Quevedo v. Ashcroft

United States Court of Appeals
For the First Circuit

No. 02-2227

JULIO CESAR QUEVEDO; MEGDY PEREZ DE QUEVEDO,

Petitioners,

v.

JOHN ASHCROFT, Attorney General,

Respondent.

ON PETITION FOR REVIEW OF ORDER

OF THE BOARD OF IMMIGRATION APPEALS

Before

Lynch, Lipez and Howard, Circuit Judges.

Harvey Kaplan, Ilana Greenstein, Maureen O'Sullivan, Jeremiah
Friedman, and Kaplan, O'Sullivan & Friedman, LLP, were on brief for
petitioners.

Robert D. McCallum, Jr., Assistant Attorney General, Norah
Ascoli Schwarz, Senior Litigation Counsel, and John C. Cunningham,
Senior Litigation Counsel, Office of Immigration Litigation, were
on brief for respondent.

July 17, 2003
 LYNCH, Circuit Judge. Petitioner Julio Cesar Quevedo

("Quevedo") is a Guatemalan native and citizen who entered the

country in 1991 and who applied for asylum in 1996 based on both

past persecution and a fear of future persecution, arising from his

membership in an agrarian cooperative in Guatemala. His wife,

Megdy Perez de Quevedo, who entered illegally in 1993, also applied

for asylum. It is conceded that her asylum status is dependent on

her husband's. An Immigration Judge found that Quevedo had

suffered past persecution, but denied his asylum application

because of the insignificance of that persecution when viewed in

light of the changed country conditions in Guatemala following the

1996 peace accord. The Board of Immigration Appeals affirmed the

IJ's decision, using the summary affirmance procedure. See 8

C.F.R. § 1003.1(e)(4) (2003) (formerly designated § 3.1(e)(4)).

Quevedo petitions for review of the denial of asylum. We affirm

the denial.

I. Facts

Quevedo entered the United States in California on

August 5, 1991, without undergoing an immigration inspection. At

that time, he was 23 years old. His now-wife Megdy entered at the

same location and in the same manner on or about June 10, 1993.

They were married in Waltham, Massachusetts on April 29, 1996.

Quevedo applied for asylum on May 8, 1996. Quevedo sought asylum

"because of [a] problem with guerrilla warfare in Guatemala" and

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because he was "beaten and abused by these people." If forced to

return to Guatemala, he felt he "would be killed." On September

25, 1996, following an asylum interview, the INS issued an order to

show cause to Quevedo, alleging he was deportable.

Quevedo conceded deportability, but requested asylum and

withholding of deportation. At a hearing before the IJ on April

10, 1998, Quevedo said that in Guatemala he lived in a town called

Las Trochas in the Nueva Concepcion region, along with his

siblings. Las Trochas is a remote mountain town over three hours

away from Guatemala City, the capital, by bus. Quevedo was active

in a rural farmers' cooperative, and one of his brothers worked for

the government.

Quevedo testified that people around him had been

affected by Guatemala's civil war. One of his neighbors and four

friends of his parents disappeared; he thought it was at the hands

of the authorities. One of the members of his cooperative was

killed during an attempted abduction in 1989. His sister-in-law's

husband also disappeared.

One night in 1990, a group of 15 or 20 individuals came

to Quevedo's house at night and demanded to be let in. They

threatened to kill Quevedo if they were not allowed inside.

Quevedo let them in, and they interrogated him about any contacts

he might have with the government. Quevedo said he did not know

anyone in the government, but then the intruders found a photo of

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his brother in a uniform, and started beating Quevedo and his

brothers. Quevedo and his brothers were tied up, and one intruder

threatened to cut Quevedo's throat with a knife. Quevedo was hit

in the stomach and the chest. The intruders demanded arms and told

Quevedo and his family that they should collaborate with the anti-

government struggle. Megdy, who was pregnant at the time, was

pushed to the floor when she insisted on remaining with him.

Quevedo said the intruders identified themselves both as members of

the army and of FAR, one of the guerrilla groups active in

Guatemala. After about 15 minutes the group left. Quevedo later

discovered that they had visited other houses in his neighborhood

that night. No one from Quevedo's family went to a hospital

afterwards, nor did they report the incident to the police.

Quevedo left Guatemala the year after the incident; he

said he left as soon as he had enough money to go. He joined an

older brother -- the brother who had worked for the Guatemalan

government -- in Waltham.1 Quevedo's wife remained in Guatemala

with her parents because she was pregnant at the time; she came to

1
His brother is covered by the so-called "ABC settlement"
program which provides for an amnesty for Salvadorans and
Guatemalans present in the United States as of September 19, 1990
and October 1, 1990 respectively. The ABC settlement arose out of
a class action suit filed on behalf of Salvadoran and Guatemalan
nationals. Am. Baptist Churches v. Thornburgh, 760 F. Supp. 796
(N.D. Cal. 1991); see Bureau of Citizenship and Immigration
Services, The American Baptist Churches v. Thornburgh (ABC)
Settlement Agreement, at: http://www.bcis.gov/graphics/
services/residency/abc.htm. Because of the date of Quevedo's
arrival, he is not eligible for the ABC program.

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the United States to join him two years later. Quevedo's two

younger children (both U.S. citizens) live with him in

Massachusetts, his two older children live with his mother-in-law

in Guatemala. Quevedo's mother and his three sisters also live in

Guatemala. He testified that his sisters and mother moved away

from Las Trochas, some to a communal farm about two hours away in

another region and some about one-half hour away in the same

region. None of them has suffered any persecution since Quevedo

left. Quevedo's wife also testified that her family had had no

problems in Guatemala.

Quevedo was asked about the peace treaty between the

government and the rebels in 1996. He responded by saying that he

did not believe in the peace "[b]ecause with a paper and a pencil

there is never going to be peace in one country, because there was

always violence and now more." Quevedo also said that he knew from

the news that "there w[ere] 10 killings every day [in Guatemala]

and armed robberies and kidnappings."

The government introduced country condition reports

describing then-recent conditions in Guatemala. According to a

1997 State Department report on Guatemala, the 36 year-old civil

war in Guatemala had been brought to an end in December 1996 by a

peace accord between the government and the guerrillas.

Demobilization of the guerrillas was completed by May, the size of

the government's military was reduced, legal reforms were enacted

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to protect human rights, and a United Nations monitoring group was

sent to Guatemala to verify compliance with the accord. While some

instances of abuses by government personnel and extrajudicial

killings continued to be reported, and while difficulty was

encountered in resolving instances of pre-accord persecution, there

was "significant improvement in the overall human rights

situation." Only one incident of disappearance at the hands of

non-governmental forces was linked to politics.

The government also introduced a 1996 State Department

profile on Guatemala which noted that the group mentioned by

Quevedo, FAR, was part of the umbrella guerrilla group that signed

the peace accords. The earlier profile also concluded that the

conflict was localized and individuals fleeing guerrilla or

governmental harassment are "generally . . . able to find peaceful

residence elsewhere in the country, although internal relocation

may be more difficult for Indians."

The IJ issued a ruling on April 10, 1998. She found that

Quevedo had established past persecution on account of his

membership in a particular social group. The IJ noted the

information provided by the government regarding conditions in

Guatemala since the 1996 peace accord, and the fact that Quevedo's

relatives in Guatemala had been able either to relocate or to

continue living in the same region without being harmed. She also

commented that it did not appear that anyone in his family had been

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targeted for reprisals because of a refusal to support the

guerrillas. She concluded that despite the history of persecution

of agrarian reform movements in Guatemala,

[I]t does not appear to this Court that there is any
evidence that the respondent would become a victim of
such violence if he were to return at this time under
current conditions. Given that the one inciden[t] of
persecution that he endured in the past appears to have
been of a short duration, did not lead to any other acts
of recrimination and did not in fact cause him to depart
his country for at least a year and a half after the
incident occurred, I find insufficient evidence to
warrant a finding of either well-founded fear of
persecution in light of changed conditions or that the
past persecution was so extreme as to warrant a grant,
notwithstanding the changed conditions.

The IJ denied asylum and withholding of deportation, but granted

voluntary departure within 120 days, in consideration of the length

of time the Quevedos had resided in the United States and their

children's status as U.S. citizens.

Quevedo and his wife timely appealed the IJ's ruling to

the BIA. They did not submit any additional evidence, apart from

a reference to a Boston Globe article regarding the murder of

Bishop Conedera in April 1998, which was thought to be an act of

revenge for the Bishop's partisanship during the civil war. No

more recent country reports were submitted. On September 13, 2002,

the BIA affirmed without opinion the result of the IJ's decision,

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and granted voluntary departure within 30 days. Quevedo now

petitions for review of this decision.2

II. Analysis

The BIA's determination must be upheld if it is

"supported by reasonable, substantial, and probative evidence on

the record considered as a whole." INS v. Elias-Zacarias, 502 U.S.

478, 481 (1992) (internal quotation omitted). A court may reverse

"only if the evidence presented by [petitioner] was such that a

reasonable factfinder would have to conclude that the requisite

fear of persecution existed." Id.; accord El Moraghy v. Ashcroft,

331 F.3d 185, 202 (1st Cir. 2003). Merely identifying "alternative

findings that could be supported by substantial evidence" is not

sufficient to supplant the agency's findings. Arkansas v.

Oklahoma, 503 U.S. 91, 113 (1992). When the BIA summarily affirms

the IJ's opinion, as here, the court reviews the decision of the

IJ. Herbert v. Ashcroft, 325 F.3d 68, 71 (1st Cir. 2003);

Albathani v. INS, 318 F.3d 365, 373 (1st Cir. 2003).

The petitioner bears the burden of establishing

eligibility for asylum by proving that he qualifies as a refugee.

8 U.S.C. § 1158(b)(1) (2002); 8 C.F.R. § 208.13(a). A petitioner

2
The Attorney General has been substituted for the
Immigration and Naturalization Service as respondent. See Fesseha
v. Ashcroft, No. 02-2047, 2003 WL 21374082 at *3 n.5 (1st Cir. June
16, 2003); 8 U.S.C. § 1252(b)(3)(A) (2000).

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 can do so by two routes: "(1) by demonstrating past persecution,

thus creating a presumption of a well-founded fear of persecution;

or (2) by demonstrating a well-founded fear of persecution."

Yatskin v. INS, 255 F.3d 5, 9 (1st Cir. 2001) (citing 8 C.F.R. §

208.13(b)). A finding of past persecution requires that an

applicant demonstrate that he has suffered persecution on one of

the five enumerated grounds: race, religion, nationality,

membership in a particular social group, or political opinion. 8

C.F.R. § 208.13(b)(1). To establish a well-founded fear of future

persecution, applicants can either offer specific proof, or they

can claim the benefit of a regulatory presumption based on proof of

past persecution. Guzman v. INS, 327 F.3d 11, 15 (1st Cir. 2003)

(citing 8 C.F.R. § 208.13(b)(1)); Velasquez v. Ashcroft, 316 F.3d

31, 35 (1st Cir. 2002) (same).

Once an applicant "has been found to have established

such past persecution," he or she "shall also be presumed to have

a well-founded fear of persecution on the basis of the original

claim." El Moraghy, 331 F.3d at 203 (citing 8 C.F.R. §

208.13(b)(1)); Fergiste v. INS, 138 F.3d 14, 18 (1st Cir. 1998).

That presumption can be rebutted by an IJ's finding by a

preponderance of the evidence either (1) that "[t]here has been a

fundamental change in circumstances such that the applicant no

longer has a well-founded fear of persecution in the applicant's

country of nationality," or (2) that "[t]he applicant could avoid

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future persecution by relocating to another part of the applicant's

country, . . . and under all the circumstances it would be

reasonable to expect the applicant to do so." 8 C.F.R. §

208.13(b)(1)(i)(A)-(B).

Evidence from the government about changed country

conditions does not automatically rebut the presumption. Such

evidence is often general in nature and may not be an adequate

response to an applicant's showing of specific personal danger.

Gailius v. INS, 147 F.3d 34, 36 (1st Cir. 1998). "[C]hanges in

country conditions must be shown to have negated the particular

applicant's well-founded fear of persecution." Fergiste, 138 F.3d

at 19. Here, the IJ's opinion engaged in the required

individualized analysis: the IJ looked to the treatment of members

of Quevedo's family who have remained in Guatemala, as well as to

the severity and duration of the persecution suffered by Quevedo.

We add that Quevedo's persecution by the guerrillas was also shared

by his neighbors; he was not singled out.

Petitioner argues that information contained in the State

Department report submitted by the government does not support the

IJ's finding, but rather is evidence of continuing persecution.

The 1997 report supports a finding of changed country conditions,

however. The Supreme Court evaluated the 1997 State Department

report in INS v. Ventura, 123 S. Ct. 353 (2002) (per curiam). The

Court rejected the Ninth Circuit's interpretation that the report

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compels a finding of insufficiently changed circumstances; instead,

the Court pointed out that "[t]he bulk of the report makes clear

that considerable change has occurred," even though some parts

could be read to the contrary. Id. at 356. Furthermore, the Court

noted, the report also makes clear that only high-level leaders

would be vulnerable to political harassment, and even they could

escape such persecution by relocating within Guatemala. Id. The

report is not required to be read in petitioner's favor. This

Circuit has rejected the contention that pervasive non-political

criminality in Guatemala constitutes a basis for asylum. Oliva-

Muralles v. Ashcroft, 328 F.3d 25, 27 (1st Cir. 2003).

The IJ reasonably found that the agency met its burden

to rebut the presumption of fear of persecution through changed

country conditions. Petitioner was also entitled to respond to the

IJ's finding of changed country conditions. See Gailius, 147 F.3d

at 45; 3 C. Gordon, S. Mailman & S. Yale-Loehr, Immigration Law and

Procedure § 33.04[3][f], at 33-52.21 to 33-52.23 (2003). Quevedo

has signally failed to do so. He did not submit more recent

country condition reports, nor did he solicit testimony from

experts, nor did he present evidence that similarly situated

individuals continued to face persecution. Instead, his appeal to

the BIA contained only a reference to the assassination of Bishop

Conedera. While the Bishop's death supports the claim that

conditions in Guatemala are not completely settled, it does little

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to confirm petitioner's argument that apolitical members of

agrarian cooperatives face continued dangers. Indeed, on the

contrary, it tends to confirm the State Department's conclusion

that only those in leadership positions are likely to be targets of

persecution.

Petitioner argues that the finding of past persecution

alone is enough to warrant asylum even with changed country

conditions. Under certain limited circumstances this can be true.

"[A]n applicant may be afforded asylum even where the evidence

establishes such a change in conditions that he or she may be found

to no longer have a well-founded fear of persecution. Compelling

reasons arising out of the severity of the past persecution

suffered may be found . . . ." In re H-, 21 I. & N. Dec. 337, 346-

47 (BIA 1996) (citations omitted); see also 8 C.F.R. §

208.13(b)(1)(iii)(A). However, Quevedo's experience in Guatemala,

while undoubtedly terrifying, does not rise to the level of

severity necessary for a court of appeals to set aside the agency's

conclusion. As the IJ noted in her analysis, it was only a single

incident of persecution, of a short duration, and was not followed

by acts of recrimination.

Agency regulations also provide for discretionary grants

of asylum where an applicant has been found to have suffered

persecution but country conditions have subsequently changed when

"[t]he applicant has established that there is a reasonable

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possibility that he or she may suffer other serious harm upon

removal to that country." 8 C.F.R. § 208.13(b)(1)(iii)(B).

Bearing in mind the Supreme Court's discussion that a "reasonable

possibility" of future harm could be met by as little as a one in

ten chance, INS v. Cardoza-Fonseca, 480 U.S. 421, 440 (1987), we

find that the IJ's decision was supported by substantial evidence.

The record does not support even a "reasonable possibility" of

future persecution. Quevedo also argues that the IJ erred in not

separately considering the issue of well-founded fear of future

persecution (independent of past persecution) and in applying the

wrong legal standards. Neither contention has merit. We affirm

the denial of asylum.

Quevedo's withholding of deportation claim necessarily

fails. Withholding is only mandatory when an alien presents

"evidence establishing that it is more likely than not that the

alien would be subject to persecution on one of the specified

grounds." INS v. Stevic, 467 U.S. 407, 429-30 (1984). As the

withholding of deportation standard is more difficult to meet than

the asylum standard, "a petitioner unable to satisfy the asylum

standard fails, a fortiori, to satisfy the former." Fesseha v.

Ashcroft, No. 02-2047, 2003 WL 21374082, at *4 n.6 (1st Cir. June

16, 2003) (citation omitted).

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 III.

The decision of the BIA is affirmed. The BIA's grant of

voluntary departure within 30 days is reinstated. See Yatskin, 255

F.3d at 11.

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