Earlys Lenin Guido-Ruiz v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
April 18, 2005
No. 04-14065
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency Docket No. A74-398-746
EARLYS LENIN GUIDO-RUIZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
__________________________
Petition for Review of a Decision of
the Board of Immigration Appeals
_________________________
(April 18, 2005)
Before HULL, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Earlys Lenin Guido-Ruiz, a native of Nicaragua, petitions this Court for
review of the final order of the Board of Immigration Appeals (BIA), which
affirmed the order of removal by the Immigration Judge (IJ). The transitional
rules of the Illegal Immigration Reform and Immigrant Responsibility Act of
1996, Pub. L. No. 104-208, 110 Stat. 3009 (1996), govern his petition for review.
See Al Najjar v. Ashcroft, 257 F.3d 1262, 1276 (11th Cir. 2001). We deny the
petition.
I. STANDARD OF REVIEW
Because the BIA adopted the decision of the IJ without opinion, we review
the analysis of the IJ as if it were the analysis of the BIA. See id. at 1284. We
review factual determinations, including the existence of past persecution and a
well-founded fear of persecution, under the substantial evidence test, and we
“must affirm the . . . decision if it is ‘supported by reasonable, substantial, and
probative evidence on the record considered as a whole.’” Id. 257 3d at 1283-84
(citation omitted). Under this highly deferential standard, we must defer to the
decision . . . unless the evidence “compels” a reasonable factfinder to find
otherwise. INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1, 112 S. Ct. 812, 815 n.1
(1992).
II. DISCUSSION
Guido-Ruiz makes three arguments on appeal. He first argues that the IJ
erred in denying asylum and withholding of removal because Guido-Ruiz
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presented evidence of past persecution and the change of conditions in Nicaragua
does not rebut this evidence. Guido-Ruiz next argues that the IJ denied him due
process. Finally, Guido-Ruiz argues that the IJ should have stayed the removal
proceedings pending a determination of whether Guido-Ruiz was entitled to relief
under the Nicaraguan Adjustment and Central American Relief Act (NACARA).
We address each argument in turn.
A. Asylum and Withholding of Removal
An alien who arrives in or is present in the United States may apply for
asylum. INA § 208 (a)(1), 8 U.S.C. § 1158 (a)(1). The Attorney General has
discretion to grant asylum if the alien meets the statutory definition of a “refugee.”
INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). The asylum applicant carries the burden
of proving statutory “refugee” status. Al Najjar, 257 F.3d at 1284. If the applicant
meets this burden, then the AG may exercise his discretion to grant the applicant
asylum. Id.
To establish asylum eligibility, an alien must, with specific and credible
evidence, establish either (1) past persecution on account of his political opinion
or other statutorily listed factor or (2) a “well-founded” fear of future persecution
in account of race, religion, nationality, membership in a particular social group,
or political opinion. 8 C.F.R. § 208.13(a), (b); Al Najjar, 257 F.3d at 1287. If an
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alien offers credible testimony of past persecution in a protected ground, he is
presumed to have a well-founded fear of future persecution, see 8 C.F.R. §
208.13(b)(1); D-Muhumed v. United States Attorney Gen., 388 F.3d 814, 818
(11th Cir. 2004), but “an immigration judge . . . shall deny the asylum application
of an alien found to be a refugee on the basis of past persecution if . . . [t]here has
been a fundamental change in circumstances such that the applicant no longer has
a well-founded fear of persecution in the applicant’s country of nationality.” 8
C.F.R. § 208.13(b)(1)(i).
Substantial evidence supports the finding of the IJ that Guido-Ruiz did not
have a well-founded fear that his political opinion will cause future persecution.
Guido-Ruiz suffered relatively minor harassment. Although the IJ found that his
“father was subjected to what appears to be a very harsh period of detention for
four months” because of his father’s “expression of displeasure with the
Sandinista government,” Guido-Ruiz remained in Nicaragua for eight or nine
years after the Sandinista revolution. Guido-Ruiz was never arrested and did not
suffer any harm during this period of time. Although Guido-Ruiz testified that
members of the Sandinista youth committee would sometimes beat him, the record
does not contain any evidence that Guido-Ruiz was ever physically injured
because his testimony was not specific as to the nature or extent of the beatings.
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Additionally, members of Guido-Ruiz’s family continue to live in Nicaragua
without persecution from the Sandinistas.
Since Guido-Ruiz’s departure from Nicaragua, a democratic government
has been firmly established. The Country Report noted extensive changes in
Nicaragua since 1990. Nicaragua is a constitutional democracy with a popularly-
elected president, vice president, and legislature. Guido-Ruiz, therefore, failed to
show that he possessed a “well-founded fear” of persecution on account of any
protected ground.
Guido-Ruiz also failed to establish that he was entitled to withholding of
removal under the INA, which allows for withholding of removal if an alien can
show that his life or freedom would be threatened on account of race, religion,
nationality, membership in a particular social group, or political opinion. See INA
§ 241(b)(3)(A); 8 U.S.C. § 1231(b)(3)(A). An alien seeking withholding of
removal must establish that he would “more likely than not” be persecuted on
account of one of the protected grounds” if he were to return to the country. See
INS v. Stevic, 467 U.S. 407, 429-30, 104 S. Ct. 2489, 2501 (1984). This standard
is a more stringent than the standard for asylum. See Mazariegos v. U.S. Attorney
Gen., 241 F.3d 1320, 1324 n.2 (11th Cir. 2001).
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If “an applicant is unable to meet the ‘well-founded fear’ standard for
asylum, he is generally precluded from qualifying for either asylum or withholding
of removal.” Al Najjar, 257 F.3d at 1292-93 (internal citations omitted). Because
Guido-Ruiz failed to meet the lower standard of eligibility for asylum, substantial
evidence supports the denial by the BIA of withholding of removal. We conclude
that Guido-Ruiz failed to meet his burden to show that it was more likely than not
that his life or freedom would be threatened on account of any protected ground.
Finally, Guido-Ruiz failed to demonstrate that he was eligible for
withholding of removal under the United Nations Convention Against Torture
(CAT). To establish withholding of removal under the CAT, an applicant must
establish that it is “more likely than not” he will be tortured in the country of
removal. 8 C.F.R. § 208.16(c)(2).
Guido-Ruiz did not prove that he was ever tortured, much less that he “more
likely than not” would be tortured upon his return to Nicaragua. Guido-Ruiz also
did not present any evidence that the alleged harm he suffered was “inflicted at the
instigation of or with the consent or acquiescence of a public official.” 8 C.F.R. §
208.18(a)(1). Guido-Ruiz, therefore, failed to establish eligibility for CAT relief.
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B. Due Process
Guido-Ruiz argues that the IJ denied him due process when the IJ asked
Guido-Ruiz’s father to explain why Guido-Ruiz’s middle name was Lenin. We
review a due process claim de novo. See Alabama Power Co. v. FCC, 311 F.3d
1357, 1367 (11th Cir. 2002). “To establish due process violations in removal
proceedings, aliens must show that they were deprived of liberty without due
process of law, and that the asserted errors caused them substantial prejudice.”
Lonyem v. U.S. Attorney Gen., 352 F.3d 1338, 1341-42 (11th Cir. 2003) (citation
omitted).
In response to testimony by Guido-Ruiz’s father, Maximo, that he was
totally unaware of the nature of the Sandinista government, the IJ asked Maximo
about his choice of the middle name Lenin for his son. Maximo stated that he just
liked the name, and he did not see any significance in the name. This response
spoke to Maximo’s credibility because Guido-Ruiz was born three months after
the Sandinistas, a Marxist organization, came to power. Moreover, Guido-Ruiz
has not demonstrated that this isolated, short line of questioning interfered with his
ability to present his case. Accordingly, Guido-Ruiz has not established that the
questioning by the IJ violated due process.
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C. NACARA
Guido-Ruiz argues that the IJ should have stayed the removal proceedings
pending a determination of whether he was entitled to relief under NACARA. We
review legal determinations of the BIA or IJ de novo. See D-Muhumed, 388 F.3d
at 817. An alien is eligible to apply for adjustment of status under the NACARA
if he (1) is a national of Nicaragua or Cuba, and (2) has been present in the United
States for a continuing period beginning no later than December 1, 1995, and
ending no earlier than the date the adjustment application is granted. See
NACARA §§ 202(a)(1), (b)(1) Children of Nicaraguan aliens can obtain
permanent resident status under the NACARA if they meet certain requirements.
See NACARA § 202(d). A child is “an unmarried person under twenty-one years
of age who is . . . a child born in wedlock.” INA § 101(b)(1)(A), 8 U.S.C. §
1101(b)(1)(A).
Guido-Ruiz is not eligible to apply for relief under the NACARA on his
own because he entered the country in October 1996. He, therefore, can obtain
relief only as a beneficiary of his mother’s application. Because Guido-Ruiz
reached the age of 21 before his mother’s application was processed, he does not
qualify as a “child” under the NACARA. Although Guido-Ruiz argues that we
should consider other immigration provisions that consider the age of the
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applicant at the time the petition was filed, none of those provisions amend or
expand the age provision of the NACARA. The IJ did not err in concluding that
Guido-Ruiz was not eligible for adjustment under the NACARA.
III. CONCLUSION
Based on the foregoing, we deny Guido-Ruiz’s petition for review.
PETITION DENIED.
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