United States Court of Appeals
For the First Circuit
No. 04-1589
ALEXANDER RODRIGUEZ-RAMIREZ,
Petitioner,
v.
JOHN D. ASHCROFT, ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Torruella and Selya, Circuit Judges.
Robert M. Warren on brief for petitioner.
Peter D. Keisler, Assistant Attorney General, Civil Division,
Terri J. Scadron, Assistant Director, Office of Immigration
Litigation, and Anthony W. Norwood, Senior Litigation Counsel,
Office of Immigration Litigation, on brief for respondent.
February 17, 2005
SELYA, Circuit Judge. The petitioner, Alexander
Rodriguez-Ramirez, seeks judicial review of a final order of the
Board of Immigration Appeals (BIA) denying his application for
asylum and withholding of removal. He asserts that the Immigration
Judge (IJ) ignored the weight of the evidence and, therefore,
incorrectly denied his asylum and withholding of removal claims.
He further asserts that the BIA erred in not reversing the IJ's
rulings. Discerning no error, we deny the petition.
The petitioner, a Guatemalan national, was born in San
Sebastian, Guatemala, during the spring of 1984. When he was
seventeen, he fled to the United States, allegedly because of his
fear of violence in his homeland, and entered illegally. Shortly
after his arrival, the Immigration and Naturalization Service
(INS)1 detained him and initiated removal proceedings.
At a hearing on July 31, 2002, the petitioner conceded
removability and cross-applied for asylum and withholding of
removal. On December 16, 2002, the IJ conducted a hearing on the
merits of the petitioner's application. Testifying at that
hearing, the petitioner described the two incidents upon which he
premised his claims for asylum and withholding of removal. We
paraphrase his description of those incidents.
1
The Homeland Security Act of 2002, Pub. L. 107-296, § 471,
116 Stat. 2135, 2205 (codified as amended at 6 U.S.C. § 291(a)),
abolished the INS and transferred its duties to the Department of
Homeland Security. See Lattab v. Ashcroft, 384 F.3d 8, 13 n.2 (1st
Cir. 2004).
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The first incident occurred on the evening of April 25,
1990 (when the petitioner was six years old). At that time, he
resided with his parents and siblings in San Sebastian. Two masked
guerrillas sought to recruit his father into an insurgent movement
that was attempting to overthrow the Guatemalan government. When
the petitioner's father declined the invitation, the guerrillas
assaulted him in the family's home. The petitioner hid under the
bed as the violence unfolded and heard the guerrillas tell his
father that they would return for him in two days.
As matters turned out, the guerrillas never returned.
For aught that appears in the record, the described incident marked
the first and last time that those particular guerrillas, or any
other political insurgents, ever approached or threatened the
petitioner's father. The petitioner himself was never menaced by
the guerrillas at any time before, during, or after the incident.
The second incident occurred six years later (when the
petitioner was twelve). He testified that, around that time, the
army killed a number of innocent people in the region in which he
lived, suspecting that they were supporting the guerrillas. While
the petitioner did not actually witness any of the killings, he
heard about them from his neighbors.
The petitioner alleged that, as a result of these
incidents, he fears that he will become a target of the guerrillas'
anti-government hostility should he return to his homeland or,
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alternatively, that the government will mistake him for a guerrilla
(or one sympathetic to the guerrillas) and put him in harm's way.
In a bench decision, the IJ deemed the petitioner's
testimony credible but determined that he was not entitled to
asylum, withholding of removal, or the privilege of voluntary
departure. On a first-tier appeal, the BIA summarily affirmed the
IJ's decision. This timely petition for judicial review followed.
We turn directly to the petitioner's claim that the BIA
erred in upholding the denial of his application for asylum. After
all, a claim for withholding of removal places a more stringent
burden of proof on an alien than does a counterpart claim for
asylum. See Makhoul v. Ashcroft, 387 F.3d 75, 82 (1st Cir. 2004);
see also Da Silva v. Ashcroft, 394 F.3d 1, 4 n.5 (1st Cir. 2004)
("The threshold of eligibility for withholding of removal is higher
than the threshold of eligibility for asylum.") (citing cases).
Because of that disparity, the BIA's rejection of the petitioner's
asylum claim, if sustainable, sounds the death knell for his
counterpart claim for withholding of removal. Hence, we begin —
and end — with the asylum claim.2
In immigration cases, a highly deferential standard of
review obtains with respect to fact-driven issues. Putting aside
2
Before us, the petitioner contests the adverse rulings on
asylum and withholding of removal, but not the adverse ruling on
voluntary departure. Consequently, the voluntary departure issue
is waived. See Makhoul, 387 F.3d at 80.
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errors of law — and none appears here — an inquiring court must
uphold the BIA's resolution of such issues so long as its decision
is supported by substantial evidence in the record. INS v. Elias-
Zacarias, 502 U.S. 478, 481 (1992); Da Silva, 394 F.3d at 4-5.
This means that the BIA's determination must stand unless "any
reasonable adjudicator would be compelled to conclude to the
contrary." 8 U.S.C. § 1252(b)(4)(B); accord Laurent v. Ashcroft,
359 F.3d 59, 64 (1st Cir. 2004) (explaining that reversal requires
that the evidence of record "point[] unerringly in the opposite
direction").
In order to establish an entitlement to asylum, the
petitioner must show that he is a refugee within the meaning of the
immigration laws. See 8 U.S.C. § 1158(b)(1); 8 C.F.R. § 208.13(a).
A refugee is a person who cannot or will not 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). To be cognizable, persecution — whether past
persecution (which creates a presumption of a well-founded fear of
future persecution) or feared future persecution — must be on
account of one of the five statutory grounds. Mukamusoni v.
Ashcroft, 390 F.3d 110, 119 (1st Cir. 2004); Makhoul, 387 F.3d at
79.
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Here, the IJ (and, by extension, the BIA) found that the
petitioner had failed to make out a meritorious case under either
doctrinal strand. We concur in that assessment.
The argument on past persecution need not detain us. The
petitioner contends that he suffered past persecution when, as a
young boy, he witnessed guerrillas assaulting his father, and
again, six years later, when the army began killing people
suspected of insurgency. Both halves of this bifurcated contention
lack force.
Although the boundaries of past persecution are somewhat
flexible, they must encompass more than threats to life and freedom
but less than mere harassment or annoyance. Aguilar-Solis v. INS,
168 F.3d 565, 569-70 (1st Cir. 1999) (collecting cases). In this
instance, neither of the two incidents described by the petitioner
passes through the appropriate legal screen. We take each incident
in turn.
As to the first incident, we acknowledge that watching
one's father beaten may be a horrific experience for a young child
— but not all horrific experiences translate into persecution. The
assault was a single incident, remote in time. It was neither
directed at the petitioner — he himself was never attacked (or even
threatened, for that matter) — nor based on some characteristic
that he and his father shared. Despite their braggadocio, the
guerrillas never returned. And, finally, there were no discernible
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sequelae. Viewed against this backdrop, the IJ's (and the BIA's)
determination that this isolated violence against a family member
was insufficient to establish past persecution must stand. See
Quevedo v. Ashcroft, 336 F.3d 39, 45 (1st Cir. 2003) (stating that
"a single incident of persecution, of a short duration . . . not
followed by acts of recrimination" was insufficient to establish
past persecution).
The second incident is no more compelling. Although the
army apparently undertook a spate of violent activities in the
region in which the petitioner lived, that violence was confined to
a particular temporal period (long since past). There is
absolutely no proof that the petitioner or his family had done
anything to earn the army's enmity, that they were perceived in
that light, or that they were targets of this episodic violence
(let alone victims of it). The fact that the family lived in an
area that was, for a time, wracked by internecine warfare is not
equivalent to undergoing persecution. See, e.g., Ravindran v. INS,
976 F.2d 754, 759 (1st Cir. 1992) (noting that, in general,
"evidence of widespread violence and human rights violations
affecting all citizens is insufficient to establish persecution");
accord Debab v. INS, 163 F.3d 21, 27 (1st Cir. 1998).
Of course, an alien who is unable to show past
persecution may nonetheless establish eligibility for asylum if he
can demonstrate a well-founded fear of future persecution.
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Aguilar-Solis, 168 F.3d at 572. To this end, the alien must "not
only harbor a genuine fear of future persecution, but also must
establish an objectively reasonable basis for that fear." Laurent,
359 F.3d at 65. Here, the objective component is lacking.
The petitioner insists that he has a well-founded fear of
future persecution because his father's political views will be
imputed to him. The evidence, however, does not show an
objectively reasonable basis for this fear. See, e.g., Ravindran,
976 F.2d at 759 (concluding that fear of persecution based on a
relative's political activities was not reasonable where there was
no evidence establishing that the petitioner was ever persecuted as
a result of those activities or that "the government has a general
practice of persecuting extended family members"). The record is
opaque as to the actual views held by the petitioner's father, and
in all events, the petitioner's father has been living peacefully
in San Sebastian during the entire time that the petitioner has
been in the United States. If the holder of a political opinion is
not a target of ongoing persecution, it strains credulity that one
to whom that opinion might be imputed should be regarded as
objectively at risk.
If more were needed — and we doubt that it is — the
political situation in Guatemala has changed dramatically since the
petitioner's childhood. Peace accords were signed in 1996 between
the Guatemalan government and the insurgent forces, who had rallied
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collectively under the banner of the Guatemalan National
Revolutionary Unity (GNRU). These accords put an end to the
country's civil war. The petitioner testified that since the
signing of the peace accords neither he nor any of his relatives
has been approached in a bellicose manner or threatened in any way.
That is particularly significant because the petitioner's parents
and six siblings still reside in Guatemala (most of them in San
Sebastian). Collectively, these facts undermine the objective
reasonableness of any fear of future persecution should the
petitioner return to Guatemala. See Aguilar-Solis, 168 F.3d at
573.
The petitioner has a fallback position. He asserts that
he fears future persecution because he falls into a social group
known to oppose the guerrillas. This assertion is hopeless. For
one thing, there is no probative evidence in the record suggesting
that the guerrillas remain active. According to the State
Department's 2002 Country Report on Human Rights Practices for
Guatemala, the GNRU has become part of the establishment. It is
currently recognized as a bona fide political party and, in the
1999 general elections, won nine seats in the national legislature.
For another thing, there is no evidence that the petitioner is, or
is regarded in Guatemala as, a person who opposes the guerrillas.
Last — but not least — a person who claims a fear of persecution on
account of social group membership must at a bare minimum identify
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with particularity the social group with which he claims to be
associated. See Da Silva, 394 F.3d at 5-6. The petitioner has
failed to meet this benchmark.3
We need go no further. This is a case in which the
petitioner's testimony, taken at face value, does not objectively
support, let alone compel, a conclusion contrary to that reached by
the agency. It follows that substantial evidence underpins the
rejection of the petitioner's claims that he experienced past
persecution and that he harbors a well-founded fear of future
persecution. This finding dooms not only the petitioner's quest
for asylum but also his quest for withholding of removal.
The petition for judicial review is denied.
3
To the extent that the petitioner is suggesting that he
belongs to the social group of young men who oppose the guerrillas,
the record is devoid of any evidence indicating that the petitioner
belonged to or was affiliated with any organized social group. The
record is similarly devoid of any evidence that young men in
general have reason to fear persecution in Guatemala.
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