Ruiz v. Mukasey

United States Court of Appeals
For the First Circuit

No. 07-1783

CLAUDIA CECILIA RESTREPO RUIZ ET AL.,

Petitioners,

v.

MICHAEL B. MUKASEY, ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD

OF IMMIGRATION APPEALS

Before

Lipez, Circuit Judge,
Selya, Senior Circuit Judge,
and Stahl, Senior Circuit Judge.

Daniel F. Cashman, Cashman & Lovely, P.C., and Susanna L.
Shafer on brief for petitioners.
Jeffrey S. Bucholtz, Acting Assistant Attorney General, Civil
Division, Terri J. Scadron, Assistant Director, Office of
Immigration Litigation, and Wendy Benner-León, Trial Attorney,
Office of Immigration Litigation, on brief for respondent.

May 21, 2008
 SELYA, Senior Circuit Judge. The lead petitioner,

Claudia Cecilia Restrepo Ruiz, is a Colombian national.1 She seeks

review of a final order of the Board of Immigration Appeals (BIA)

rejecting her request for asylum. She argues that the BIA erred in

its determination that she failed to establish either past

persecution or an objectively reasonable fear of future persecution

on account of a statutorily protected ground. Concluding, as we

do, that the BIA's decision is supported by substantial evidence in

the record, we deny the petition.

I. BACKGROUND

The petitioner entered the United States with her three

children on November 22, 2001. That entry reunited her with her

husband, Jorge Iván Marín Grisales (Marín), who had entered the

United States two years earlier and had overstayed the term

authorized by his nonimmigrant visa.

On May 20, 2002 — one day prior to the expiration of her

authorized stay — the petitioner filed an omnibus application for

asylum, withholding of removal, and relief under the United Nations

Convention Against Torture (CAT). After a preliminary

investigation, the authorities commenced removal proceedings under

8 U.S.C. § 1227(a)(1)(B).

1
The lead petitioner's husband and their three children are
also listed in the petition. Because their claims are wholly
derivative, we treat the case as if the lead petitioner was the
lone petitioner.

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 On June 2, 2003, the petitioner appeared with counsel

before an immigration judge (IJ). She conceded removability but

pressed forward with her omnibus application. Over the course of

a two-day hearing, the petitioner, her husband, and one child

testified about what they characterize as "harassment, threats, and

mistreatment" at the hands of the Revolutionary Armed Forces of

Colombia (FARC). Because the IJ deemed this testimony credible, we

rehearse the facts as limned therein.

In 1985, when the petitioner was approximately sixteen

years of age, armed FARC guerillas visited her father's farm,

demanded financial support for their operations, and tried to

recruit her family to their cause. Notwithstanding the FARC's

reputation for hard-core violence (such as assassinations,

kidnapings, and forced recruitments), the petitioner's father

refused these demands. The guerillas burned down the family farm

at a substantially later date (some six months after the family had

decided to abandon it). The petitioner viewed this as an act of

retaliation.

Several years thereafter, the petitioner joined

Colombia's Conservative Party. As a party member, she occasionally

participated in a "community civic group" that helped organize

political gatherings and recruit new adherents. Her main

activities, however, involved teaching people how to sew.

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 In 1994, the petitioner found herself transporting

political propaganda for the party. Guerillas stopped the car in

which she was riding. They torched the vehicle, destroying the

pamphlets, and warned her that her life would be at risk if she did

not desist from partisan political activities. The petitioner took

these imprecations to heart and refrained from further political

involvement.

Marín (the petitioner's husband) had a separate series of

encounters with the FARC. The most notable of those occurred on

June 12, 1999. As he, his brother, and one of his sons were

driving home, a group of guerillas who had kidnaped a young woman

stopped their vehicle. The kidnapers' car was mired in a ditch, so

they demanded a ride from Marín at gunpoint.

Marín complied, but he became convinced that the

kidnapers knew his identity. His fears were heightened when a

guerrilla said that he "knew him" from town. Before departing, the

guerillas recorded his license plate number and warned him that he

and his family would be in jeopardy if he told the authorities

about what had transpired.

Marín also testified that he feared persecution by the

FARC on account of his prior service in the Colombian army. He

failed, however, to offer any evidence that the trepidation was

justified; he retired from the army in 1980, and could not link the

occurrence of any untoward event to his past military service.

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 On June 29, 1999, Marín obtained a visa to visit the

United States and began scaling back his business in preparation

for his departure. He characterized his decision to leave Colombia

as a response to the hijacking incident. Around this same time,

the family started to receive telephone calls demanding money.

Notwithstanding the hijacking, the threatening calls, and his

possession of a visa, Marín remained in Colombia. It was not until

November 20, 1999, after receiving a note from the FARC demanding

that he meet with the guerillas and pay a bribe relating to his

business, that Marín emigrated to the United States, leaving his

wife and children behind.

The petitioner testified that her own (subsequent)

decision to flee was precipitated by the abduction of her brother-

in-law (Marín's brother) during the following year. Drawing upon

a newspaper article that she proffered to corroborate her version

of that event, she reported that the victim was kidnaped, along

with several other persons, by FARC guerillas who were targeting a

wealthy landowner.

At the conclusion of all the evidence, the IJ denied the

petitioner's claim for asylum.2 He concluded that (i) the past

2
The IJ also denied the petitioner's claims for withholding of
removal and CAT relief. Because the petition for judicial review
focuses single-mindedly on asylum, we make no further mention of
the other two claims. See Rotinsulu v. Mukasey, 515 F.3d 68, 71
(1st Cir. 2008) (explaining that issues not briefed in the court of
appeals are deemed abandoned).

-5-
events recounted by the witnesses failed to rise to the level of

persecution, (ii) there was no plausible basis for an objectively

reasonable fear of future persecution, and (iii) the petitioner had

failed to demonstrate that the mistreatment of which she complained

(whether past or anticipated) was causally connected to a

statutorily protected ground. The BIA affirmed the IJ's ukase.

This timely petition for judicial review followed.

II. DISCUSSION

Before us, the petitioner presses only her asylum claim.

See supra note 2. Our review is focused on the BIA's decision.

See Orelien v. Gonzales, 467 F.3d 67, 70 (1st Cir. 2006). If,

however, the IJ's findings are incorporated into the BIA's

decision, we also examine those findings. Thus, where "the BIA

conducts a de novo review of the record, independently validates

the sufficiency of the evidence, and adopts the IJ's findings and

conclusions, the IJ's findings become the BIA's." Laurent v.

Ashcroft, 359 F.3d 59, 64 n.3 (1st Cir. 2004). This is such an

instance.

With respect to past persecution, the petitioner asserts

that the BIA relied too heavily upon the absence of physical harm

and neglected to give weight to the historical pattern of

mistreatment suffered by the petitioner and her family. In

addition, she asserts that the BIA erred in its assessment of her

fear of future persecution because it focused exclusively on her

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political affiliation and discounted her membership in a particular

social group (namely, an anti-FARC family).

Our odyssey begins with a précis of the standard of

review. Absent an error of law, we must uphold the BIA's denial of

an asylum petition as long as that denial is supported by

substantial evidence in the record as a whole. See Bocova v.

Gonzales, 412 F.3d 257, 262 (1st Cir. 2005). That standard

requires us to defer to the BIA's findings of fact "unless any

reasonable adjudicator would be compelled to conclude to the

contrary." 8 U.S.C. § 1252(b)(4)(B). This is not a petitioner-

friendly standard of review; a reversal is appropriate only when

the record evidence "points unerringly" to a conclusion different

from that reached by the BIA. Laurent, 359 F.3d at 64.

Although we afford de novo review to the BIA's legal

determinations, its construction of the Immigration and Nationality

Act (INA) and the regulations thereunder is entitled to a degree of

deference. See Da Silva v. Ashcroft, 394 F.3d 1, 5 (1st Cir.

2005); see also Chevron U.S.A., Inc. v. Nat'l Res. Def. Council,

Inc., 467 U.S. 837, 842-43 (1984).

With this prelude, we turn to the petitioner's

assignments of error. In order to qualify for asylum, an alien

must demonstrate that she is a "refugee" within the meaning of the

INA. See 8 U.S.C. § 1158(b)(1); 8 C.F.R. § 208.13(a); see also

Makhoul v. Ashcroft, 387 F.3d 75, 79 (1st Cir. 2004). To carry

-7-
this burden, the alien must prove that she is unable or unwilling

to repatriate "because 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); see Orelien, 467

F.3d at 70.

An alien may make the requisite showing through one of

two avenues. The first requires her to demonstrate past

persecution on account of one of the five statutorily protected

grounds, thereby triggering a rebuttable presumption of future

persecution. Makhoul, 387 F.3d at 79. Once that presumption

emerges, the burden shifts to the government to prove that she can

return safely to her homeland. See Orelien, 467 F.3d at 71; see

also 8 C.F.R. § 208.13(b)(1)(i)(A)-(B) (setting forth what the

government must then prove).

The second avenue requires an independent showing,

unaided by any presumption, of a well-founded fear of future

persecution based on a statutorily protected ground. Makhoul, 387

F.3d at 79. That showing has both a subjective and an objective

component; that is, the professed fear must be not only genuine but

also objectively reasonable. Orelien, 467 F.3d at 71. That

objective component must be "nestled on a plausible factual

predicate." Id. This necessitates a showing that "a reasonable

person in the asylum applicant's circumstances would fear

persecution on account of a statutorily protected ground."

-8-
Aguilar-Solís v. INS, 168 F.3d 565, 572 (1st Cir. 1999). No matter

which avenue an alien chooses to traverse, she also must

demonstrate a causal connection: that the persecution, whether past

or feared, was or is "on account of" one of the five statutorily

protected grounds. 8 U.S.C. § 1101(a)(42)(A).

In this venue, the petitioner emphasizes the putative

connection between the alleged persecution and her membership in a

particular social group. The key integer in the "social group"

equation is "whether the claimed persecution is aimed at an

individual because of his or her affiliation with a group of

persons, all of whom share a common, immutable characteristic." Da

Silva, 394 F.3d at 5. So viewed, membership in such a group must

stem from an innate characteristic or a shared experience. Ang v.

Gonzales, 430 F.3d 50, 55 (1st Cir. 2005). In either event, the

common link must be one that people "either cannot change, or

should not be required to change because it is fundamental to their

individual identities or consciences." Da Silva, 394 F.3d at 5

(citation and internal quotation marks omitted).

Against this backdrop, we consider whether the BIA erred

when it ruled that the petitioner had not carried the devoir of

persuasion on the issue of past persecution. On this point, the

petitioner's challenge has two foci. First, she contends that the

BIA overemphasized the absence of physical harm. Second, she

contends that the BIA neglected to look closely enough at her

-9-
family's collective history of claimed persecution. We address

these contentions separately.

The INA provides no specific definition of the term

"persecution." In light of this lacuna, we have concluded that

what constitutes persecution is a question best answered on a case-

by-case basis. See, e.g., Orelien, 467 F.3d at 71. Due to the

"nearly infinite diversity of factual circumstances in which asylum

claims arise, it would be difficult to develop meaningful

generalities that could easily be applied to a broad spectrum of

cases." Bocova, 412 F.3d at 263 (citing Aguilar-Solís, 168 F.3d at

569-70).

This does not mean, however, that we are rudderless on a

sea of speculation. To the contrary, the case law reveals

significant channel markers. For example, we repeatedly have held

that an alien's experiences must add up to more than mere

discomfiture, unpleasantness, harassment, or unfair treatment.

See, e.g., Orelien, 467 F.3d at 71; Nikijuluw v. Gonzales, 427 F.3d

115, 120 (1st Cir. 2005); Bocova, 412 F.3d at 263.

Examining the record in this case, we discern substantial

support for the BIA's conclusion that the petitioner failed to

cross that threshold. Here as in other cases, see, e.g., Zheng v.

Gonzales, 416 F.3d 97, 100 (1st Cir. 2005), we find it significant

that neither the petitioner nor her family were ever arrested or

detained for any extended period of time. Here as in other cases,

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see, e.g., López de Hincapie v. Gonzales, 494 F.3d 213, 219 (1st

Cir. 2007), we find it significant that the threats about which the

witnesses testified were not connected with any statutorily

protected ground but, rather, were clearly motivated either by

greed or by a desire to elude the authorities.

The BIA's emphasis on the absence of any physical harm

was entirely appropriate: the fact that nobody in the family was

physically harmed in any of the described encounters constitutes a

pertinent datum that is deserving of weight. See, e.g., Susanato

v. Gonzales, 439 F.3d 57, 60 (1st Cir. 2006). This is, in a sense,

a case of addition by subtraction; the absence of evidence of

physical harm plainly supports the BIA's determination that nothing

tantamount to persecution transpired.

The petitioner's asseveration that the BIA relied too

heavily upon the absence of evidence of physical harm starts from

a correct premise: an applicant for asylum is not obliged to show

the infliction of physical harm in order to carry her burden of

proving past persecution. See, e.g., Un v. Gonzales, 415 F.3d 205,

210 (1st Cir. 2005) (noting that threats alone could be enough to

establish past persecution). But the presence or absence of

physical harm (and, indeed, the degree of harm inflicted) remains

a relevant factor in determining whether mistreatment rises to the

level of persecution. Alibeaj v. Gonzales, 469 F.3d 188, 191-92

(1st Cir. 2006); Orelien, 467 F.3d at 71.

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 In all events, the petitioner's argument ignores the fact

that the IJ's findings, adopted in pertinent part by the BIA, cite

a number of relevant considerations above and beyond the absence of

physical harm. Moreover, the petitioner ignores that the negative

finding as to past persecution was doubly justified because she had

failed to establish that any alleged mistreatment, whether or not

productive of physical harm, was "on account of" a statutorily

protected ground. These oversights are independently sufficient to

doom the petitioner's challenge.

The petitioner's charge that the BIA did not consider her

family's history of persecution is likewise unpersuasive. For one

thing, the record makes manifest that both the IJ and the BIA

canvassed all the evidence and considered the petitioner's

allegations as a whole. For another thing, the petitioner never

succeeded in weaving her family's narrative into anything

resembling a pattern of systematic mistreatment. Nothing in the

record suggests — let alone compels — a conclusion that the

unfortunate experiences undergone by the petitioner and her family

were more than isolated occurrences, unrelated to family

membership.

To be sure, it is possible that the BIA could have teased

out of the evidence something resembling a pattern of persecution.

But that is not enough to profit the petitioner. Given two

plausible but conflicting inferences from a body of evidence, the

-12-
BIA's choice between those inferences is by definition supported by

substantial evidence. See Aguilar-Solís, 168 F.3d at 571 (choosing

among reasonable but competing inferences is the "factfinder's

prerogative").

This leaves the petitioner's plaint that the BIA erred in

failing to find a well-founded fear of future persecution. In

undertaking this foray, the petitioner suggests that the BIA (and

the IJ, for that matter) overlooked that her fears were based not

only on political activism but also on her membership in a targeted

social group (her family). This suggestion is theoretically sound

but factually unsupported.

Kinship can be a sufficiently permanent and distinct

characteristic to serve as the linchpin for a protected social

group within the purview of the asylum laws. See Gebremichael v.

INS, 10 F.3d 28, 36 (1st Cir. 1993). Withal, to ground a viable

asylum claim, that family membership must be at the root of the

persecution, so that family membership itself brings about the

persecutorial conduct. Id. at 35.

In the case at hand, the BIA found an absence of

persecution, and the record contains no evidence capable of

compelling the opposite finding. Certainly, it is not enough

merely to show that multiple members of a single family had

negative experiences. Those experiences would, at the very least,

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have to rise to the level of persecution and be causally linked to

family membership. The record here falls short on both points.

In an effort to blunt the force of this reasoning, the

petitioner maintains that the guerillas' recognition of Marín

during the hijacking shows that they knew the family and intended

to target family members because of their anti-FARC leanings. That

scenario requires a huge helping of sheer surmise — and the BIA was

not obligated to accept it as fact. See Pulisir v. Mukasey, ___

F.3d ___, ___ (1st Cir. 2008) [No. 07-1356, slip op. at 10] (noting

that "[t]he mere fact that those decisionmakers weighed the

constituent parts [of a petitioner's proffer] differently and

reached a conclusion not to the petitioner's liking does not

constitute a valid reason for overturning the agency's judgement").

While one of the hijackers might have recognized Marín, the implied

threat voiced by the guerillas can best be classified as an attempt

to ensure Marín's silence, not as part of a vendetta against a

particular family.3

The petitioner's insinuation that the family was targeted

because of Marín's military service is made up out of whole cloth.

There is not a shred of evidence that any family member was

harassed on account of Marín's tour of duty in the army — a tour

3
In this regard, the petitioner also mentions her brother-in-
law's kidnaping. However, there is no evidence that her brother-
in-law was kidnaped due to family membership or any other
statutorily protected ground.

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that concluded years before any of the incidents of alleged

persecution occurred.

III. CONCLUSION

We need go no further. For the reasons elucidated above,

we deny the petition for review.

So Ordered.

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