Bartolome Nicolas-Bartolome v. Eric Holder, Jr.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0507n.06
No. 10-4590 FILED
UNITED STATES COURT OF APPEALS May 16, 2012
FOR THE SIXTH CIRCUIT LEONARD GREEN, Clerk
BARTOLOME NICHOLAS-BARTOLOME, et al.,
Petitioners,
v. ON PETITION FOR REVIEW
FROM THE BOARD OF
ERIC H. HOLDER JR., Attorney General, IMMIGRATION APPEALS
Respondent.
/
BEFORE: SUHRHEINRICH, MOORE, and CLAY, Circuit Judges.
CLAY, Circuit Judge. Petitioners Bartolome Nicolas-Bartolome, his wife Ana Nicolas,
and their daughter Estela Nicolas Gaspar (collectively “Petitioners”) petition for review a decision
of the Board of Immigration Appeals (“BIA”) denying their application for asylum and withholding
of removal. For the reasons set forth below, we DENY the petition.
BACKGROUND
Petitioners are natives and citizens of Guatemala. Bartolome Nicolas-Bartolome and Anna
Nicolas are father and mother, respectively, to daughter Estella Nicolas Gaspar. Petitioners are
members of the Quiche tribe, an indigenous ethnic group in Guatemala, and Bartolome Nicolas
Bartolome (“Bartolome”) worked as a farmer in the fields.
Bartolome illegally entered the United States on April 25, 1989 to escape the on-going civil
war in his native country of Guatemala. On December 1, 1993, Bartolome filed an application for
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benefits under the Nicaraguan and Central American Relief Act (NACARA) as well as applications
for asylum and withholding of removal on the basis of past persecution and a well-founded fear of
persecution on account of his political opinion and his family’s membership in a particular social
group, the Quiche-speaking indigenous group.1 An immigration examiner interviewed Bartolome
in 1994. Petitioners filed applications for Special Rule Cancellation of Removal with the
Department of Homeland Security (“DHS”) on December 21, 2005.
An Asylum Officer interviewed Bartolome on September 6, 2006.2 The Asylum Officer
stated in his assessment that Bartolome requested asylum because he feared persecution in
Guatemala on account of his membership in a particular social group. The Asylum Officer noted
that Bartolome did not claim membership to a particular social group nor did he allege any
mistreatment by the guerrillas. Based on this information, the Asylum Officer found Bartolome
ineligible for asylum and referred the matter to the immigration judge (“IJ”). DHS denied
Petitioners’ applications, and on September 20, 2006, initiated removal proceedings. At the March
27, 2007 removal hearing, Petitioners admitted to the allegations in the Notice to Appear, conceded
removal, and renewed their applications for asylum and withholding of removal.
1
The IJ determined that Bartolome was ineligible for NACARA relief because he untimely
submitted his application. According to the IJ, Bartolome needed to submit his application on or
before December 31, 1991.
2
The record is void of any explanation as to why the asylum office did not interview
Bartolome upon his initial application for asylum but instead referred his application to the
immigration court in 2006.
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A. The IJ Decision
The IJ conducted a hearing on March 27, 2008. The IJ heard testimony from Bartolome, his
wife, and his friend Nicolas Bartolome. Bartolome alleged that in 1985, during the Guatemalan civil
war, Quiche-speaking guerrillas came to his family’s house, attacked him, his wife, and children, and
attempted to recruit him to join the guerrillas. The guerrillas are members of the Hispanic ethnic
group, that spoke many of Guatemala’s indigenous languages, and attempted to usurp the country’s
government. Bartolome refused to join the guerrillas stating that he “did not want to take sides in
the conflict between the guerrillas and the government.” According to Bartolome, the guerrillas
made death threats and also threatened to separate him from his family. As a result of these threats,
Bartolome stated that he joined the civil patrol to protect himself and his village. He estimated that
approximately 50 men participated in the civil patrol. Bartolome testified that the army also tried
to recruit him but he also declined because he wanted to stay neutral in the conflict. Bartolome
stated that he only recalled one direct incident with the guerrillas but he claimed that they continued
to harass his village. Bartolome further stated that he never saw any other violent attacks by the
guerrillas but did hear about the guerillas killing at least one villager and another villager was
allegedly tortured and hanged by the guerrillas.
Bartolome testified that he fled the country in 1989 and came to the United States because
he wanted to protect himself from the guerrillas. His family remained in Guatemala until 1997.
Bartolome returned to Guatemala in 1998 to attend his father’s funeral and he remained in the
country for two months. He stated that he did not encounter any problems with the guerrillas
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because they no longer existed, but he claimed that the guerrillas remained a threat because they
continued to assault and harass the indigenous population.
In their applications for asylum and withholding of removal, Petitioners also submitted
country reports and newspaper articles that discussed the country’s conditions with respect to its
indigenous population. After the conclusion of the hearing, the IJ issued an oral decision and order
denying Petitioners’ applications. First, the IJ found both Bartolome’s and his wife’s persecution
claims not credible. The IJ stated that he was unable to determine “who was injured and what the
extent of the injury might have been.” The IJ also noted that Bartolome provided inconsistent
responses during his interview with the Asylum Officer, on his asylum application, and during the
IJ hearing. These responses ranged from Bartolome never experiencing mistreatment while in
Guatemala to his testimony that the guerrillas physically attacked him and his family. The IJ stated
that even if Petitioners were found credible, Petitioners failed to demonstrate eligibility for asylum
or withholding of removal.
Second, the IJ found that Petitioners failed to meet their burden of proof that they suffered
past persecution in Guatemala. In particular, the IJ commented that Bartolome’s single incident with
the guerrillas did not constitute persecution as no blood was drawn and Bartolome did not seek
medical attention.
Third, the IJ found that Petitioners failed to establish a well-founded fear of persecution
should they return to Guatemala. The IJ concluded that “there is no reliable evidence in the record
that the guerrillas, in the one time they encountered respondent in 1985 to attempt to recruit him, did
so on account of one of the five protected grounds.” Moreover, the IJ noted that the four-year lapse
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between the time that the guerrillas allegedly attacked Petitioners in 1985 and the time that
Bartolome left Guatemala for the United States in 1989 demonstrated a lack of immediacy in any
perceived threat of persecution. Furthermore, Bartolome’s two-month return to Guatemala in 1998,
in which he was unharmed and not bothered by the guerrillas, substantially weakened his well-
founded fear of persecution claim. The IJ also found no evidence to support Bartolome’s claim that
the Guatemalan government attempted to recruit him into the army for any reason other than
defending the country.
The IJ further found unconvincing Petitioners’ claim that they are members in a particular
social group. The IJ stated that Petitioners’ social group—the Quiche ethnicity—“lacks the requisite
social visability ” because the record provides no evidence that this particular social group exists.
Moreover, the IJ determined that there is no evidence that the guerrillas are currently targeting the
Quiche ethnic group because the guerrillas are no longer in existence. The IJ noted that Bartolome
testified to this point when he stated that the guerrillas have disbanded. The IJ stated that
Petitioners’ background materials did not provide reliable evidence to support their contention that
the guerrillas were or remain a threat to the Quiche ethnic group. Based on these reasons, the IJ
concluded that Petitioners did not demonstrate eligibility for asylum or withholding of removal. The
IJ, however, granted Petitioners’ post-hearing voluntary departure request.
B. The BIA Decision
On appeal, the BIA affirmed the IJ’s decision on October 28, 2009. The BIA agreed with
the IJ’s determination that Bartolome did not provide credible testimony. In addition, the BIA noted
that the “single instance of mistreatment described by him does not rise to the level of persecution.”
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However, the BIA vacated the IJ’s order granting Petitioners voluntary departure because Petitioners
failed to provide proof of payment of the voluntary departure bonds.
Petitioners filed a petition for review to the Sixth Circuit on November 20, 2009, but the
matter was remanded on June 4, 2010 to allow the BIA to review Petitioners’ eligibility for voluntary
departure in light of its decision in Matter of Velasco, 25 I&N Dec. 143 (BIA 2009). On November
22, 2010, the BIA issued an order vacating the IJ’s order granting Petitioners voluntary departure but
reissued its prior decision affirming the IJ’s judgment of Petitioners’ eligibility for asylum and
withholding of removal. Petitioners now timely seek review of the BIA decision.
DISCUSSION
I. Statutory Framework
The Attorney General may use his discretion to grant asylum to any alien who demonstrates
that he is a “refugee” under section 208(a) of the INA, 8 U.S.C. § 1158(a). According to the statute,
a “refugee” is defined as an alien “who is unable or unwilling to return to. . . [his] country [of
nationality] because of persecution or a well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political opinion. . . . ” 8 U.S.C. §
1101(a)(42)(A). Because Petitioners filed their applications for asylum and withholding of removal
prior to May 11, 2005, the provisions of the REAL ID Act do not apply. See REAL ID Act of 2005,
§§ 101(a)(3), 101(c), 101(d), Div. B. of Pub. L. No. 109–13 Stat. 302, 303 (2005); see also Amir v.
Gonzales, 467 F.3d 921, 925 n.4 (6th Cir. 2006).
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II. Analysis
A. Adverse Credibility Determination
Where, as here, the BIA does not summarily affirm the IJ’s decision, but reviews the IJ’s
decision and issues a separate opinion, we review the BIA’s decision as the final agency
determination. Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009). Questions of law are reviewed
de novo. Id. The BIA’s conclusion that an alien failed to testify credibly is a factual determination
reviewed under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); INS v. Elias
Zacarias, 502 U.S. 478, 481 (1992); Hamida v. Gonzales, 478 F.3d 734, 736 (6th Cir. 2007). “An
adverse credibility finding must be based on issues that go to the heart of the applicant’s claim. They
cannot be based on an irrelevant inconsistency.” Liti v. Gonzales, 411 F.3d 631, 637 (6th Cir. 2005)
(quoting Sylla v. INS, 388 F.3d 924, 926 (6th Cir. 2004)).
Petitioners first argue that there is insufficient evidence to support the BIA’s adverse
credibility determination. In its order denying asylum relief, the IJ referred to a number of
discrepancies between statements Bartolome made to the Asylum Officer and his testimony at the
IJ hearing. The IJ noted that Bartolome disclosed to the Asylum Officer that his family suffered no
harm at the hands of the guerrillas. However, during the IJ hearing, Bartolome and his wife
provided inconsistent testimony as to whether the guerrillas actually injured or threatened to injure
their family. The IJ found and the BIA agreed that Bartolome provided “evasive,” “discursive,” and
“non-responsive” testimony, even when answering questions posed to him by his own counsel
regarding the mistreatment the guerilla forces inflicted on him. The IJ further stated that Bartolome
“offers a variety of formulations about what happened to him and his wife in Guatemala. Either
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[Bartolome] was injured by the guerrillas or [Bartolome] and his wife were injured by the guerrillas
or [Bartolome], his wife, and family members, including young children were injured by the
guerrillas.” (AR 108–09.) In addition, the IJ commented that his wife also appeared confused about
what happened and could not corroborate Bartolome’s testimony. The BIA further elaborated by
stating that Bartolome provided “conflicting testimony regarding which, if any, family members
were beaten by the guerrillas.” (BIA decision 2.)
The BIA’s adverse credibility determination was supported by substantial evidence.
Bartolome provided inconsistent accounts of his story throughout the application process including
in his asylum application, at his asylum interview, and before the immigration court. First,
Bartolome indicated on his asylum application that he was neither harmed nor mistreated by anyone
in Guatemala and that others similarly situated to him also did not incur attacks by the guerrillas.
Second, Bartolome admitted in his assessment with the Asylum Officer that he did not belong to any
particular social group and that he never personally experienced mistreatment nor did any members
of his family. Moreover, the assessment stated that Bartolome did not make any claims of past
persecution and his sole reason for leaving Guatemala was due to fears of poverty and economic
deprivation. The Asylum Officer noted that Bartolome did not make any statements regarding the
attack by the guerrillas or provide an explanation as to why the Quiche indigenous group was
specifically targeted by the guerrillas.
Finally, the IJ appropriately noted that Bartolome and his wife gave confusing testimony at
the IJ hearing. During the hearing, Bartolome initially stated that the guerrillas came to his house
and assaulted both him and his wife. Later, Bartolome clarified his statement and claimed that the
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guerrillas only threatened him after he refused to join their rebellion against the government.
Bartolome’s wife could not corroborate his testimony. She stated during the IJ hearing that she
recalled being hit by the guerrillas at home but then she stated that she could not remember exactly
what transpired with the guerrillas.
In addition, Bartolome’s testimony at the IJ hearing contradicts his prior statements. As
previously discussed, Bartolome initially told the Asylum Officer that neither he nor his family
suffered mistreatment by the guerrillas; however, at the IJ hearing Bartolome claimed that his
interpreter provided a faulty translation and he in fact was attacked by the guerrillas. When asked
by the IJ to explain the gaps in translation in the interview, Bartolome stated that the interpreter
conducted the interview in Spanish while his native language is Quiche. But the attorney for the
government noted that Bartolome brought his own interpreter to the interview and there was no
indication in the record to suggest that Bartolome had trouble understanding the questions posed by
the interpreter and he never raised any objections about the questions.
Accordingly, substantial evidence supports the BIA’s adverse credibility determination.
Bartolome provided inconsistent accounts of his alleged mistreatment by the guerrillas in his asylum
application, asylum interview and at the IJ hearing. In addition, Bartolome’s wife also gave
conflicting testimony during the IJ hearing, which failed to corroborate Bartolome’s fear of
persecution should the family return to Guatemala.
B. Persecution
We review relevant administrative factual findings under the deferential “substantial
evidence” standard. The BIA’s factual findings must be upheld if “supported by reasonable,
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substantial, and probative evidence on the record considered as a whole.” Yu v. Ashcroft, 364 F.3d
700, 702 (6th Cir. 2004) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (internal
quotation marks omitted)). Under this standard, findings of fact by the BIA and the IJ “are
conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8
U.S.C. § 1252(b)(4)(B).
To determine whether Petitioners qualify for asylum, we conduct a two-step inquiry: (1)
whether Petitioners qualify as refugees based on 8 U.S.C. § 1101(a)(42)(A), and (2) whether
Petitioners merit a “favorable exercise of discretion by the [IJ].” Yu, 364 F.3d at 702.
Petitioners’ eligibility for asylum depends on whether they can “establish either that [they
have] suffered actual past persecution or that [they have] a well-founded fear of future persecution,”
on account of race, religion, nationality, membership in a particular social group, or political opinion.
Pilica v. Ashcroft, 388 F.3d 941, 950 (6th Cir. 2004); see also 8 U.S.C. § 1101(a)(42)(A).
We define persecution as follows:
Persecution encompasses more than threats to life or freedom; non-life threatening
violence and physical abuse also fall within this category. However, to sustain an
asylum application, the conduct must rise above mere harassment. Types of actions
that might cross the line from harassment to persecution include: detention, arrest,
interrogation, prosecution, imprisonment, illegal searches, confiscation of property,
surveillance, beatings, or torture.
Gilaj v. Gonzales, 408 F.3d 275, 285 (6th Cir. 2005) (citations omitted). Persecution requires “more
than a few isolated incidents of verbal harassment or intimidation, unaccompanied by any physical
punishment, infliction of harm, or significant deprivation of liberty.” Almuhtaseb v. Gonzales, 453
F.3d 743, 750 (6th Cir. 2006) (quoting Mikhailevitch v. INS, 146 F.3d 384, 390 (6th Cir. 1998).
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Petitioners argue that they experienced past persecution and maintained a well-founded fear
of persecution on account of Bartolome’s political opinion and Petitioners’ membership in a
particular social group—the Quiche-speaking indigenous population. The IJ found and the BIA
agreed that Petitioners failed to establish past persecution and Petitioners could not carry their burden
of showing a well-founded fear of persecution. In making this determination, the IJ considered
Petitioners’ application for asylum, Bartolome’s interview with the Asylum Officer, Petitioners’
testimony at the IJ hearing, and country condition reports.
1. Past Persecution
Petitioners’ past persecution claim rests on their belief that the guerrillas targeted Bartolome
and his family because he expressed neutrality in the conflict between the guerrillas and the
government. As a result, Petitioners claim that he and his family were threatened and beaten.
Petitioners also argue that they are members of the Quiche-speaking indigenous population of
Guatemala, which constitutes a particular social group that is entitled to asylum under the statute.
The BIA agreed with the IJ’s determination that Bartolome “provided insufficient evidence
to establish the guerrillas mistreated him on account of his political opinion, Quiche ethnicity, or any
other protected ground.” (BIA Decision 3.) The BIA further noted that the record did not provide
any evidence to establish that the “guerrillas ascribed to any specific political opinion to him or
sought to overcome any political beliefs they perceived that he held.” (Id.)
In this case, substantial evidence supports the BIA’s determination that Petitioners did not
suffer harm rising to the level of persecution. Contrary to Bartolome’s position that his political
neutrality in the conflict between the guerrillas and the Guatemalan government constituted a
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political opinion, there is no evidence in the record to conclude that the guerrillas specifically
targeted him because of this neutrality or because of his membership with the Quiche indigenous
population. “It is not enough to present evidence that the applicant had a political opinion or was a
member of that social group. Evidence must be presented which suggests that the applicant was
persecuted on account of or because of the political opinion.” Marku v. Ashcroft, 380 F.3d 982, 986
(6th Cir. 2004) (internal citation omitted). Petitioners offer no evidence that the guerrillas knew of
or targeted Petitioners as a result of their political neutrality or membership in the Quiche group.
Petitioners’ claim also fails because Bartolome testified only to one incident where he and
his family were allegedly attacked and beaten by the guerrillas. Petitioners must show that “he or
she was specifically targeted by the government for abuse based on a statutorily protected ground.”
Gilaj, 408 F.3d at 285. In this case, Petitioners failed to provide any indication of the guerrillas’
motives in targeting the Quiche ethnic group or those who expressed neutrality in the civil war. For
these reasons, the record does not compel the conclusion that Petitioners established past persecution
or a well-founded fear of persecution on account of a protected ground. As the BIA correctly found,
this incident falls short of the showing Petitioners were required to make in order to meet their
burden of proving past persecution. See Lumaj v. Gonzales, 462 F.3d 574, 577–78 (6th Cir. 2006)
(finding that a single incident where an applicant was forced into a car, beaten, and suffered a bodily
injury did not amount to persecution because it was not severe in nature); see also Japarkulova v.
Holder, 615 F.3d 696, 701 (noting that “[i]n the vast majority of cases, . . . mere threats will not, in
and of themselves, compel a finding of past persecution.”) (citation omitted). Petitioners make no
additional claims of persecution beyond the single incident and they fail to provide proof that the
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guerrillas routinely persecuted those who expressed political neutrality or were members of the
Quiche group.
In addition, Bartolome could not specify whether the guerrillas continued to mistreat not only
him but other people in his village. When asked on direct examination whether any members of
Bartolome’s village were harmed by the guerrillas, Bartolome responded that he was unsure whether
the guerrillas posed an actual threat to his village. He stated that he did not actually see the guerrillas
harming any one but “just heard” about it. He then emphasized that he never observed any acts of
violence or mistreatment by the guerrillas. Despite this testimony, Bartolome now claims that
because he experienced a relatively non-violent attack by the guerrillas, then heard about the
possibility of threats made to other villagers, and subsequently is afraid that such possibilities may
happen to him and his family, allegedly constitutes sufficient proof of past persecution. But
Petitioners’ arguments of feared treatment are essentially based on hearsay evidence and the record
does not compel a reversal of the BIA’s conclusion on the issue of past persecution.
2. Well-Founded Fear of Persecution
Next, Petitioners claim that the record compels a finding of a well-founded fear of
persecution. Because Petitioners did not suffer past persecution, they are not entitled to a
presumption of future harm. See 8 C.F.R. § 1208.16(b)(2). Instead, Petitioners carry the burden of
showing a well-founded fear of persecution on account of a protected ground. Id. Petitioners submit
as evidence United States Department of State Country Reports and other articles, that mention
“indigenous people” as a particular social group within Guatemala.
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We agree with the BIA’s determination, which found that Petitioners provided insufficient
evidence to meet their burden of proof of establishing a well-founded fear of persecution.
Specifically, the BIA noted that Bartolome’s documentary evidence contradicts his statement that
the guerrillas “have formed gangs and continue to seek out and persecute him on a protected
ground.” (BIA Decision 3.) The BIA found that Bartolome’s evidence shows that the Guatemalan
civil war ended more than fifteen years ago and the guerrillas do not maintain a strong presence in
the country. Bartolome even conceded this point during the IJ hearing when he stated, “there is no
guerrillas anymore. There are no guerrillas. They said that there is peace there.” (AR 202.)
Moreover, Bartolome admitted during the IJ hearing that upon his return to the country in 1998, he
did not experience any harm or threats by the guerrillas. Bartolome’s two-month stay in Guatemala
is inconsistent with Petitioner’s now stated fear of returning to his native country. Bartolome’s
admission that his return to Guatemala was relatively safe and free from any interaction with the
guerrillas further supports the BIA’s decision that there is no real threat of individualized
persecution.
Additional evidence further supports the BIA’s decision that a fear of persecution no longer
exists. We previously stated in Pascual v. Mukaskey that the conflict between the guerrillas and the
Guatemalan government ended in 1996 and further stated that “as the war subsided, so did any
objectively reasonable fear of persecution.” 514 F.3d 483, 488 (6th Cir. 2007). The country reports
that Petitioners submit are also unpersuasive. The U.S. Department of State Report does not even
identify the Quiche group as part of its discussion in the indigenous people section. Furthermore,
the country report does not mention that Guatemala’s indigenous population continues to experience
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persecution by the guerrillas; rather, the report discusses their continued plight to receive equal
treatment in the country’s political, economic, and social opportunities. In sum, the BIA properly
concluded that Petitioners failed to demonstrate either past persecution or a well-founded fear of
persecution on account of a protected ground.
III. Withholding of Removal
An alien seeking withholding of removal must show a “clear probability” that he will face
persecution on account of a protected ground in the country to which he will be removed. INS v.
Stevic, 467 U.S. 407, 430 (1984). “Withholding of removal is mandatory if an alien establishes that
his ‘life or freedom would be threatened in the proposed country of removal on account of race,
religion, nationality, membership in a particular social group, or political opinion.” Pilica, 388 F.3d
at 951 (quoting 8 C.F.R. § 208.16(b)). Under this standard, an alien must show that it is “more likely
than not” that he will be subject to persecution on account of a protected ground if returned to his
native country. Pilica, 388 F.3d at 951.
To qualify for withholding of removal, an alien must show a “clear probability” of
persecution. Liti, 411 F.3d at 640. In addition, an alien must establish that “it is more likely than
not that [he] . . . would be persecuted on account of [a protected ground] upon removal to that
country.” Haider v. Holder, 595 F.3d 276, 284 (6th Cir. 2010) (alterations in original) (quoting 8
C.F.R. § 208.16(b)(2)).
Petitioners contend that the BIA erred in denying their application for withholding of
removal. Under 8 U.S.C. § 1231(b)(3), “[a]n alien seeking withholding of removal must
demonstrate that there is a clear probability that he will be subject to persecution if forced to return
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to the country of removal.” Singh v. Ashcroft, 398 F.3d 396, 401 (6th Cir. 2005) (internal quotation
marks and citation omitted). “Because an alien must meet a higher burden in establishing a right to
withholding of removal than in demonstrating asylum eligibility, an alien who fails to qualify for
asylum necessarily does not qualify for withholding of removal.” Id. The clear probability standard
is higher than the “well-founded fear” standard necessary to establish eligibility for asylum and
requires Petitioners to show that it is “more likely than not” that they will be subject to persecution
on account of a protected ground if returned to Guatemala. Because Petitioners failed to satisfy their
burden for asylum protection, Petitioners also failed to qualify for withholding of removal.
CONCLUSION
Substantial evidence supports the BIA’s adverse credibility determination as Petitioners
provided inconsistent testimony during the IJ hearing and there were several noted discrepancies
within Petitioners’ applications for asylum and withholding of removal concerning the perceived
threat of the guerrillas. See El Moussa v. Holder, 569 F.3d 250, 257 (6th Cir. 2009). In addition,
Petitioners failed to establish past persecution or a well-founded fear of persecution if removed to
Guatemala that would entitle them to asylum or withholding of removal. For these reasons, we
DENY the petition for review.
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