Lobo v. Holder

United States Court of Appeals
For the First Circuit
No. 11-1640
CARLOS ALBERTO LOBO, DARWIN ALBERTO LOBO,
CIRIA JIMENA LOBO, and KAREN VANESSA LOBO,
Petitioners,
v.
ERIC H. HOLDER, JR.,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Lipez, and Howard,
Circuit Judges.
Harvey J. Bazile and Bazile & Associates, on brief for
petitioners.
Nancy K. Canter, Attorney, Civil Division, Office of
Immigration Litigation, Tony West, Assistant Attorney General,
Civil Division, and Shelley R. Goad, Assistant Director, on brief
for respondent.
July 6, 2012
TORRUELLA, Circuit Judge. Petitioners Carlos Alberto
Lobo ("Lobo") and his children (collectively, "Petitioners" or
"Lobos")1 seek review of a final order of removal issued by the
Board of Immigration Appeals ("BIA") denying their applications for
asylum, withholding of removal, and protection under Article III of
the United Nations Convention Against Torture ("CAT"). After
careful consideration, we deny their petition for review.
I. Background
Petitioners are natives and citizens of Honduras who
entered the United States without inspection on approximately
October 27, 1991. We first turn our eyes to those events that
transpired prior to the Lobos' border crossing, which are derived
from Lobo's testimony before the immigration judge ("IJ").
Lobo and his family lived in San Pedro Sula, Honduras,
where Lobo worked as a tax analyst and, following a promotion, as
chief of the commercial department for the city. Lobo lived and
worked there for approximately twelve to thirteen years. Lobo's
job responsibilities were equivalent to those of a tax collector:
he was in charge of ensuring that commercial establishments and
merchants in the Municipality of San Pedro Sula properly paid their
taxes on time. If a business was unable to pay its taxes, it fell
to Lobo's department to arrange a payment plan for the company to
assure it would not default on its payments.
1
According to the record, Lobo's children are now of adult age.
-2-
Lobo's control and monitoring of commercial
establishments' tax payments proved to be a demanding job. As tax
evasion's shadow cast ever wider over San Pedro Sula, Lobo commonly
had the responsibility of fining or closing businesses that failed
to meet their tax obligations. Perhaps true to form, one of the
businesses that decided to take a gamble with its tax obligations
was a casino operating in the Municipality. By 1989, the casino
had failed to pay its taxes for the third time in three years, the
overdue payments of which totaled approximately three and a half
million U.S. dollars. With potential fraud flags flying,
investigations commenced, with Lobo leading the investigatory pack.
Lobo's probing uncovered the following details: the
casino was managed by a woman closely associated with the
Municipality,2 and the casino was not being required to pay taxes
due to continuing fraud within the relevant hierarchical
governmental structure. Lobo prepared a report of his findings and
conclusions and distributed it to the casino and various government
entities, including the Municipality's Audit Department, Accounting
Department, and Treasury Department.
The report was, to put it lightly, not well-received.
Soon after Lobo's report went public, Lobo began to receive
threats. In July of 1990, his boss, José Dennis Lagos ("Lagos"),
2
The specifics concerning the woman's relation to the
Municipality are unclear from the record.
-3-
began pressuring Lobo to make the report disappear by threatening
to make his job disappear. Lobo declined Lagos's request. That
same month, Lobo began to receive threats at his home.
Lobo testified that he received approximately five or six
threats in total between July 1990 and September 1991,3 and that
sometime during the course of these threats, Lobo was fired from
his job. Lobo described his threats as follows:4 two threats from
Lagos; one threat from an attorney sent by Lagos; another threat
from a woman (whose relation to Lobo or the Municipality is unclear
from the record) who came to his house and aimed "a gun to [his]
chest" and demanded money; and another from persons (whom Lobo
believed were sent by Lagos) who came to his house and threatened
Lobo and his family. Lobo noted that the threats to his family
were "not just one occasion; it was various times" before he left
Honduras. Lobo additionally testified that, after being fired from
his job, he continued to receive threats at his home, whether over
the phone or in person, and that immediately before he departed for
3
The majority of the threats appear from the record to have
occurred sometime in or around July 1990. When questioned as to
why Lobo and his family had received threats as late as September
1991, Lobo stated "there was a reporter that was making a report
regarding blackmail and bad administrations of the corporation";
when that reporter "disappeared," Lobo became targeted again as
officials were afraid he might talk about his investigatory
findings. Additional specifics concerning the reporter and his
disappearance are not in the record.
4
The specific timeline of these events is not clear from the
record.
-4-
the United States, he received a threat from "an agent that worked
with the dean"5 who came to his house with a firearm.6 Lobo stated
that he never reported these warnings for fear that those
responsible for the confrontations might be associated with the
authorities.
By late September 1991, Lobo had reached his breaking
point. Lobo left Honduras along with his three children, crossing
the Mexican border and entering the United States without
inspection on or about October 27, 1991.
On May 21, 1992, Lobo filed an affirmative asylum
application with the Immigration and Naturalization Service
("INS"), predecessor to the United States Citizenship and
Immigration Naturalization Service ("USCIS"). In 2006, an asylum
officer at USCIS interviewed Lobo about his case. The officer
subsequently referred his application to the Immigration Court.
On September 7, 2007, the Department of Homeland Security
("DHS") commenced removal proceedings against Petitioners, issuing
a "Notice to Appear" (the "Notice") to Lobo and his three children.
5
There is no clear explanation in the record as to the dean's
identity or the relevance of this position.
6
Lobo testified that sometime during the July 1990-September 1991
period a man came to his house, threatening to kill him and his
family unless he signed a document promising that Lobo would not
reveal any of the information he had uncovered during his
investigation. It is not clear from the record whether this man is
the same one who came to his house with the firearm immediately
prior to Lobo's U.S. departure, or whether he was a different
harasser.
-5-
The DHS charged Lobo and his children under § 212(a)(6)(A)(i) of
the Immigration and Nationality Act as aliens present in the United
States without having been admitted or paroled following
inspection. The Notice stated that Lobo and his children, citizens
of Honduras, had illegally entered the United States via Texas on
approximately October 27, 1991.
On January 15, 2008, Petitioners appeared before the IJ.
At the hearing, Petitioners admitted all facts, conceded
removability, and acknowledged they would be seeking asylum,
withholding of removal, and protection under CAT.7 Lobo also
testified at the hearing, recounting the aforementioned events
underlying his reasons for fearing return to Honduras.
On April 28, 2009, the IJ, having considered Petitioners'
applications and Lobo's testimony, denied their applications and
ordered their removal. The IJ concluded that Lobo had failed to
establish past persecution or a well-founded fear of future
persecution to qualify for asylum. Specifically, the IJ determined
that Lobo's evidence did not rise to a level sufficient to
constitute persecution. The IJ stated that no evidence showed the
threats Lobo received were likely to be carried out; no harm in
fact befell any of the Lobos during the over year-long threat
period; and no evidence showed that others in Honduras had been
7
Lobo was the lead respondent. His children's claims were
derivative of his asylum application. See 8 U.S.C.
§ 1158(b)(3)(A).
-6-
harmed for failure to remain quiet in the face of corrupt business
activities -- with the exception of Lobo's reference to a missing
reporter, which the IJ deemed too lacking in proof to be of any
weight in Lobo's case. Additionally, the IJ noted that Lobo had
not been active in Honduran politics prior to leaving, and his five
brothers and mother had remained living in Honduras unharmed,
despite Lobo's contention that individuals, from time to time,
asked as to his whereabouts (which Lobo asserted served as proof of
an ongoing risk to his life and safety).
As to the withholding of removal claim, the IJ held that
because Lobo could not establish a claim for asylum, he could not
meet the higher standard of proof needed to make out a claim for
withholding of removal; the IJ thus denied this claim as well. The
IJ similarly denied Lobo's request for CAT relief, finding that
Lobo had failed to offer any proof that he risked facing torture
should he return to Honduras. Lastly, the IJ denied the remaining
Lobos' applications, stating that because "each of the co-
respondents is older than [twenty-one]," they "no longer ha[ve] a
viable claim for derivative asylum in any event."
-7-
On May 9, 2011, the BIA affirmed the IJ's decision
dismissing Petitioners' appeal.8 Lobo then timely filed a petition
for review with this court.
II. Discussion
We begin with the applicable standard of review. Because
the BIA here offered its own elucidations upon the IJ's reasoning,
we review both decisions "as a unit." Arévalo-Girón v. Holder, 667
F.3d 79, 81 (1st Cir. 2012). Our review requires us to adopt both
a deferential and de novo stance. Id. at 81-82. On the one hand,
we apply the "substantial evidence" standard and defer to those
findings of fact that are "supported by reasonable, substantial,
and probative evidence on the record considered as a whole."
Nikijuluw v. Gonzales, 427 F.3d 115, 120 (1st Cir. 2005) (quoting
I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 (1992)) (internal
quotation marks omitted). On the other hand, we review anew all
legal conclusions, "with appropriate deference to the agency's
interpretation of the governing statute." Sok v. Mukasey, 526 F.3d
48, 53 (1st Cir. 2008). In the end, we may only set aside the
agency's determination if the "evidence points unerringly in the
opposite direction." Laurent v. Ashcroft, 359 F.3d 59, 64 (1st
Cir. 2004); see also Castillo-Díaz v. Holder, 562 F.3d 23, 26 (1st
8
The BIA expressly noted that it would "not reach the [IJ's]
additional determination that as adult asylum applicants, the co-
respondents are ineligible to obtain derivative asylum based on
their father's asylum application."
-8-
Cir. 2009) (noting reversal of agency decision only warranted if a
"reasonable adjudicator would be compelled to conclude to the
contrary" (quoting 8 U.S.C. § 1252(b)(4)(B)) (internal quotation
marks omitted).
The evidentiary burden here lies with Lobo to show that
he is a refugee under the immigration laws. See 8 U.S.C.
§ 1158(b)(1)(B)(i); Nikijuluw, 427 F.3d at 120. To establish such
qualification for asylum, Lobo must demonstrate that he is unable
to go back to Honduras due to "[past] persecution or a well-founded
fear of [future] persecution on account of race, religion,
nationality, membership in a particular social group, or political
opinion." Hasan v. Holder, 673 F.3d 26, 30 (1st Cir. 2012)
(quoting 8 U.S.C. § 1101(a)(42)(A)) (internal quotation marks
omitted); see also Guerrero v. Holder, 667 F.3d 74, 77 (1st Cir.
2012). If a petitioner (here, Lobo) clears the past persecution
hurdle, he "creates a rebuttable presumption that a well-founded
fear of future persecution [also] endures." Guerrero, 667 F.3d at
77; 8 C.F.R. § 1208.13(b)(1).
Persecution, a term of a more elusive character due to
its lack of a specific definition under the Immigration and
Nationality Act, is better clarified by precedent. See Nikijuluw,
427 F.3d at 120 ("The Immigration and Nationality Act provides no
precise definition of 'persecution[,]'" but "[t]he case
law . . . is more informative"). We have held that the term
-9-
"'encompasses more than threats to life or freedom, but less than
mere harassment or annoyance.'" Sok, 526 F.3d at 53 (quoting
Aguilar-Solís v. I.N.S., 168 F.3d 565, 570 (1st Cir. 1999)). That
is, the totality of the harm suffered must "add up to more than
mere discomfiture, unpleasantness, harassment, or unfair
treatment." Morgan v. Holder, 634 F.3d 53, 58 (1st Cir. 2011)
(quoting Nikijuluw, 427 F.3d at 120) (internal quotation mark
omitted). Additionally, the source or administration of such harm
must trace back -- at least on some level -- to governmental action
or omission. See Jorgji v. Mukasey, 514 F.3d 53, 57 (1st Cir.
2008) (noting "the state must be the source of or at least
acquiesce in the persecution"); Harutyunyan v. Gonzales, 421 F.3d
64, 68 (1st Cir. 2005) ("[P]ersecution always implies some
connection to government action or inaction.").
Having laid the relevant legal groundwork, we turn to the
agency's determination that Lobo did not suffer past persecution.
We conclude that the agency's decision passes the substantial
evidence test.
Lobo anchors his claim of past persecution in the
approximately five (or six) incidents of threats or extortions Lobo
testified to receiving following his casino investigation in
Honduras recounted above. Threats to one's job, personal safety,
or family are without question highly unsettling and tension-
inducing. And while it is true that a showing of threats may be
-10-
sufficient to establish past persecution, "the presence or absence
of physical harm (and, indeed, the degree of harm inflicted)
remains a relevant factor in determining whether mistreatment rises
to the level of persecution." Gilca v. Holder, No. 11-1711, 2012
WL 1867125, at *3 (1st Cir. May 23, 2012) (quoting Ruíz v. Mukasey,
526 F.3d 31, 37 (1st Cir. 2008)) (internal quotation marks
omitted).
Here, the IJ found (with the BIA largely adopting its
findings) that Lobo's received threats did not rise to the level of
persecution because no evidence showed or suggested that such
threats ever were at risk of being carried out, and the threats
occurred over the course of an approximately year-long period, with
no harm ever befalling any of the Lobos. We have recognized that
"[h]ollow threats, . . . without more, certainly do not compel a
finding of past persecution," Gilca, 2012 WL 1867125, at *3
(quoting Ang v. Gonzales, 430 F.3d 50, 56 (1st Cir. 2005)), and
that "the absence of evidence of physical harm [may] plainly
support[] the BIA's determination that nothing tantamount to
persecution transpired." Ruíz, 526 F.3d at 37. Given the lack of
credibility or impendency to the threats at issue, including the
absence of any harm actually betiding the Lobos, the evidence does
not compel a disturbance of the agency's conclusion. See Elias-
Zacarias, 502 U.S. at 481 n.1 (stating "[t]o reverse the BIA
-11-
finding we must find that the evidence not only supports the
conclusion, but compels it") (emphasis in original).
Moreover, the IJ noted that Lobo's testimony as to such
incidents contained inconsistencies (including the nature and
number of threats actually received, and the identities of those
responsible for ordering or issuing such threats) that, while not
sufficient to warrant an adverse credibility finding, made it
difficult to fully credit his testimony or to uphold his claim
without further corroboration.9 For instance, although Lobo
testified that at least one of his received warnings occurred at
gunpoint with an accompanying threat of death or harm, the IJ found
such testimony to be inconsistent and lacking proof as to the
plausibility of its actually being effectuated. Cf. Gilca, 2012 WL
1867125, at *3 & n.2. While any such warning is indubitably
unsettling, "credible verbal death threats may fall within the
meaning of 'persecution[]' . . . only when the threats are 'so
menacing as to cause significant actual suffering or harm.'"
Vilela v. Holder, 620 F.3d 25, 29 (1st Cir. 2010) (internal
citation omitted) (quoting Bonilla v. Mukasey, 539 F.3d 72, 77 (1st
9
Additional proof that the IJ highlighted as missing from the
record but that would have been useful in assessing Lobo's claim
included evidence that he had worked for the Municipality of San
Pedro Sula, letters from his mother or siblings who had continued
to live in Honduras confirming the nature of such threats, news
articles or other documentation regarding possible investigations
into Lobo's former employer, or information concerning the alleged
missing reporter that Lobo referenced in his testimony.
-12-
Cir. 2008)). As the IJ determined and BIA echoed, the threats here
were not "sufficiently credible or imminent" to constitute
persecution under applicable case law. Ravix v. Mukasey, 552 F.3d
42, 46 (1st Cir. 2009).
Lobo's past persecution claim is deficient on another
ground. The record here is devoid of evidence showing that the
threats Lobo received were linked to a statutorily protected
ground, i.e., "race, religion, nationality, membership in a
particular social group, or political opinion." 8 U.S.C.
§ 1101(a)(42)(A). The IJ rejected Lobo's claim that he was being
targeted based on political opinion or membership in a particular
group, noting (as to the former) that Lobo was not active in
Honduran politics and had not belonged to a Honduran political
party, and (as to the latter) that Lobo had failed to specify as to
which social group he might belong -- a gap in the application that
only Lobo could fill.10 The absence of any evidence that Lobo was
targeted on the basis of a protected ground, coupled with his
failure to proffer evidence showing harm amounting to persecution,
10
We additionally note without comment the IJ's statement that
"[a]lthough the Court is not willing to supply the social group on
which [Lobo] apparently relies, the Court notes that non-criminal
informants who passed on information do not constitute a particular
social group."
-13-
serves, here, as the tolling bell for Lobo's past persecution
claim.11
In sum, the agency's determination that Lobo could not
show past persecution was supported by substantial evidence.
Whether the underlying threats are viewed in isolation or the
collective, it was well within the agency's aegis to conclude that
such acts did not amount to past persecution.
Because we affirm the agency's determination as to past
persecution, Lobo's asylum claim now rests upon whether he can
independently establish that he has a well-founded fear of future
persecution. Nikijuluw, 427 F.3d at 121; see also 8 C.F.R.
§ 208.13(b)(2). To make such a showing, Lobo must traverse two
pathways: he "must demonstrate not only that [he] harbors a genuine
fear of future persecution but also that [his] fear is objectively
reasonable." Negeya v. Gonzales, 417 F.3d 78, 82-83 (1st Cir.
2005). The IJ determined, and the BIA agreed, that while Lobo may
subjectively fear returning to Honduras, his stated fear was not
objectively reasonable.
Specifically, the IJ noted that approximately two decades
had passed since Lobo had left Honduras. Cf. Chávez-Oliva v.
11
Although Lobo did establish a link to governmental action --
as the threats at issue came from his former employer (a government
employee) or individuals acting at his employer's direction --
Lobo's past persecution claim cannot stand on this leg alone. See
e.g., 8 U.S.C. § 1101(a)(42)(A); López Pérez v. Holder, 587 F.3d
456, 462 (1st Cir. 2009).
-14-
Gonzales, 190 F. App'x 6, 12 (1st Cir. 2006) (noting that
petitioner's absence from country for over a decade "significantly
decrease[d] the likelihood that he would be harmed on account of"
an alleged statutory ground). Although Lobo testified that the
persons who threatened him still held government positions and were
presently under investigation in Honduras, the IJ and BIA noted
Lobo's failure to provide any evidence in support of this
contention, aside from unsubstantiated references to "news that
[he's] seen through the computer" and uncorroborated, out-of-court
statements from family members. We agree with the agency's
determination that this evidence -- or lack thereof -- does not
rise to the level of specific proof generally required to establish
an objectively reasonable fear of future persecution. See, e.g.,
Castillo-Díaz, 562 F.3d at 26 (stating "an alien can demonstrate
directly her well-founded fear of future persecution [where no
rebuttable presumption is established] through an offer of
'specific proof'" (quoting Romilus v. Ashcroft, 385 F.3d 1, 6 (1st
Cir. 2004))); see also Mukamusoni v. Ashcroft, 390 F.3d 110, 120
(1st Cir. 2004) (noting that "[t]he subjective test [of
establishing a well-founded fear of future persecution] requires
the applicant to prove his fear is genuine, while the objective
test requires showing by credible and specific evidence that this
fear is reasonable").
-15-
Moreover, the IJ reasoned, and the BIA agreed, that the
fact that Lobo's mother and siblings had continued to live in
Honduras following Lobo's departure, without suffering any harm
aside from alleged inquiries from others as to Lobo's current
whereabouts, weighed against a finding of persecution sufficient to
qualify for asylum. We have often echoed that "[t]he fact that
close relatives continue to live peacefully in the alien's homeland
undercuts the alien's claim that persecution awaits [his] return."
Budiono v. Mukasey, 548 F.3d 44, 50 (1st Cir. 2008) (quoting Ly v.
Mukasey, 524 F.3d 126, 133 (1st Cir. 2008)); see also Decky v.
Holder, 587 F.3d 104, 112-13 (1st Cir. 2009); López Pérez, 587 F.3d
at 463; Aguilar-Solís, 168 F.3d at 573. Although by no means an
outcome-determinative factor, we repeat that chorus here where no
evidence compels us to find, contrary to the agency, that Lobo has
a well-founded fear of future persecution. We thus affirm the
agency's rejection of Lobo's claim of a well-founded fear of future
persecution, finding it to be supported by substantial evidence.
Lobo's remaining claims fare no better. Turning first to
his withholding of removal claim, we note that a "petitioner's
quest for withholding of removal . . . carries with it a more
stringent burden of proof than does a counterpart effort to obtain
asylum." Orelien v. Gonzales, 467 F.3d 67, 73 (1st Cir. 2006); see
also Ang, 430 F.3d at 58 ("Withholding of removal requires that an
alien establish a clear probability of persecution, rather than
-16-
merely a well-founded fear of persecution."). Thus, if a
petitioner cannot meet the lesser burden for establishing
eligibility for asylum, then, sure as night follows day, so too
will it hold true that he will be unable to satisfy the higher
standard for withholding of removal. Zheng v. Gonzales, 416 F.3d
97, 101 n.3 (1st Cir. 2005); see also Bocova v. Gonzales, 412 F.3d
257, 264 (1st Cir. 2005). Because we uphold the agency's denial of
Lobo's asylum claim, his withholding of removal claim thus falls by
the wayside.
Lastly, addressing Lobo's CAT claim, we find no grounds
on which to quibble with the agency's denial-of-redress
determination. In brief, under the CAT, the United States may not
return an alien to his country of nationality if "there are
substantial grounds for believing [he] would be in danger of being
subjected to torture." Pub. L. No. 105-277, § 2242, 112 Stat.
2681, 2681-822 (1998). The petitioner (here, Lobo) must shoulder
the burden of establishing that it is more likely than not that he
will be tortured on returning to his homeland. See Hasan, 673 F.3d
at 35; 8 C.F.R. § 208.16(c)(2). Applicable regulation defines
torture as "any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person . . . by
or at the instigation of or with the consent or acquiescence of a
public official or other person acting in an official capacity."
8 C.F.R. § 208.18(a)(1).
-17-
Both the IJ and BIA found that Lobo offered no evidence
showing he had been tortured or even physically harmed when living
in Honduras. The most Lobo did proffer -- the unsupported posit
that his boss was directed by the Municipality of San Pedro Sula to
send imminent death and physical harm threats to Lobo -- does not
show that Lobo "more likely than not" will be tortured by the
government on returning to Honduras. See Ang, 430 F.3d at 58(noting "vague threats" by political adversaries did not rise to
the level of torture); see also Orelien, 467 F.3d at 73 (rejecting
petitioner's CAT claim on grounds that he "proffered no evidence of
physical harm directed against him while" in his home country, nor
did he show evidence, "either direct or circumstantial, that he
will be tortured at the hands of the government" should he return).
In the absence of any evidence supporting Lobo's claim that
government-sanctioned torture more likely than not awaits him on
his return to Honduras, we must affirm the agency's refusal of
relief under the CAT.12
III. Conclusion
With no remaining claims before us, our review comes to
an end. For the reasons expounded above, we deny Lobo's petition
for judicial review.
12
Both the IJ and BIA determined that the remaining Lobos' claims
for withholding of removal and CAT protection, derivative of their
father's claims (which were denied), likewise failed. We see no
evidence compelling us to disturb the BIA and IJ's conclusions.
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