Heidy Cifuentes-Rivera v. Eric Holder, Jr.

United States Court of Appeals
For the Eighth Circuit
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No. 13-1701
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Heidy Lorena Cifuentes-Rivera
lllllllllllllllllllllPetitioner
v.
Eric H. Holder, Jr.
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: January 13, 2014
Filed: March 25, 2014
[Unpublished]
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Before GRUENDER, BRIGHT, and KELLY, Circuit Judges.
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PER CURIAM.
Heidy Cifuentes-Rivera (“Cifuentes”) petitions for review of an order of the
Board of Immigration Appeals (“BIA”) dismissing her claims for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”).
Having jurisdiction under 8 U.S.C. § 1252(a), we deny her petition.
I. Background
Cifuentes, a native and citizen of Guatemala, entered the United States illegally
in 2008. On May 11, 2009, the Department of Homeland Security issued a notice to
appear and charged Cifuentes with inadmissibility as an alien present in the United
States without having been admitted or paroled in violation of 8 U.S.C.
§ 1182(a)(6)(A)(i). Cifuentes admitted the factual allegations contained in the notice
to appear and conceded inadmissibility. As relief from removal, she applied for
asylum under 8 U.S.C. § 1158(a), withholding of removal under 8 U.S.C.
§ 1231(b)(3), and CAT protection.1
During a merits hearing before an Immigration Judge (“IJ”), Cifuentes testified
that she worked as a promoter for Pepsi in Guatemala prior to entering the United
States. She claimed that in April 2008, she received three phone calls from a gang
member who told her that “they knew when [she] was leaving work” and that they
would “hit” her if she did not “meet up with them.” Cifuentes identified the caller as
a gang member because of the way he spoke. She reported the calls to her supervisor,
but did not report them to police. She admitted that gang members did not recruit or
harm her after she received the calls.
Cifuentes also testified about her family members and acquaintances who have
been harmed by Guatemalan gang members. She claimed that gang members robbed
her sister at knifepoint and murdered her cousin and her neighbor. She also testified
that her aunt had been extorted by gang members and had observed two gang
1
The BIA concluded that Cifuentes’ asylum claim was time-barred under 8
U.S.C. § 1158(a)(2)(B). We do not have jurisdiction to review this determination.
Id. § 1158(a)(3). Additionally, Cifuentes does not seek review of the BIA’s denial
of her request for CAT protection. Therefore, we confine our analysis to Cifuentes’
claim for withholding of removal under 8 U.S.C. § 1231(b)(3).
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murders. However, Cifuentes acknowledged that her parents and two of her siblings
continue to live in Guatemala and have not been harmed by gangs.
Cifuentes fears that if she returns to Guatemala, gang members may kidnap her,
treat her “poorly,” or even kill her. She testified that she will be subject to torture by
gang members because they perceive those returning from the United States as
wealthy. She does not believe that the police can protect her.
The IJ denied Cifuentes’ requests for relief. The IJ concluded that Cifuentes’
asylum claim was time-barred under 8 U.S.C § 1158(a)(2)(B). With respect to
withholding of removal, the IJ found that Cifuentes failed to show past persecution
or a clear probability of future persecution should she return to Guatemala.
Alternatively, the IJ found that Cifuentes’ proferred social group—“individuals who
are presumed by the gangs to have money when returning to Guatemala from the
United States after having lived in the United States”—was not cognizable under 8
U.S.C. § 1101(a)(42)(A). The IJ also denied Cifuentes’ request for CAT protection,
finding that “[h]er general fear of gangs does not demonstrate that it is ‘more likely
than not’ that she would be tortured if returned to Guatemala.”
Adopting much of the IJ’s findings, the BIA affirmed the denial of relief. As
relevant to this appeal, the BIA denied withholding of removal on the ground that
Cifuentes “has not established that it is more likely than not that she will be
persecuted upon her return to Guatemala.” Cifuentes now petitions this court for
review of the BIA’s order.
II. Discussion
“We generally review the BIA’s decision as the final agency action, but where
the BIA essentially adopted the IJ’s opinion while adding some of its own reasoning,
we review both decisions.” Osonowo v. Mukasey, 521 F.3d 922, 926 (8th Cir. 2008)
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(citation omitted) (internal quotation marks omitted). “We review questions of
immigration law de novo.” Malonga v. Mukasey, 546 F.3d 546, 550 (8th Cir. 2008).
“We review an IJ’s factual determinations under the substantial-evidence test, which
requires that those determinations be supported by reasonable, substantial, and
probative evidence.” Supangat v. Holder, 735 F.3d 792, 795 (8th Cir. 2013) (per
curiam). “We will not reverse factual findings unless ‘the petitioner demonstrates
that the evidence was so compelling that no reasonable fact finder could fail to find
in favor of the petitioner.’” Id. (quoting Turay v. Ashcroft, 405 F.3d 663, 667 (8th
Cir. 2005)); see 8 U.S.C. § 1252(b)(4)(B) (“[T]he administrative findings of fact are
conclusive unless any reasonable adjudicator would be compelled to conclude to the
contrary.”).
To qualify for withholding of removal, Cifuentes has the burden of showing
a “clear probability,” Turay, 405 F.3d at 667, that her “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.” 8 C.F.R.
§ 1208.16(b); see also 8 U.S.C. § 1231(b)(3). An applicant may satisfy his or her
burden of proof with respect to withholding of removal in two ways. “First, the
applicant may show past persecution on the basis of one of the five protected grounds
listed above, thus creating a rebuttable presumption that removal would threaten [her]
life or freedom.” Malonga, 546 F.3d at 551 (citing 8 C.F.R. § 1208.16(b)(1)).
“Second, the applicant may qualify for withholding of removal if he or she establishes
that it is more likely than not that the applicant would be persecuted upon removal on
account of one of the protected grounds.” Id. at 551-52 (citing 8 C.F.R.
§ 1208.16(b)(2)). We have defined persecution as an extreme concept that involves
“the infliction or threat of death, torture, or injury to one’s person or freedom” for a
proscribed reason. Shoaira v. Ashcroft, 377 F.3d 837, 844 (8th Cir. 2004) (quotation
omitted).
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After reviewing the record, we conclude that Cifuentes has failed to satisfy her
burden of proof with respect to withholding of removal.
First, Cifuentes has failed to show that she suffered past persecution sufficient
to create a rebuttable presumption that removal would threaten her life or freedom.
Cifuentes testified that on three separate occasions over the phone, a gang member
threatened to harm her. However, she admitted that the threats went unfulfilled.
Indeed, it is undisputed that she has never been harmed by gang members. Because
“[l]ow-level intimidation and harassment alone do not rise to the level of
persecution,” Wijono v. Gonzales, 439 F.3d 868, 872 (8th Cir. 2006) (quotation
omitted), we conclude that substantial evidence supports the BIA’s conclusion that
the threats Cifuentes endured do not rise to the level of past persecution. See Setiadi
v. Gonzalez, 437 F.3d 710, 713 (8th Cir. 2006) (“Past persecution does not normally
include unfulfilled threats of physical injury.”).
Second, substantial evidence also supports the BIA’s determination that
Cifuentes failed to establish that it is more likely than not that she will be persecuted
upon her return to Guatemala. See Malonga, 546 F.3d at 551-52. Cifuentes claims
that she will be targeted for persecution in Guatemala because she will be perceived
as wealthy having lived in the United States. But other than her generalized
statements before the IJ, Cifuentes has failed to present specific, direct evidence that
those returning to Guatemala from the United States are targeted by gangs. Cf.
Matul-Hernandez v. Holder, 685 F.3d 707, 712 (8th Cir. 2012) (affirming the BIA’s
finding that those returning to Guatemala from the United States are not “subject to
a higher incidence of crime than the rest of the population”).
Cifuentes also argues that her chances of persecution increase because of her
status as a woman. To support her claim, Cifuentes cites to her testimony that
Guatemalan police “do not place importance on women” as well as a 2009 State
Department Human Rights Report describing the continuing problems with sexual
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violence against women in Guatemala. While the 2009 Report no doubt confirms the
prevalence of sexual violence in Guatemala, it does not compel a finding that
Cifuentes will more likely than not be persecuted upon her return, particularly given
record evidence that the Guatemalan government has passed new laws and bolstered
its security forces in order to alleviate gang violence. Moreover, the fact that much
of Cifuentes’ immediate family has remained in Guatemala unharmed since she fled
undercuts any assertion that she will more likely than not be persecuted upon
removal.
In sum, we conclude that substantial evidence supports the BIA’s decision to
deny withholding of removal under 8 U.S.C. § 1231(b)(3).2
III. Conclusion
For the foregoing reasons, we deny Cifuentes’ petition for review.
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2
Because we conclude that Cifuentes has failed to show either past persecution
or a clear probability of future persecution, we need not consider whether she has
satisfied the remaining requirements for withholding of removal. See 8 C.F.R.
§ 1208.16(b) (explaining that to obtain relief in the form of withholding of removal,
an applicant must demonstrate that her life or freedom would be threatened “on
account of race, religion, nationality, membership in a particular social group, or
political opinion”).
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