REVISED September 2, 2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 09-60262 September 1, 2010
Lyle W. Cayce
ROSA HERMELINDA CORDON MONTES, Clerk
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A094 952 387
Before JOLLY, DEMOSS and DENNIS, Circuit Judges.
PER CURIAM:*
Rosa Hermelinda Cordon Montes (Montes) seeks review of the dismissal
by the Board of Immigration Appeals (the Board) of her appeal of the order of the
Immigration Judge (the IJ) denying her application for asylum, withholding of
removal, and protection under the Convention Against Torture (CAT). We find
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 09-60262
that the Board’s decision is supported by substantial evidence and that Montes
failed to meet her burden of establishing eligibility for the requested relief.
BACKGROUND AND FACTS
Montes is a native and citizen of Guatemala. When she was apprehended
by border patrol officers on November 22, 2006, near El Paso, Texas, she did not
possess or present a valid entry document and she had not been admitted or
paroled after inspection by an immigration officer. She told the officers she was
headed to Santa Fe, New Mexico, because she wanted to join her husband who
had entered the United States illegally in June 2006 and she wanted to work for
several years. When questioned by the border patrol officers, she told them she
had no fear of torture, harm, or persecution if she returned to Guatemala.
During a credible-fear interview, she later told an asylum officer that she was
fleeing a criminal family that had killed her brother-in-law and threatened her
husband over a business dispute and that, although she had not personally been
threatened, she was afraid to return to Guatemala. The asylum officer found
that Montes had established a credible fear of persecution based on membership
in a particular social group—her family.
Montes was served with a Notice to Appear, charging that she was subject
to removal pursuant to 8 U.S.C. § 1182(a)(7)(A)(i)(I). Appearing before the IJ,
she conceded that she was removable but asserted she was eligible for asylum,
withholding of removal, and protection under CAT. She testified that she came
to the United States because Guatemalan criminal Mario Ponce and his
“pistoleros” had tortured and killed her brother-in-law in a cattle ownership
dispute and had threatened both her and her husband. She said they frequently
made phone calls to her husband and drove their trucks past her house in order
to threaten them. She said she did not contact the Guatemalan police because
she believed they were “involved too” and would not protect her. A newspaper
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report and several affidavits from family members corroborated her testimony
regarding the killing of her brother-in-law and subsequent threats. An expert
also testified that powerful Guatemalan landowners could act with impunity and
sometimes killed people, that the Guatemalan government is corrupt, and that
Montes’s story was consistent with practices in Guatemala. On cross
examination, Montes admitted that she had not told the border patrol officers
her true reason for coming to the United States. She explained that she had
been trying to protect her husband and was afraid because the United States
was deporting people at that time. She also admitted that she left her three
children and her sister-in-law in the same town in Guatemala and that they had
not been harmed.
Although the IJ found that her testimony was not “incredible,” the IJ
expressed “concern” that Montes had not been forthright when first apprehended
by the border patrol officers. The IJ denied her requests for relief and ordered
her removed to Guatemala. Montes timely appealed and the Board issued a
decision dismissing her appeal on March 16, 2009. This Petition followed.1
STANDARD OF REVIEW
Whether Montes was eligible for asylum, withholding of removal or
protection under CAT are factual determinations which we review for
substantial evidence. See Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006);
see also INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). We review the Board’s
decision and consider the IJ’s underlying order only to the extent it had “some
impact” upon the Board’s decision. Ontunez-Tursios v. Ashcroft, 303 F.3d 341,
1
Montes was removed from the United States to Guatemala on August 26, 2009, after
her request for stay of removal was denied. She is inadmissible into the United States for ten
years from the date of her removal. 8 U.S.C. §§ 1182(a)(9)(A)(ii), 1229a. Because we have held
that ten-year bars on readmission constitute concrete collateral consequences that satisfy the
case or controversy requirement, this suit is not moot and we have jurisdiction to consider this
Petition. Max-George v. Reno, 205 F.3d 194, 196 (5th Cir. 2000), vacated on other grounds,
Max-George v. Ashcroft, 533 U.S. 945 (2001).
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348 (5th Cir. 2002); Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997). “Under
the substantial evidence standard, reversal is improper unless we decide not
only that the evidence supports a contrary conclusion, but also that the evidence
compels it.” Chen, 470 F.3d at 1134 (emphasis in original and internal marks
and citation omitted). The possibility of drawing inconsistent conclusions from
the evidence in the record “does not prevent an administrative agency’s finding
from being supported by substantial evidence.” Arif v. Mukasey, 509 F.3d 677,
679 (5th Cir. 2007) (quoting Consolo v. Fed. Maritime Comm’n, 383 U.S. 607, 620
(1966)). Montes “has the burden of showing that the evidence [in support of her
claims] is so compelling that no reasonable factfinder could reach a contrary
conclusion.” Chen, 470 F.3d at 1134; see 8 U.S.C. § 1252(b)(4)(B).
DISCUSSION
The Board did not adopt the IJ’s order in full so we review the Board’s
decision directly and only consider the IJ’s order when it had “some impact” on
the Board. In its decision, the Board referred to “the Immigration Judge’s
adverse credibility finding” regarding Montes’s testimony but the IJ made no
such finding. The IJ expressed “concern” over inconsistencies in Montes’s
explanation of her reasons for coming to the United States but specifically stated
that her testimony was not “incredible.” Montes claims that this incorrect
interpretation by the Board of the IJ’s credibility finding is itself grounds for
granting the Petition and remanding for reconsideration of Montes’s eligibility
for relief. We disagree. Even though it misread the IJ’s credibility finding, the
Board expressly “decline[d] to address” such finding and assumed Montes “was
credible” when it determined that she “failed to meet her burden of establishing
that she will be persecuted or tortured if returned to Guatemala.” Because the
Board assumed Montes was credible, its mistaken interpretation of the IJ’s order
was immaterial to its decision and therefore does not effect our review for
substantial evidence.
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I. Asylum and Withholding of Removal
The Attorney General may grant asylum to aliens who qualify as refugees.
See 8 U.S.C. § 1158(a), (b). To qualify as a refugee, Montes must show that she
is unable or unwilling to return to Guatemala “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.” Jukic v. INS, 40 F.3d 747, 749
(5th Cir. 1994) (quoting 8 U.S.C. § 1101(a)(42)(A)). She must show she “has
suffered past persecution or . . . has a well-founded fear of future persecution.”
8 C.F.R. § 208.13(b). Persecution is the “infliction of suffering or harm, under
government sanction, upon persons who differ in a way regarded as offensive
(e.g., race, religion, political opinion, etc.), in a manner condemned by civilized
governments.” Abdel-Masieh v. INS, 73 F.3d 579, 583 (5th Cir. 1996) (internal
quotation marks and citation omitted). “The harm or suffering need not be
physical, but may take other forms, such as the deliberate imposition of severe
economic disadvantage or the deprivation of liberty, food, housing, employment
or other essentials of life.” Id. (internal quotation marks and citation omitted).
In order to find that the Board did not have substantial evidence in the
record on which to base its decision denying Montes’s asylum request, we must
find that the evidence “compels” a different conclusion. See Chen, 470 F.3d at
1134. The Board found that she “has not been persecuted in the past nor has she
been specifically threatened, alleging only that her husband has been threatened
by members of another family and in particular, a wealthy landowner who
previously accused the respondent’s brother-in-law of stealing cattle.” See
generally Eduard v. Ashcroft, 379 F.3d 182 (5th Cir. 2004). The record shows
that Montes made inconsistent statements regarding her reasons for leaving
Guatemala and whether she had been personally threatened or if only her
husband had been threatened. Montes also admits that she was never
physically harmed, that she left her three children and her sister-in-law in the
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same town in Guatemala, and that she never attempted to contact Guatemalan
law enforcement regarding the threats. Harassment and threats do not
“ordinarily amount[] to persecution under the INA.” Id. at 188; see id. at 187 n.4
(stating that 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” (quoting Mikhailevitch v.
INS, 146 F.3d 384, 390 (6th Cir. 1998))). We find there was substantial evidence
for the Board to determine that Montes had not been persecuted in the past.
To show a well-founded fear of future persecution if returned to
Guatemala, Montes must “have a subjective fear of persecution, and that fear
must be objectively reasonable.” Lopez-Gomez v. Ashcroft, 263 F.3d 442, 445 (5th
Cir. 2001). Montes must show that “a reasonable person in her circumstances
would fear persecution,” Faddoul v. INS, 37 F.3d 185, 188 (5th Cir. 1994), but
such a showing is “negated if [she] can avoid persecution by relocating to another
part of [her] home country.” Eduard, 379 F.3d at 189. The Board stated that
Montes “failed on this record to establish a well founded fear of future
persecution” and that she “has not shown that she cannot relocate within
Guatemala or that the government is unwilling or unable to protect her from the
criminal ‘pistoleros’ with whom some of her family has come into contact.” The
Board decision expresses agreement with the IJ and cites the underlying order
on these determinations, so we also look to the IJ’s reasoning. The IJ found that
Montes’s failure to make any effort to seek help from the Guatemalan
government was unreasonable and that the potential lack of governmental law
enforcement did not clearly demonstrate the Guatemalan government would be
unable or unwilling to protect her. The IJ also noted that she was willing to
leave her three children and her sister-in-law in the same town and she had
never even considered relocating to a different part of Guatemala. The IJ
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rejected the explanation that the Ponce family being well known throughout the
country made living any place in Guatemala unsafe.
We find that there is substantial evidence supporting the IJ’s reasoning
and the Board’s determination that Montes failed to establish past persecution
or a well-founded fear of future persecution if returned to Guatemala, and a
contrary conclusion is not compelled by the record. See Lopez-Gomez, 263 F.3d
at 445; see also Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1064 (9th Cir. 2006);
Setiadi v. Gonzales, 437 F.3d 710, 713–14 (8th Cir. 2006). Because Montes failed
to sustain her burden of proof showing a well-founded fear of persecution caused
or permitted by the Guatemalan government, we need not reach the question of
whether Montes established that her familial relationships were “at least one
central reason for” persecution. Shaikh v. Holder, 588 F.3d 861, 864 (5th Cir.
2009) (emphasis in original); see 8 U.S.C. § 1158(b)(1)(B)(i).
Because Montes failed to meet the burden for establishing eligibility for
asylum, she also failed to satisfy the higher burden for withholding of removal
of showing that it is more likely than not that she will suffer future persecution
if returned to Guatemala. 8 C.F.R. § 208.16(b)(2); Efe v. Ashcroft, 293 F.3d 899,
906 (5th Cir. 2002); see INS v. Stevic, 467 U.S. 407, 413–26 (1984).
II. Protection Under CAT
To be eligible for protection under CAT, Montes has the burden of
demonstrating that it is “more likely than not” that she will be tortured “by or
at the instigation of or with the consent or acquiesce of a public official or other
person acting in an official capacity” if returned to Guatemala. 8 C.F.R. §§
1208.16(c)(2), 1208.18(a)(1); Efe, 293 F.3d at 907. A public official’s acquiescence
“requires that the public official, prior to the activity constituting torture, have
awareness of such activity and thereafter breach his or her legal responsibility
to intervene to prevent such activity.” 8 C.F.R. § 1208.18(a)(7). We consider
evidence of past torture; the ability to relocate within the home country; gross,
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flagrant and mass violations of human rights within the country; and other
relevant information regarding conditions in the country. 8 C.F.R. §
1208.16(c)(3).
Montes claims she will be tortured by “criminal elements” if returned to
Guatemala. However, she admits that she has never been physically harmed by
the Ponce family, she left her three children and her sister-in-law in the same
town in Guatemala and they have not been harmed, she never attempted to
contact any government authority to seek protection, and she never even
considered relocating within Guatemala. Agreeing with the IJ’s reasoning, the
Board found that Montes “has not shown that she cannot relocate within
Guatemala or that the government is unwilling or unable to protect her from the
criminal ‘pistoleros’ with whom some of her family has come into contact.” We
find there is substantial evidence to support the Board’s determination and other
evidence does not compel a contrary conclusion.
CONCLUSION
We find that there is substantial evidence in the record to support the
Board’s decision to deny Montes asylum, withholding of removal, and protection
under CAT. The Petition is DENIED.
8