Daniel Roblero-Berduo v. Eric Holder, Jr.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0746n.06
No. 10-3380
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Nov 01, 2011
DANIEL ROBLERO-BERDUO
LEONARD GREEN, Clerk
Petitioner,
v. ON PETITION FOR REVIEW FROM
THE BOARD OF IMMIGRATION
ERIC H. HOLDER, JR., Attorney General, APPEALS
Respondent.
/
BEFORE: MARTIN, CLAY, and WHITE, Circuit Judges.
CLAY, Circuit Judge. Petitioner Daniel Roblero-Berduo petitions for review of an order
of the Board of Immigration Appeals (“BIA” or “the Board”) affirming a decision of the immigration
judge (“IJ”). The IJ denied Roblero-Berduo’s applications for asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”). For the reasons stated below, Roblero-
Berduo’s petition for review is DISMISSED in part and DENIED in part.
BACKGROUND
Petitioner was born in Guatemala in 1980. Roblero-Berduo traveled to the United States in
1999, at the age of eighteen. He left Guatemala around May 2 of that year, arriving in Phoenix,
Arizona, roughly ten or fifteen days later. His parents and two brothers remain in Guatemala.
No. 10-3380
In July 2006, Petitioner was served with a Notice to Appear before an IJ in Detroit, Michigan.
At a hearing before the IJ, Petitioner admitted most of the allegations in the Notice, claimed to have
entered the United States on May 2, 1999, and conceded his removability. Roblero-Berduo
requested withholding of removal as a refugee and CAT withholding. Though he initially
acknowledged that he was time-barred from seeking asylum, Roblero-Berduo later argued that
changed country conditions in Guatemala excused his failure to request asylum within the one-year
statutory limitation period.
Petitioner is an avowed Evangelical Christian, as are several members of his family. When
Roblero-Berduo was twelve years old, Roblero-Berduo, his father, and his brother were leaving
church. Between ten and fifteen guerrillas surrounded Roblero-Berduo’s father and accused him of
converting several guerrillas to Christianity. The guerrillas then kidnapped Roblero-Berduo’s father,
beat him, and held him for a day. Largely on account of that incident, Roblero-Berduo fears that
guerrillas will persecute him on the basis of his faith if he returns to Guatemala.
At the hearing in front of the IJ, Petitioner offered other evidence of persecution against
Evangelical Christians in Guatemala. Roblero-Berduo produced a newspaper article describing an
Evangelical Christian couple that was kidnapped, tortured, and killed after leaving a religious retreat
on an unspecified date. Roblero-Berduo also testified that guerrillas have beaten his siblings on
account of their church activities since he left Guatemala . His asylum application did not refer to
his siblings specifically but stated, “I would be subject to torture as many others in my family have
been . . . .” (A.R. 260.)
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Gang members also killed Roblero-Berduo’s cousin, Armando. Armando worked as a bus
driver at the time of the incident, and the gang members killed Armando because he refused to
surrender the money he had collected from passengers. The IJ cast doubt on whether Armando’s
murder was in any part motivated by religious persecution, reasoning that Roblero-Berduo had not
produced any evidence suggesting that motive.
The IJ found Roblero-Berduo’s testimony regarding his father’s kidnapping credible, but, in
other respects, the IJ assigned Roblero-Berduo’s testimony negative credibility. For example, on his
asylum application, Roblero-Berduo stated that he lived in Los Angeles from 2001 through 2005,
after which he moved to Detroit. In his 2007 testimony, Roblero-Berduo asserted that he had been
attending a church in Detroit for nine years. When the IJ asked him to explain the discrepancy
between these statements, Roblero-Berduo explained that he attended church in Detroit while living
in California. The IJ also noted Roblero-Berduo’s failure to provide evidence regarding his
relationship with his cousin, Armando, and evidence in support of his claim that guerillas beat his
siblings.
The IJ denied all three of Roblero-Berduo’s applications, and the BIA affirmed the IJ’s
decision. Roblero-Berduo timely petitioned for review of the BIA’s decision to this Court, which
has authority to review a BIA decision under 8 U.S.C. § 1252.
DISCUSSION
I. Asylum
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Roblero-Berduo challenges the BIA’s denial of his asylum application, arguing that the IJ
and the BIA should have concluded that changed country conditions allowed Petitioner to apply for
asylum beyond the one-year statute of limitations. Respondent contends that this Court lacks the
jurisdiction to undertake such a review, and we agree.
We review questions of subject matter jurisdiction de novo. Lacey v. Gonzales, 499 F.3d
514, 518 (6th Cir. 2007) (citing Bauer v. RBX Indus., Inc., 368 F.3d 569, 578 (6th Cir. 2004)). The
party invoking jurisdiction bears the burden of proof. Id. (citation omitted); Charvat v. EchoStar
Satellite, LLC, 630 F.3d 459, 462 (6th Cir. 2010).
The Attorney General or Secretary of Homeland Security may grant asylum to an alien who
has “a well-founded fear of persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion,” in his country of nationality or residence. 8 U.S.C.
§§ 1158(b)(1)(A), 1101(a)(42)(A). An alien must apply for asylum within one year after the date
of his arrival in the United States. § 1158(a)(2)(B). The Attorney General may consider an
application filed beyond the limitations period if the alien demonstrates “the existence of changed
circumstances which materially affect the applicant’s eligibility for asylum.” § 1158(a)(2)(D).
Section 1158(a)(3) prohibits a court from reviewing “any determination of the Attorney
General” related to an asylum application’s timeliness or an alien’s showing of changed
circumstances. Before Congress amended the Immigration and Nationality Act (“INA”) with the
Real ID Act of 1995, this Court held that § 1158(a)(3) prohibited judicial review of any denial of
asylum, where the IJ has found that an application was untimely and changed circumstances did not
extend the application deadline. See Castellano-Chacon v. INS, 341 F.3d 533, 544 (6th Cir. 2003).
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The Real ID Act did not alter § 1158(a)(3), but it recognized a court of appeals’ continuing
jurisdiction over “constitutional claims [and] questions of law raised upon a petition for review.”
8 U.S.C. § 1252(a)(2)(D). In Almuhtaseb v. Gonzales, 453 F.3d 743 (6th Cir. 2006), this Court
modified the holding of Castellano-Chacon “to bar our review of asylum applications denied for
untimeliness only when the appeal seeks review of discretionary or factual questions . . . .” Id. at
748. The BIA’s conclusion in this case that changed country conditions did not excuse Roblero-
Berduo’s untimely asylum application is a factual question that § 1158(a)(3) and Almuhtaseb
prohibit us from reaching.
Petitioner attempts to refashion the issue, arguing that he seeks review of a question of law
rather than a question of fact. According to Petitioner, the BIA applied the incorrect standard in
determining whether changed circumstances justified his late application. Petitioner points out that
governing regulations define “changed circumstances” in § 1158(a)(2)(D) as “includ[ing], but not
limited to: (A) [c]hanges in conditions of the applicant’s” resident nation, “(B) [c]hanges in the
applicant’s circumstances that materially affect [his] eligibility for asylum,” and “(C) [i]n the case
of an [applicant] who had previously been included as a dependent” on an asylum application, a
change in the relationship making him a dependent. 8 C.F.R. § 1208.4(a)(4)(i) (subdivisions in
original). Emphasizing the phrase “include, but . . . not limited to,” Petitioner argues that the BIA
erred by failing to consider the “totality of the changed circumstances.”
Petitioner’s argument is unconvincing. He does not argue that the IJ or BIA omitted specific
changed circumstances from their consideration. Rather, he recites the evidence he submitted and
suggests the IJ and BIA should have arrived at a different conclusion. No matter how Roblero-
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Berduo describes his line of argument, it plainly contests factual determinations that we may not
revisit. See Almuhtaseb, 453 F.3d at 748. Therefore, we dismiss this portion of the petition for
review for lack of jurisdiction.
II. Withholding of Removal Under the Immigration and Nationality Act and the
Convention Against Torture
A. Legal Framework
Roblero-Berduo applied for withholding of removal under INA and the CAT. See INA §
241(b)(3); 8 U.S.C. § 1231(b)(3); 8 C.F.R. § 208.18. Where the BIA issues a decision, this Court
reviews the BIA’s decision and any portions of the IJ’s ruling incorporated in that decision as the
final agency order regarding the petitioner’s removal. Zhao v. Holder, 569 F.3d 238, 246 (6th Cir.
2009). The Court reviews the IJ’s decision while considering additional comments from the BIA.
Mapouya v. Gonzales, 487 F.3d 396, 405 (6th Cir. 2007).
An applicant is eligible for withholding of removal if, upon removal to his nation of
residence, his “life or freedom would be threatened in that country because of [his] race, religion,
nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3).
The applicant must prove that he is more likely than not to suffer persecution on a protected ground.
8 C.F.R. § 1208.16(b)(2). In order to demonstrate a likelihood of persecution, an applicant must
demonstrate “more than a few isolated incidents” of “physical punishment, infliction of harm, or .
. . significant deprivation[s] of liberty” on a protected ground. Mikhailevitch v. INS, 146 F.3d 384,
390 (6th Cir. 1998). The persecution must be directed to persons who “differ (in race, religion, or
political opinion) in a way that is regarded as offensive.” Id. at 389 (quoting Surita v. INS, 95 F.3d
814, 819 (9th Cir. 1996) (citation omitted)).
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No. 10-3380
Additionally, an applicant may be eligible for withholding of removal under the CAT if he
proves that, upon removal to his nation of residence, he is likely to be tortured. 8 C.F.R. § 208.16(c).
In pertinent part, the applicable regulation defines torture as “any act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted on a person” for certain purposes,
such as intimidation, punishment, or discrimination. 8 C.F.R. § 1208.18(a)(1). A CAT applicant
must establish a “particularized threat of torture.” Castellano-Chacon, 341 F.3d at 551.
The applicant’s testimony can carry the his burden without corroboration if it is credible. 8
C.F.R. § 1208.16(b) & (c)(2). The Court reviews an IJ’s factual findings and credibility
determinations for substantial evidence. Zhao, 569 F.3d at 246. We must uphold the IJ’s factual
determination “as long as it is supported by reasonable, substantial, and probative evidence on the
record considered as a whole.” Id. at 247 (internal quotations and citations omitted). The Court may
only reverse a fact determination if a “reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B). Though an IJ’s credibility determination is entitled to
substantial deference, the adverse credibility finding must be supported by specific reasons and must
be based on an inconsistency that “go[es] to the heart of the applicant’s claim.” Sylla v. INS, 388
F.3d 924, 926 (6th Cir. 2004).
The BIA’s order denying withholding of removal must be upheld unless it is “manifestly
contrary to the law and represents an abuse of discretion.” Ali v. Reno, 237 F.3d 591, 596 (6th Cir.
2001) (citing 8 U.S.C. § 1252(b)(4)(B) and (D)). In order to obtain a reversal, a petitioner must
demonstrate that the evidence compels a conclusion contrary to that of the BIA, rather than that the
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evidence merely supports a contrary conclusion. Yu v. Ashcroft, 364 F.3d 700, 702-03 (6th Cir.
2004).
B. IJ’s Credibility Determination
Roblero-Berduo challenges the IJ’s finding that part of his testimony lacked credibility. In
her opinion denying Petitioner’s applications, the IJ explicitly assigned positive credibility to
Roblero-Berduo’s testimony as a whole. Specifically, the IJ found Roblero-Berduo’s account of his
father’s kidnapping—the incident she considered central to his applications—credible. However,
the IJ found other areas of Roblero-Berduo’s testimony incredible. Those areas included Roblero-
Berduo’s contention that his siblings suffered religious persecution, which he offered late on cross-
examination and which the IJ found lacking in support elsewhere in the record; the motivation
ascribed to the murder of his cousin; and his assertion that he attended church in Detroit while living
in California.
The reservations the IJ expressed about Petitioner’s testimony played no part in the BIA’s
decision to affirm. The BIA reasoned that the documentary evidence and the fact that Petitioner’s
family has remained in Guatemala since 1992 controverted Petitioner’s claim that he was likely to
suffer religious persecution if removed. By omitting any reference to the IJ’s credibility
determination, the BIA signaled that it would have reached the same result even if the IJ had rated
Roblero-Berduo’s testimony as entirely credible. Since Roblero-Berduo’s credibility did not affect
the Board’s decision, and because the IJ rated the most crucial portion of Petitioner’s testimony as
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No. 10-3380
positive, Petitioner’s challenge to the IJ’s credibility decision does not determine the disposition of
his petition.1
C. Immigration and Nationality Act
Roblero-Berduo mounts two challenges to the conclusion that he failed to demonstrate a
likelihood of persecution upon his removal to Guatemala. First, Roblero-Berduo argues that the IJ
and BIA overlooked substantial evidence of the steady increase in Guatamela’s crime rate and the
converse deterioration of the civil authorities’ ability to limit gang violence. Roblero-Berduo
provided the IJ with significant documentary evidence of the violence in Guatemala and the
inexperience and corruption that prevent the police from countering gang violence. On the basis of
this evidence, Roblero-Berduo contends that the IJ and BIA should have concluded he is likely to
suffer religious persecution in Guatemala.
This Court has explained that an applicant seeking withholding of removal must demonstrate
that he is at particular risk of persecution. Almuhtaseb, 453 F.3d at 750 (citing Singh v. INS, 134
F.3d 962, 967 (9th Cir. 1998)). A general or random possibility of persecution in the proposed
country of removal typically does not support withholding. Castellano-Chacon, 341 F.3d at 550;
Almuhtaseb, 453 F.3d at 750. Rather, an applicant must demonstrate a likelihood of persecution “on
1
In any event, we would have rejected Petitioner’s challenge. The most significant portion
of Roblero-Berduo’s testimony that the IJ dismissed as incredible regarded the motive for his
cousin’s murder. Roblero-Berduo failed rebut the IJ’s suggestion that the murder stemmed from a
robbery rather than from religious persecution. Because of Roblero-Berduo’s vagueness in
describing the circumstances of his cousin’s murder, the IJ did not treat that portion of the testimony
as evidence of a threat to Petitioner’s safety as an Evangelical Christian. The IJ cited specific
reasons for discounting Roblero-Berduo’s credibility on this point, and we find no evidence
compelling us to conclude that the determination was incorrect. See 8 U.S.C. § 1252(b)(4)(B).
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No. 10-3380
account of” religion or another protected ground. 8 C.F.R. § 1208.16(b). Roblero-Berduo’s
evidence of Guatemala’s gang violence supports the proposition that he is at risk of violence, but it
does not support the proposition that he is at risk of violence “on account of” his religion. Id. We
disagree with Petitioner’s contention that the aforementioned evidence compelled a different
conclusion.
Second, Roblero-Berduo argues the IJ and BIA assigned too little weight to the evidence of
religious persecution his family has suffered. We disagree. The IJ and Board offered sound reasons
for declining to treat Petitioner’s father’s kidnapping as dispositive. The BIA and IJ relied on the
fact that, even after his father’s kidnapping, many members of Roblero-Berduo’s family have
remained in Guatemala since 1992. Furthermore, Roblero-Berduo’s father continues to evangelize
door-to-door. As this Court has previously reasoned, the fact that similarly-situated family members
remain in the proposed country of removal cuts against the conclusion that a petitioner is likely to
suffer religious persecution upon removal. See Koliada v. INS, 259 F.3d 482, 488 (6th Cir. 2001).
The fact that Roblero-Berduo’s family members continue to practice their religion in Guatemala,
along with Roblero-Berduo’s failure to provide other reliable evidence of the persecution of
Evangelical Christians in Guatemala, requires this Court to affirm the order of the BIA.
D. Convention Against Torture
It is unclear from Petitioner’s brief whether he challenges the BIA’s denial of his application
for CAT withholding on appeal. Assuming he does, we deny Roblero-Berduo’s petition. The Board
affirmed the IJ’s denial of Roblero-Berduo’s CAT application on the same basis it affirmed the IJ’s
denial of his withholding of removal claim. It specifically cited the IJ’s finding that Petitioner’s
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No. 10-3380
family has remained in Guatemala since 1992 without incident and Petitioner’s failure to offer
evidence that Evangelical Christians are tortured in Guatemala. On appeal, Roblero-Berduo has
failed to demonstrate that the evidence of record compels the contrary conclusion. See Yu, 364 F.3d
at 702-03. Therefore, we deny the petition for review on this basis.
CONCLUSION
For the foregoing reasons, we DISMISS in part and DENY in part Roblero-Berduo’s
petition for review.
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