);
Bocova v. Gonzales, 412 F.3d 257, 263 (1st Cir. 2005); Nelson v.
INS, 232 F.3d 258, 263-64 (1st Cir. 2000).
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The petitioner next complains about the agency's finding
that he failed to demonstrate a well-founded fear of future
persecution. This plaint fares no better.
A well-founded fear of future persecution must be both
subjectively authentic and objectively reasonable. See Orelien,
467 F.3d at 71. To achieve this benchmark, an alien must show
that he genuinely fears persecution were he to be repatriated and
that his fear has an objectively reasonable basis. See Lopez
Perez, 587 F.3d at 461-62. A petitioner's credible testimony may
alone satisfy the subjective component of the test. See Makhoul
v. Ashcroft, 387 F.3d 75, 80-81 (1st Cir. 2004). Here, the IJ
credited the petitioner's testimony about his subjective fear of
returning to Honduras, so we turn to the objective component.
The objective component of the test is satisfied only if
"a reasonable person in the asylum applicant's circumstances would
fear persecution on account of a statutorily protected ground."
Id. at 81. Both the IJ and the BIA found that the petitioner had
not made this showing. The question, then, reduces to whether the
record compels a contrary conclusion. See INS v. Elias-Zacarias,
502 U.S. 478, 483-84 (1992).
We need not tarry. Simply put, the record does not
compel a contrary conclusion but, rather, is fully consistent with
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the agency's determination that the petitioner's professed fear of
future persecution was not objectively reasonable.
At the center of the petitioner's claimed fear of future
persecution is the attack that he recounted. But the agency's
finding that the attack did not evince persecution was supportable.
The record indicates, at most, a solitary, quite possibly random,
incident — the cause of which is unknown. The petitioner, though
understandably frightened, escaped unscathed. We have regularly
upheld determinations by the BIA that this sort of sporadic,
isolated event does not — in the absence of evidence of systematic
targeting or the like — constitute persecution. See, e.g., Khan
v. Mukasey, 549 F.3d 573, 576-77 (1st Cir. 2008); Journal v.
Keisler, 507 F.3d 9, 12 (1st Cir. 2007); Rodriguez-Ramirez v.
Ashcroft, 398 F.3d 120, 124 (1st Cir. 2005). Indeed, we have
upheld the BIA's plausible application of similar reasoning even
where more than one episode is alleged to have occurred. See,
e.g., Touch v. Holder, 568 F.3d 32, 39-40 (1st Cir. 2009); Topalli
v. Gonzales, 417 F.3d 128, 132 (1st Cir. 2005); Bocova v. Gonzales,
412 F.3d 257, 263-64 (1st Cir. 2005).
The petitioner's hand is not strengthened by his
allusions to threatening telephone calls to his father and the
assassination of his godfather. He has offered only vague and
general descriptions of these events, without any concrete
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indication of what brought them about. To nail down the point, he
has in no way linked these incidents to the attack about which he
complains. Seen in this light, the purported relevance of these
events is purely speculative.
The agency's conclusion that the petitioner's fear of
persecution is not objectively reasonable gains additional support
from other aspects of the record. For one thing, the petitioner
remained unharmed in Honduras for roughly six months after the
attack. See Touch, 568 F.3d at 40 (concluding that remaining
unharmed in homeland for substantial period of time can support
finding that fear of persecution is not objectively reasonable).
For another thing, despite the petitioner's assertion that the
persecution he suffered was based on kinship, his family members
have continued to dwell in Honduras unharmed. See Lopez Perez,
587 F.3d at 463 ("The safety of an alien's close family members
who continue to reside in the alien's home country has been held,
in appropriate circumstances, to undercut the reasonableness of a
professed fear of future persecution.").
To be sure, the general materials submitted by the
petitioner to the agency (such as news articles and country
conditions reports) paint a disturbing picture of endemic violence
and corruption in Honduras. But on this sparse record, such
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generalized evidence is not sufficient to compel a finding of a
well-founded fear of persecution. See Makhoul, 387 F.3d at 82.
The short of it is that the BIA was on supportable ground
in viewing the petitioner's attack as a solitary event that was
unpleasant and harassing but, nevertheless, did not amount to
persecution. See Tobon-Marin v. Mukasey, 512 F.3d 28, 32 (1st
Cir. 2008). Here, as in Orelien, 467 F.3d at 71, the attack in
question "is too frail a lance to unhorse the BIA's fact-based
finding that nothing amounting to persecution occurred."
That ends this aspect of the matter.2 In the last
analysis, the fate of the petitioner's asylum claim depends on the
drawing of inferences; and when, as now, "the record supports
plausible but conflicting inferences in an immigration case, the
IJ's choice between those inferences is, a fortiori, supported by
substantial evidence." Lopez de Hincapie v. Gonzales, 494 F.3d
213, 219 (1st Cir. 2007).
The petitioner's remaining claims are readily
dispatched. His claim for withholding of removal "carries with it
a more stringent burden of proof than does a counterpart effort to
obtain asylum." Orelien, 467 F.3d at 73. In order to succeed on
2 Given the supportable finding that the petitioner failed to
prove a well-founded fear of persecution, we need not reach his
claim that the IJ erred in "arbitrarily limit[ing]" the definition
of the enumerated ground under which the petitioner sought relief.
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such a claim, "an alien must show that, if returned to [his] native
land, [he] will more likely than not face persecution on account
of a statutorily protected ground." Lopez Perez, 587 F.3d at 463.
Where, as here, an alien falls short of showing persecution
sufficient to satisfy the more easily attainable standard required
for an asylum claim, a counterpart claim for withholding of removal
necessarily fails. See id.This leaves only the petitioner's claim for protection
under the CAT. That claim has not been preserved: the petitioner's
brief in this court is devoid of any developed argumentation
directed to it. Thus, any such claim has been waived. See Segran,
511 F.3d at 7 n.2; Makhoul, 387 F.3d at 82.
We need go no further. For the reasons elucidated above,
we deny the petition for judicial review.
So ordered.
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