Cerrato v. Gonzales

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 05-1633
ROSA A. CERRATO, et al.,
Petitioners,
v.
ALBERTO R. GONZALES, United States Attorney General,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Circuit Judge,
Campbell, Senior Circuit Judge
and Howard, Circuit Judge.
Jose A. Espinosa for petitioners.
Peter D. Keisler, Assistant Attorney General, Civil Division,
Mark L. Gross and Terri J. Scadron, Attorneys, United States
Department of Justice, on brief for respondent.
February 21, 2006
Per Curiam. Rosa Cerrato and her son, Roberto Cerrato,
citizens of Guatemala, petition for review of a Board of
Immigration Appeals ("BIA") decision denying them withholding of
removal and asylum.1 We deny the petitions.
The underlying facts are essentially undisputed. Rosa
Cerrato's uncle, Hugo, was killed in July 1995. The perpetrators
were never apprehended and their motive remains unknown. Rosa
contends that another uncle's efforts to investigate the death
caused approximately five threats to be directed against her
family. In response, Rosa left Guatemala for the United States in
1996, leaving Roberto with her mother. Roberto ultimately came to
the United States in 2002, fleeing from gangs that had threatened
him "a few times," including once at knife point. He asserts that
the gangs were after cash sent to him by his mother. Some of the
Cerratos' relatives have moved to other parts of Guatemala over the
years, but nobody other than Hugo has been harmed.
The BIA concluded that the Cerratos had failed to show
that they were persecuted or faced a likelihood of future
persecution if returned to Guatemala. The BIA also held that
Roberto had failed to show that the harm that he suffered was
connected to a protected ground.
1
In the administrative proceedings, petitioners sought asylum,
withholding of removal, and protection under the Convention Against
Torture. In their petitions, however, Rosa challenges only the
denial of withholding of removal, and Roberto challenges only the
denial of asylum.
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An alien can establish eligibility for consideration for
asylum by showing that he has suffered past persecution or that he
has a "well-founded" fear of future persecution if returned to his
country of origin. See Romilus v. Ashcroft, 385 F.3d 1, 6 (1st
Cir. 2004). In either case, the persecution must be based upon one
of five protected grounds: race, religion, nationality, political
opinion, or membership in a particular social group. Id. The bar
is higher for withholding of removal, as the alien must show that
it is "more likely than not" she will be persecuted on a protected
ground if returned to her country of origin. Id. at 8. Under
either standard, we will uphold the BIA's determination if it is
supported by substantial evidence. Id. at 5.
Rosa argues that she is entitled to withholding of
removal because the evidence conclusively demonstrates that she was
persecuted on the basis of her family membership and would face
death because of her family membership if returned to Guatemala.
While a family can constitute a "social group" for purposes of
asylum and withholding of removal, see Da Silva v. Ashcroft, 394
F.3d 1, 5 (1st Cir. 2005), Rosa's other contentions fail to
persuade.
Rosa herself was never physically injured, arrested, or
imprisoned. Rather, her claim is based upon five threats against
her family, as opposed to her personally. These threats, while
surely unsettling, do not amount to "persecution" under our case
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law. See, e.g., Topalli v. Gonzales, 417 F.3d 128, 132-33 (1st
Cir. 2005) (sporadic arrests and beatings did not constitute
"persecution" within meaning of immigration statutes); Bocova v.
Gonzales, 412 F.3d 257, 263-64 (1st Cir. 2005) (similar); Carcamo-
Recinos v. Ashcroft, 389 F.3d 253, 257-58 (1st Cir. 2004) (threats
did not amount to persecution). Further, Rosa has supplied the BIA
with too few specifics about the nature of the threats and why they
were made. See Romilus, 385 F.3d at 7 (applicant required to
provide some evidence of antagonists' motivation). Finally, Rosa
has not established that she would suffer harm upon returning to
Guatemala ten years after her original departure. Along these
lines, we note that her family members have lived there without
being harmed in the interim. See Velasquez v. Ashcroft, 342 F.3d
55, 58-59 (1st Cir. 2003).
Roberto argues that the BIA erred in concluding that he
failed to establish a link between the harassment complained of and
a protected ground. Roberto contends that he belongs to the
"social group" made up of children that receive money from parents
working in the United States, and that he was persecuted because of
his membership in this group. But Roberto never made this argument
to the BIA. See Ishak v. Gonzales, 422 F.3d 22, 31 (1st Cir. 2005)
(this court has no jurisdiction to consider a claim that was never
presented to the BIA). And in any event, the harassment that
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Roberto experienced does not rise to the level of "persecution."
See, e.g., Topalli, 417 F.3d at 132-33.
The petitions are therefore denied.
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