Cruz-Samayoa v. Holder

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0178p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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LAZARO CRUZ-SAMAYOA; ABIGAIL ONOFRE

Petitioners, --
CRUZ-GONZALEZ; DELIA SUSANA CRUZ,

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No. 09-3824

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v.

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Respondent. -
ERIC H. HOLDER, JR., Attorney General,
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On Petition for Review from the
Board of Immigration Appeals.
Nos. A096 351 548; A079 538 299; A072 521 415.
Decided and Filed: June 21, 2010
Before: NORRIS, MOORE, and McKEAGUE, Circuit Judges.

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COUNSEL
ON BRIEF: Jamie B. Naini, LAW OFFICES OF JAMIE B. NAINI, Bartlett, Tennessee,
for Petitioners. Kristofer R. McDonald, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
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OPINION
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KAREN NELSON MOORE, Circuit Judge. This case requires us to differentiate
between a fear of legitimate criminal prosecution and illegitimate persecution for purposes
of eligibility for humanitarian relief from removal under the Immigration and Nationality Act
(“INA”). Lazaro Cruz-Samayoa (“Cruz”) and his two adult children, Abigail Onofre Cruz-
Gonzalez (“Abigail”) and Delia Susana Cruz (“Delia”), collectively, the Cruz family,
petition this court for review of a Board of Immigration Appeals (“BIA”) order denying their
respective applications for asylum, withholding of removal, and relief under the Convention
Against Torture (“CAT”). Because Cruz has failed to establish that he is a refugee within

1
No. 09-3824 Cruz-Samayoa et al. v. Holder Page 2

the meaning of the INA, and Abigail and Delia have failed to show that they cannot
reasonably and safely relocate within Guatemala to avoid potential harm, we DENY their
petitions for review.

I. BACKGROUND

A. Factual Background

For the purposes of the Cruz family’s applications for relief, the trouble began in
Guatemala in September 2003 when Hector Reyes Perez (“Reyes”), a community leader and
peasant farmer, disappeared. Reyes was the manager of several swaths of farmland owned
by the Spaniard Carlos Vidal Fernandez Alejos (“Vidal”), including one parcel named Nueva
Linda in the Guatemalan state of Retalhuleu. At the time of Reyes’s disappearance, the
Guatemalan government had initiated a program under which it agreed to redistribute parcels
of farmland, including some that Vidal owned, to the peasant farmers in the region. Reyes
was allegedly helping to organize the government’s transfer of land, which was clearly in
direct conflict with the interests of Vidal, his employer. Because of Reyes’s role in the
redistribution plan, many individuals from Retalhuleu, including Cruz, believed that Vidal
had orchestrated Reyes’s disappearance and suspected death in order to prevent the seizure
of his land. At the time of Reyes’s disappearance, Cruz was still residing in the United
States, but apparently motivated by the prospect of obtaining some land as a result of the
government’s redistribution efforts, Cruz returned to Guatemala in January 2004.

Despite the general belief among the peasant farmers that Vidal was responsible for
Reyes’s disappearance, the Guatemalan government never brought charges against Vidal,
and many organizations, including Amnesty International, questioned the thoroughness of
the government’s investigation. To protest the government’s inaction, approximately nine
hundred peasants, many of whom were members of the Association of Farmers’
Development Committees (“CODECA”), peacefully occupied Nueva Linda for eight months
in early 2004. Cruz took part in this protest and was nominated to be one of the four
spokespersons for CODECA. According to Cruz, their hope was to pressure the authorities
into investigating further Reyes’s disappearance. Cruz also testified that this initial
occupation was authorized by court order. As a spokesperson, Cruz engaged in negotiations
between the peasant farmers and the Guatemalan government, which ultimately proved
No. 09-3824 Cruz-Samayoa et al. v. Holder Page 3

fruitless. At some point either during or following the negotiations, the governor of
Retalhuleu ordered the peasant farmers to vacate the property. The record appears to
indicate that the original judicial order allowing the peaceful occupation had been overruled
and that the eviction order was valid.

According to Cruz’s testimony and the articles that he submitted in support of his
application for relief, when the peasant farmers refused to vacate the land, around 1000
Guatemalan police, known as the National Civilian Police (“PNC”), entered Nueva Linda
in an attempt to remove the protestors and enforce the eviction order. Unfortunately, a
violent confrontation ensued. An Amnesty International report, which Cruz introduced as
1
part of the record, indicates that “[t]he first line of police [to enter Nueva Linda] was
unarmed.” Amnesty Int’l, Guatemala: Land of Injustice? (Mar. 2006), available at
http://www.amnesty.org/es/library/info/AMR34/002/2006. Press reports in the record
indicate, however, that as the officers advanced the occupying peasant farmers attacked
the PNC with numerous weapons, including AK-47s, rifles, firebombs, pyrotechnic
devices, and machetes. One article that Cruz submitted states that as the PNC advanced,
“two agrarian leaders” on horseback “distribute[d] ammunition[] to their companions,”
encouraging them to fight the police. Pet. App’x at 202 (Prensa Libre Art.). Not
surprisingly, the police responded with tear gas, batons, and perhaps firearms, although
it is not entirely clear from the record. Cruz testified that despite the press accounts and
the Guatemalan government’s assertions, the peasant farmers did not, in fact, bring
weapons to the occupation of Nueva Linda. Instead, Cruz claims that the PNC and
individuals working in conjunction with Vidal introduced weapons into the otherwise
peaceful protest in order to undermine the objectives of the occupation. Cruz testified
that he did not possess any weapons and did not harm any police officers. He stated that
he engaged in only peaceful protest tactics—hanging signs and demanding justice. At
the end of the ordeal, however, there were scores injured and at least ten individuals
dead, including seven peasant farmers and three police officers.

1
Cruz’s version of the report appears to be a very poor, perhaps automated, translation from
Spanish into English, and it is extremely difficult to decipher. Because the cover page of the report
includes a web address to Amnesty International’s English-language version, we rely on that document
instead of the translated version in the record.
No. 09-3824 Cruz-Samayoa et al. v. Holder Page 4

Following the incident at Nueva Linda, the Guatemalan government issued an
arrest warrant for Cruz based on his alleged participation and leadership role at Nueva
Linda. Because Cruz believed that the Guatemalan government was attempting to
prosecute him based solely on his political opinion, and not for any legitimate law-
enforcement purpose, he fled Guatemala to the United States. Cruz testified that given
the imbalance of power between the landed class and the peasants, there was no hope for
a fair trial in Guatemala. Both Abigail and Delia testified that based on their relationship
to their father they also feared being returned to Guatemala. Specifically, they believed
that Cruz’s political opinion would be imputed to them and that they would become the
targets of violence at the hands of Cruz’s enemies, including Vidal and the rest of the
property owners of Spanish descent in the region.

B. Procedural History

The Immigration Judge (“IJ”) held a hearing on the merits of Cruz’s, Abigail’s,
and Delia’s applications for asylum, withholding of removal, and CAT relief in July
2007.2 The IJ found that the Cruz family was “basically credible.” Pet. App’x at 27 (IJ
Decision). Specifically with regard to Cruz, the IJ concluded that he would “largely
accept . . . Cruz’s discussion of what happened.” Id. In fact, the IJ did not believe Cruz
to be “lying about anything that actually happened,” and concluded that Cruz testified
credibly “as to what happened, what he thinks happened, or what he believes in his
opinion is the motivation of the people in Guatemala.” Id. Despite this conclusion,
however, the IJ then refused to “accept [Cruz’s] description of what went on on the
Vidal farm,” concluding that all of Cruz’s supporting documentation indicated that it was
not “a peaceful demonstration of any sort.” Id. Moreover, the IJ specifically rejected
Cruz’s claim that Vidal was responsible for the introduction of weapons, deeming Cruz’s
assertion “impossible to believe.” Id. at 28.

2
Cruz had filed his original application for asylum in 1994. At the 2007 hearing, the IJ concluded
that Cruz had “abandoned” the original application by returning to Guatemala in the interim period. Pet.
App’x at 20 (IJ Decision). Instead of having Cruz file a new application, however, the IJ agreed to
evaluate the Cruz family’s claims to the extent that they were predicated solely on those events occurring
in and after 2004. At no point before the agency or before this court has Cruz challenged this
determination.
No. 09-3824 Cruz-Samayoa et al. v. Holder Page 5

The IJ ultimately concluded that Cruz “was involved in an armed confrontation
with the police” at the Nueva Linda farm, “which was certainly illegal at the time and
place of its occurrence,” and that Cruz was barred from asylum and withholding of
removal. Id. The IJ alternatively concluded that Cruz was “clearly a terrorist as that
term is defined in the [INA],” and would be barred from relief on that ground as well.
Id. With respect to Abigail and Delia, the IJ acknowledged that “[t]here is some level
of risk to them” as a result of their father’s activities but that it would be “extremely
unlikely that anyone would connect them with their father’s activism” and cause them
harm provided that “they returned to Guatemala City or some other part of the country.”
Id. at 30. Furthermore, the IJ concluded that Abigail and Delia had failed to establish
that “members of a family” amounted to a particular social group under the INA and
would have failed to meet the burden to show eligibility for relief even assuming that
relocation within Guatemala were not a possibility. Id. at 31. Turning to the Cruz
family’s CAT claims, the IJ found that “there is no evidence in th[e] record that would
indicate that if [Cruz] were to be prosecuted under the warrant for his arrest in
Guatemala that he would more likely than not be tortured.” Id. at 29–30. The IJ further
concluded that “there is no evidence whatsoever that the children would be tortured by
anyone, let alone someone with which the government acquiesces or turns a blind eye
to.” Id. at 30.

The BIA affirmed the IJ’s decision denying asylum and withholding of removal
to Cruz on the ground that Cruz had failed to establish that the criminal charges he faces
in Guatemala are, in fact, pretext for persecution based on his political opinion. Because
Cruz had failed to meet his burden to show that he faces persecution on political
grounds, the BIA expressly declined to “reach the Immigration Judge’s alternate
determination that [Cruz] is a terrorist and thus barred from obtaining [] relief.” Pet.
App’x at 8 (BIA Op.). Disposing of Abigail’s and Delia’s claims, the BIA ruled that
they had not shown that they could not reasonably relocate within Guatemala in order
to avoid harm, thus failing to meet their burden for asylum or withholding of removal
based on fear of future persecution. Lastly, the BIA upheld the IJ’s denial of CAT relief
on the grounds that none of the members of the Cruz family had presented sufficient
No. 09-3824 Cruz-Samayoa et al. v. Holder Page 6

evidence to show “that they face a clear probability of torture in Guatemala.” Id. The
Cruz family timely sought review of the decision of the BIA.

II. ANALYSIS

A. Standard of Review

Because the BIA adopted and supplemented the IJ’s decision, we review the
opinion of the IJ in conjunction with the BIA’s additional comments and discussion. See
Bi Feng Liu v. Holder, 560 F.3d 485, 490 (6th Cir. 2009). “We review the IJ’s and
BIA’s findings for substantial evidence and may reverse only if the decision was
‘manifestly contrary to law,’ 8 U.S.C. § 1252(b)(4)(C), that is, if the evidence ‘not only
supports a contrary conclusion, but indeed compels it,’” Haider v. Holder, 595 F.3d 276,
281 (6th Cir. 2010) (quoting Ouda v. INS, 324 F.3d 445, 451 (6th Cir. 2003)).

B. IJ’s Credibility Determination

A preliminary matter that this court must address before reaching the issue of
whether Cruz has established eligibility for relief from removal involves a dispute over
the IJ’s credibility finding. Cruz argues that the IJ’s finding on his credibility was
inconsistent. Cruz claims that, in one breath, “[t]he IJ explicitly [found] Mr. Cruz to be
credible and state[d]” that the IJ did not believe Cruz to be “‘lying about anything that
actually happened,’” but, “[i]n almost in the same breath . . . the IJ disavow[ed] Mr.
Cruz’s account of the situation at Mr. Vidal’s farm.” Appellant Br. at 27 (quoting IJ’s
Decision). Cruz asserts that “[i]t is extremely unclear exactly what portion of Mr. Cruz’s
testimony the IJ believed if he did not believe the portion regarding the farmer’s group,”
id., and he argues before this court that he “must be found credible” and that “his
testimony treated as such.” Id. at 28. The BIA made no finding with regard to
credibility.

We agree with Cruz that there is some tension between the IJ’s determination that
Cruz was “basically credible” and that he was not lying “about anything that actually
happened,” Pet. App’x at 27 (IJ Decision), and the subsequent conclusion that Cruz’s
account of the confrontation at Nueva Linda was “impossible to believe,” id. at 28. In
No. 09-3824 Cruz-Samayoa et al. v. Holder Page 7

essence, despite a statement that Cruz was not lying, the IJ did appear to treat his
testimony as untrue, and the IJ’s conflicting statements make it difficult to determine
what the IJ actually credited. Recently, in Haider, a panel of this court confronted a
similar challenge to an IJ’s ambiguous credibility finding when, as here, the credibility
determination was not the basis of the agency’s ultimate decision to deny relief. In
Haider, the panel held that “when an IJ or the BIA expresses suspicion about an
applicant’s lack of credibility but the BIA fails to make an explicit adverse determination
and instead denies relief on some other basis, we will assume that the applicant was
credible in order to review the actual grounds for the ruling.” Haider, 595 F.3d at 282.
“If we conclude that the stated basis for denying relief was supported by substantial
evidence, further review is foreclosed,” but “[i]f the evidence compels the opposite
result, however, we will remand for a credibility determination.” Id. (citing
Cordon-Garcia v. INS, 204 F.3d 985, 993–94 (9th Cir. 2000)); see also Maklaj v.
Mukasey, 306 F. App’x 262, 264 n.4 (6th Cir. 2009) (unpublished opinion).

We will thus assume for the purposes of this appeal that Cruz testified
credibly—i.e., that although Cruz was a leader of a group of individuals that ultimately
engaged in a protest that turned violent, Cruz himself was unarmed, did not engage in
violent behavior, and was not responsible for arming the peasants who did possess
weapons. Ultimately, however, the assumption that Cruz testified credibly is irrelevant
because, for the reasons outlined below, we hold that the BIA’s finding that Cruz will
not be persecuted upon his removal to Guatemala is supported by substantial evidence,
and no remand is required. Cf. Haider, 595 F.3d at 283.

C. Cruz Is Ineligible for Asylum and Withholding of Removal

“The disposition of an application for asylum involves a two-step inquiry:
(1) whether the applicant qualifies as a refugee as defined in 8 U.S.C. § 1101(a)(42)(A),
and (2) whether the applicant merits a favorable exercise of discretion by the Attorney
General.” Kouljinski v. Keisler, 505 F.3d 534, 541 (6th Cir. 2007) (internal quotation
marks omitted). “[T]o qualify as a refugee,” the applicant must establish “that he or she
has suffered past persecution on the basis of race, religion, nationality, social group, or
No. 09-3824 Cruz-Samayoa et al. v. Holder Page 8

political opinion; or . . . show[] that he or she has a well-founded fear of persecution on
one of those same bases.” Id.; see also 8 C.F.R. § 1208.13(b). If an individual is eligible
for asylum, then the applicant bears the “burden of establishing that the favorable
exercise of discretion is warranted.” Kouljinski, 505 F.3d at 542 (internal quotation
marks omitted).

“To prevail on a petition for withholding of removal under the INA, an alien
must show that there is a ‘clear probability,’ that is, that ‘it is more likely than not,’ that
[he or] she would be subject to persecution on the basis of one of these five grounds
were [he or] she removed from this country.” Almuhtaseb v. Gonzales, 453 F.3d 743,
749 (6th Cir. 2006) (quoting Liti v. Gonzales, 411 F.3d 631, 640–41 (6th Cir. 2005), and
8 C.F.R. § 1208.16(b)(2)). “By contrast, to be eligible for withholding of removal under
the CAT, the ‘applicant bears the burden of establishing it is more likely than not that
he or she would be tortured if removed to the proposed country of removal.’” Id.
(quoting Liti, 411 F.3d at 641).

The BIA’s conclusion that Cruz is not a “refugee” and is ineligible for asylum
or withholding of removal because he does not fear persecution on account of his
political opinion is supported by substantial evidence. Accordingly, we deny Cruz’s
petition for review.3 As this Circuit has recognized previously, there is a marked
distinction between persecution and criminal prosecution. See, e.g., Perkovic v. INS, 33
F.3d 615, 622 (6th Cir.1994); Hajdari v. Gonzales, 186 F. App’x 565, 568 (6th Cir.
2006) (unpublished opinion); Lakaj v. Gonzales, 158 F. App’x 678, 683 (6th Cir. 2005)
(unpublished opinion). That is not to say, however, that there are not instances in which
criminal prosecution can amount to persecution within the meaning of the INA. Haider,
595 F.3d at 286–87 (“[T]he 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.” (internal
quotation marks and alteration omitted)).

3
Cruz also challenges the IJ’s alternative conclusion that he is a “terrorist” within the meaning
of the INA. The BIA expressly declined to opine on the IJ’s conclusion, and as it does not affect the
outcome of this proceeding, we offer no opinion on that issue.
No. 09-3824 Cruz-Samayoa et al. v. Holder Page 9

Some courts have noted that persecution does not exist where the law that the
native country seeks to enforce in its criminal prosecution is “generally applicable.”
Saleh v. U.S. Dep’t of Justice, 96 F.2d 234, 239 (2d Cir. 1992); Abedini v. INS, 971 F.2d
188, 191 (9th Cir. 1992). Still other courts have noted that petitioners fail to establish
persecution where the law is “fairly administered.” Scheerer v. U.S. Att’y Gen., 445 F.3d
1311, 1315 (11th Cir. 2006); Shardar v. Ashcroft, 382 F.3d 318, 323 (3d Cir. 2004);
Ngure v. Ashcroft, 367 F.3d 975, 991 (8th Cir. 2004); Ali v. Gonzales, 190 F. App’x 13,
16 (1st Cir. 2006) (unpublished opinion).

A petitioner may also establish that prosecution reaches the level of persecution
if the individual can demonstrate that the prosecution or criminal investigation “was
actually pretext for persecution” on account of one of the INA’s enumerated grounds.
Lakaj, 158 F. App’x at 683; see Hajdari, 186 F. App’x at 568. To determine whether
the government’s motivations for criminal prosecution are improper, this Circuit has
looked at the substance and context of the law that the native country is attempting to
enforce. For example, in Perkovic, a panel of this Circuit held that criminal prosecution
under laws in the former Yugoslavia that “outlaw[ed] and punishe[d] peaceful
expression of dissenting political opinion, the mere possession of Albanian cultural
artifacts, the exercise of citizens’ rights to petition their government, and the association
of individuals in political groups with objectives of which the government d[id] not
approve” amounted to political persecution and not legitimate criminal prosecution.
Perkovic, 33 F.3d at 622; see also Palushaj v. INS, No. 93-3196, 1994 WL 198169, at
*2 (6th Cir. May 17, 1994) (unpublished opinion) (indicating that charges of being a
“counter-revolutionary” may form the basis of a persecution claim because
“‘counterrevolution’ is a classic political crime”); Li Wu Lin v. INS, 238 F.3d 239 (3d
Cir. 2001) (inquiring into the context of a trespassing charge that was levied immediately
after the massacre in Tiananmen Square). Moreover, “prosecution under [a] law of
general applicability can [also] justify asylum or withholding of [removal]” in cases
where “the punishment under the law is sufficiently serious to constitute persecution.”
Shardar, 382 F.3d at 323 (citing Fisher v. INS, 79 F.3d 955, 962 (9th Cir. 1996), for the
proposition “that there are ‘two exceptions to the general rule that prosecution does not
No. 09-3824 Cruz-Samayoa et al. v. Holder Page 10

amount to persecution—disproportionately severe punishment and pretextual
prosecution’”).

In the instant case, the Guatemalan government has filed charges against Cruz
for his participation and leadership in the events that took place at Nueva Linda, and it
is for this reason that Cruz entered the United States most recently. The indictment and
warrant are not part of the record, but according to an e-mail from the U.S. Citizenship
and Immigration Services Fraud Detection Unit, the INTERPOL report indicates that as
a result of Cruz’s “organization and incitement of rural inhabitants to resist Guatemalan
security forces, . . . [t]he charges outstanding against Cruz-Samayoa are murder,
attempted murder, serious injuries, sedition, public intimidation, instigation to commit
crimes, illegal grouping of armed people, assault, resistance with specific aggravations,
and disobedience.” Pet. App’x at 188.4 Based on the INTERPOL report, the laws that
Guatemala seeks to enforce against Cruz are laws of general applicability and their
underlying substance is not questionable. In fact, many, if not all, of the charges would
constitute crimes under the laws of the United States. See Guchshenkov v. Ashcroft, 366
F.3d 554, 559 (7th Cir. 2004) (stating “that prosecution for activities that would be
illegal under our own laws is not grounds for asylum . . .”); cf. Perkovic, 33 F.3d at 622.

Furthermore, there is no record evidence indicating that the Guatemalan
government’s desire to prosecute Cruz criminally is, in reality, based on the Guatemalan
government’s dislike of his political opinion. Cruz claims that the pretextual nature of
the charges is evident because they (1) are baseless and (2) include a charge for narcotics
trafficking, which has nothing to do with the Nueva Linda confrontation. Neither of
these facts, however, demonstrates pretext in this case. First, neither the BIA nor the
federal court of appeals has the jurisdiction to determine whether Cruz is, in fact, guilty
of the charges levied, and the mere fact that he proclaims innocence is an insufficient
basis upon which to determine that the charges are pretextual. See, e.g., Tadeo v. INS,
No. 94-70643, 1996 WL 207141, at *2 (9th Cir. Apr. 26, 1996) (unpublished

4
Although Cruz challenged the admissibility of the e-mail relating the contents of the INTERPOL
report before the IJ, Cruz neither appealed the IJ’s decision to admit the e-mail as evidence of the charges
to the BIA nor challenges its evidentiary value in this court.
No. 09-3824 Cruz-Samayoa et al. v. Holder Page 11

memorandum); Castaneda v. INS, 23 F.3d 1576, 1578 (10th Cir. 1994). According to
the objective record evidence that Cruz himself introduced, he was a leader of or
spokesperson for the peasant farmer group at Nueva Linda, and the confrontation
between that group and the police did turn extremely violent, resulting in several deaths.
Even crediting Cruz’s testimony that he did not harm any police officers and was
unarmed, Guatemala has the right “to protect [itself] from criminals,” Perkovic, 33 F.3d
at 622, which includes bringing charges against and prosecuting those that it suspects
are guilty of legitimate crimes.

Moreover, Cruz has failed to show that he would be unable to contest these
“baseless” charges in Guatemala. Although Cruz did introduce testimony from Harry
Vanden, Ph.D., an expert in Guatemalan political conflicts, that Cruz’s status as a
peasant farmer made the likelihood of a “fair trial” in Guatemala “very, very low[,]” Pet.
App’x at 93 (Vanden Test.), the IJ only partially credited this testimony because “Dr.
Vanden was not able to back up some of his statements with specific instances,” Pet.
App’x at 25 (IJ Decision), and appeared to advocate on behalf of the Cruz family, as
opposed to acting as an objective expert. The U.S. State Department 2006 Country
Report, which was also submitted as evidence, likewise provides little support for the
conclusion that Cruz’s trial would be unfair or that he would be unable to make his claim
of innocence before a Guatemalan tribunal. See Pet. App’x at 172–73 (U.S. Dep’t State
Country Report 2006). The Guatemalan “constitution provides for the right to a fair,
public trial, the presumption of innocence, the right to be present at trial, and the right
to counsel.” Id. at 173. And although there were some reports of “corruption,
ineffectiveness, and manipulation of the judiciary,” the country’s highest court
“continued to seek the suspension of judges and to conduct criminal investigations for
improprieties or irregularities in cases under its jurisdiction,” id. at 172, and “[t]here
were no reports of political prisoners or detainees,” id. at 173. In short, the record
evidence fails to compel the conclusion that Cruz would not be able to contest the
charges and receive a fair trial upon return to Guatemala.
No. 09-3824 Cruz-Samayoa et al. v. Holder Page 12

Cruz’s second assertion of pretext concerns the purported inclusion of a drug-
trafficking charge in the indictment. This claim is also without merit. Notably, the
INTERPOL report does not include such a charge. In fact, neither does the letter from
Cruz’s Guatemala-based defense attorney, which was submitted as evidence before the
IJ. That letter simply states that the case against Cruz in relation to his activities at
Nueva Linda is pending before the “Court of First Instance of Criminal Narcotrafficking
and Crimes Against the State of Retalhuleu.” Pet. App’x at 186–87 (Att’y Letter). Thus,
although Cruz may have realistically believed that he was subject to a drug charge,
revealing the Guatemalan government’s nefarious motive, the objective record evidence
indicates differently. See Shardar, 382 F.3d at 323.

In sum, the record evidence simply does not compel the conclusion that Cruz
fears illegitimate persecution on account of his political opinion as opposed to legitimate
criminal prosecution. See Ngure, 367 F.3d at 991 (“Ngure has not produced evidence
that the criminal charges against him were improperly motivated or that he would
receive an unfair trial.”). Again, Cruz admitted to being one of the leaders of a group
of individuals occupying Nueva Linda, and it is clear that some of those individuals
ultimately engaged in an extremely violent conflict with Guatemalan police that resulted
in at least ten deaths, regardless of whether Cruz himself injured police officers or
incited the violence. His leadership role in this confrontation is sufficient to make him
criminally liable. See, e.g., id. (“The evidence . . . does not compel the conclusion that
the Kenyan government’s issuance of an arrest warrant for violating a bond and
reporting requirement imposed in the wake of a riotous demonstration was really an
effort to persecute Ngure because of his political opinion.”); Shardar, 382 F.3d at 323
(“[T]he evidence supports the conclusion that Shardar was not persecuted on account of
his political opinion; rather, he was legitimately prosecuted for participation in a violent
political demonstration.”); Xue v. Gonzales, 121 F. App’x 752, 753 (9th Cir. 2005)
(unpublished opinion) (“Substantial evidence supports the IJ’s finding that petitioner
failed to establish past persecution or a well-founded fear of future persecution.
Petitioner participated in a workplace demonstration that escalated into a physical fight
and left many individuals injured. Petitioner received two court summonses regarding
No. 09-3824 Cruz-Samayoa et al. v. Holder Page 13

the assaults which he ignored and fled the country fearing arrest.”); Ahmed v. INS, 202
F.3d 277 (table) (9th Cir. 1999) (unpublished memorandum) (holding the petitioner “had
failed to show . . . a well-founded fear of persecution” and was “fleeing legitimate
prosecution in his home country” when the petitioner “was arrested . . . because he
participated in a violent demonstration in which people were armed with hockey sticks
and pipe bombs”). As a result, Cruz is ineligible for asylum and withholding of removal,
and we DENY his petition for review.

D. Abigail and Delia Failed to Meet the Burden for Asylum and Withholding
of Removal
Turning to Abigail and Delia’s claims for asylum and withholding of removal,
we also deny their petitions for review. Both Abigail’s and Delia’s applications for
relief are based solely upon their fear of future persecution at the hands of the Spanish
farm owners and their henchmen who allegedly want to capture or kill their father based
on his past political activism. Pet. App’x at 112 (Abigail Test.); id. at 117 (Delia Test.).
The BIA agreed with the IJ that although Abigail and Delia might face some risk of
future harm at the hands of their father’s enemies and as a result of their father’s political
activism, they had failed to show that they could not reasonably relocate somewhere
outside of their small town in Guatemala where they would be safe. The BIA thus
denied their petitions because, under the INA, “[a]n applicant does not have a
well-founded fear of persecution if the applicant could avoid persecution by relocating
to another part of the applicant’s country of nationality . . . if under all the circumstances
it would be reasonable to expect the applicant to do so.” 8 C.F.R. § 1208.13(b)(2)(ii).

Abigail and Delia did not challenge in their opening brief before this court the
agency’s determination that they could internally relocate, instead arguing only that the
IJ erred in concluding that their membership in the Cruz family did not constitute a
particular social group.5 Appellant Br. at 23–27. In response to the Government’s

5
As the BIA rested its judgment solely on their ability to internally relocate, it is not the place of
this court to pass upon the particular-social-group issue in the first instance here. See INS v. Ventura, 537
U.S. 12, 16 (2002) (“Generally speaking, a court of appeals should remand a case to an agency for decision
of a matter that statutes place primarily in agency hands.”). We do note, however, that the IJ’s
determination that a family cannot constitute a particular social group is called into question by a recent
published decision from this Circuit, Al-Ghorbani v. Holder, 585 F.3d 980, 995–97 (6th Cir. 2009).
No. 09-3824 Cruz-Samayoa et al. v. Holder Page 14

argument that they have thus waived this dispositive issue before this court, however,
in their reply brief Abigail and Delia strangely assert that they did not challenge the
finding “because there was no need to do so.” Reply Br. at 9. They appear to argue that
because they believe that it was the government’s burden to show that Abigail and Delia
could avoid persecution by relocating, “there was no need to address” the IJ’s or BIA’s
conclusions that they could internally relocate. Abigail and Delia’s argument seriously
misunderstands appellate practice and review. Even if the burden of proof to show that
relocation is possible rested with the government—which, under the circumstances of
the instant case, it did not6—in order to preserve the agency’s dispositive conclusion for
appellate review, Abigail and Delia were still under an obligation to challenge the
adverse determination on some ground, whether it be because the agency misplaced the
burden of proof or on the ground that the agency’s finding simply was not supported by
substantial evidence. In failing to assert any argument challenging the agency finding
that they can internally relocate, and by, in fact, asserting that they did not “need to do
so,” the matter is waived. Bi Feng Liu, 560 F.3d at 489 n.4 (6th Cir. 2009) (“[A]n issue
that is not raised in a party’s briefs may generally be deemed waived.”). We therefore
DENY the petitions for review of the BIA’s denial of Abigail’s and Delia’s applications
for asylum and withholding of removal.7

6
According to the Federal Regulations, “In cases in which the applicant has not established past
persecution the applicant shall bear the burden of establishing that it would not be reasonable for him or
her to relocate, unless the persecution is by a government or is government-sponsored.” 8 C.F.R.
§ 1208.13(b)(3)(I); see also Rahadi v. Mukasey, 307 F. App’x 197, 203 (10th Cir. 2009) (unpublished
opinion) (“Both petitioners claim they will suffer future persecution based on their religion if removed to
Indonesia,” but, the “[p]etitioners have not met their burden of proof that they could not relocate to a
relatively safe area of Indonesia.”). In the instant case, both Abigail and Delia based their application on
a fear of future persecution and testified that they fear harm only at the hands of the Spanish farm owners
and their henchmen—i.e., neither government nor government-sponsored individuals. See Mejilla-Romero
v. Holder, 600 F.3d 63, 74–75 (1st Cir. 2010) (“Mejilla-Romero’s argument that the government failed to
produce evidence that he could safely relocate elsewhere within Honduras misplaces the burden of proof.
Having failed to show that he suffered past persecution, it was Mejilla-Romero’s burden to demonstrate
that he could not avoid future persecution by moving to another part of Honduras.”).
7
Even if we were to address the merits, we observe that Abigail and Delia have not presented any
evidence that internal relocation would not be reasonable.
No. 09-3824 Cruz-Samayoa et al. v. Holder Page 15

E. The CAT Claims Are Without Merit

Finally, we also deny the Cruz family’s petitions for review under the
Convention Against Torture. Under CAT, “removal must be withheld if ‘it is more
likely than not that [the applicant] would be tortured if removed to the proposed country
of removal.’” Haider, 595 F.3d at 289 (alteration in original) (quoting 8 C.F.R.
§ 1208.16(c)(2)). “Torture is ‘an extreme form of cruel and inhuman treatment,’” and
includes “‘any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted’ to extract information, punish, intimidate, coerce, or otherwise
discriminate, ‘when such pain or suffering is inflicted by or at the instigation of or with
the consent or acquiescence of a public official or other person acting in an official
capacity.’” Id. (quoting 8 C.F.R. § 1208.18(a)(1), (2)). An applicant for relief “need not
show that the harm she [or he] faces is based on one of the five grounds . . . required
under the INA, but rather must establish a particularized threat of torture.” Almuhtaseb,
453 F.3d at 751 (internal quotation marks omitted and emphasis added).

The IJ’s and BIA’s denial of relief under CAT is supported by substantial
evidence, and the Cruz family’s assertion and evidence that they will “quite likely,”
Appellant Br. at 36, face torture or death upon their return to Guatemala are both too
generalized and too speculative to form the basis of relief. Although the U.S.
Department of State 2006 Country Report stated that “during the year there were
credible reports of torture, abuse, and other mistreatment by PNC members,” Pet. App’x
at 170, and Dr. Vanden speculated that they could be harmed, none of this evidence
compels the conclusion that it is “more likely than not” that Cruz, Abigail, and Delia
themselves would be tortured within the meaning of CAT upon their removal to
Guatemala. The Cruz family’s CAT claims thus fail.

III. CONCLUSION

For the foregoing reasons, we deny the Cruz family’s petitions for review of their
claims for asylum, withholding of removal, and relief under the Convention Against
Torture.