United States Court of Appeals
For the First Circuit
No. 08-1895
PABLO LÓPEZ-CASTRO,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD
OF IMMIGRATION APPEALS
Before
Lipez, Selya and Howard, Circuit Judges.
Randy Olen on brief for petitioner.
Tony West, Assistant Attorney General, Civil Division, Anthony
W. Norwood, Senior Litigation Counsel, and Richard Zanfardino,
Trial Attorney, Office of Immigration Litigation, on brief for
respondent.
August 18, 2009
SELYA, Circuit Judge. The petitioner, Pablo López-
Castro, is a Guatemalan national, born in 1975, who seeks judicial
review of a final order of removal entered by the Board of
Immigration Appeals (BIA). The petitioner concedes removability,
but challenges the BIA's denial of his cross-application for
withholding of removal. After careful consideration, we conclude
that the petition lacks merit.
The facts are straightforward. In May of 1995, the
petitioner entered the United States without inspection. Almost
ten years later, the Department of Homeland Security issued a
notice to appear, charging him with illegal entry into the United
States in violation of 8 U.S.C. § 212(a)(6)(A)(I). The petitioner
admitted the truth of the factual averments contained in the
notice, conceded removability, and cross-applied for withholding of
removal.1
At a hearing before an immigration judge, (IJ), the
petitioner testified about the travails that his family had endured
in Guatemala in the early 1980s. The general theme of his
testimony was that, as members of an ethnic minority — the family
was of indigenous Mayan Quiche ancestry — his relatives were
mistreated by both the government and guerilla fighters. The
1
The petitioner sought alternative relief as well, but those
requests are not now pursued.
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petitioner was a mere lad at the relevant times, and his
information was mostly second-hand.
Specifically, he recalled that when he was ten years old,
his mother told him that two of his cousins had been slain by a
paramilitary group in 1982. Around the same time, he also learned
that, in 1982, his uncle and three more relatives (the uncle's
wife, mother-in-law, and sister-in-law) had been murdered in their
home. He admitted that he did not know who killed these relatives
or why they were slaughtered.
In the same vein, the petitioner related that his father
was compelled to serve on civil patrol duty during Guatemala's
civil war. The petitioner attributed this forced service, in part,
to his father's ethnicity. His father was killed in 1983 by
guerrillas while on duty with his patrol unit. No further details
were forthcoming.
At that juncture, the petitioner left school to help
support his family. Notwithstanding the terrible events that had
occurred earlier, he remained in Guatemala for many years.
The petitioner further testified that, in 1995, he
repaired to the United States in order to find employment because
of what he perceived as discrimination against the Mayan Quiche in
the Guatemalan job market. Nevertheless, he was unable to offer
any specific examples of such discrimination.
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The civil war ended in 1996. There was, however, one
more incident: according to the petitioner a group of gang members
recently had attempted to burglarize his sister's house. He
ruminated on what dangers he might face should he be removed to his
homeland because, as a person returning from the United States, he
would be perceived by gang members as a person of means (and, thus,
as a high-yield target).
To complete his case, the petitioner submitted
documentary evidence, including several Amnesty International
reports and a 2006 State Department report on human rights for
Guatemala. These reports indicate that although Guatemala is no
longer embroiled in a civil war, indigenous Mayans are subjected to
racial discrimination, politically underrepresented, and
disproportionately poor.
At the conclusion of the hearing, the IJ ruled from the
bench. The IJ found the petitioner's testimony generally credible
but concluded that the evidence failed to satisfy the petitioner's
burden of proof. Specifically, the IJ found that the petitioner
had not provided significantly probative evidence that either he or
his family members had been targeted for persecution because of
their ethnic minority status and, therefore, that the petitioner
had failed to establish a nexus between the past harm that he had
described and a statutorily protected ground. Similarly, the IJ
found that the petitioner had not established that, more likely
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than not, he would be persecuted in the future should he return to
Guatemala. These findings culminated in a denial of the
petitioner's cross-application for withholding of removal.
As an alternative ground for denying relief, the IJ held
that even if a nexus existed between the harm and a statutorily
protected ground, the end of the civil war in 1996 marked a
fundamental change in circumstances. That shift made it unlikely
that the petitioner would be persecuted upon his return to
Guatemala and, thus, counseled persuasively against withholding of
removal.
The petitioner administratively appealed this decision.
The BIA affirmed without opinion. This timely petition for
judicial review followed.
On a petition for judicial review in an immigration case,
we ordinarily focus on the opinion of the BIA. But when, as now,
the BIA has not written its own rescript but, rather, has deferred
to the IJ's decision, we review the latter decision directly.
Romilus v. Ashcroft, 385 F.3d 1, 5 (1st Cir. 2004).
In conducting that tamisage, we review findings of fact
(including credibility determinations) under the deferential
"substantial evidence" standard. Id. Accordingly, we must leave
those findings undisturbed as long as they are "supported by
reasonable, substantial, and probative evidence on the record
considered as a whole." Nikijuluw v. Gonzales, 427 F.3d 115, 120
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(1st Cir. 2005). We will reverse only if the record is such as
would "compel a reasonable factfinder to reach a contrary
determination." Chhay v. Mukasey, 540 F.3d 1, 5 (1st Cir. 2008).
Abstract legal determinations are afforded de novo
review. Da Silva v. Ashcroft, 394 F.3d 1, 5 (1st Cir. 2005). Even
in that arena, however, we cede some deference to the agency's
interpretation of statutes and regulations that fall within its
purview. See Chhay, 540 F.3d at 5; see also Chevron U.S.A., Inc.,
v. Nat'l Res. Def. Council,Inc., 467 U.S. 837, 844 (1984).
This brings us to the particular relief sought in the
instant case: withholding of removal. The legal framework that
governs applications for withholding of removal is well-settled.
To be eligible for that relief, an alien must show either that (i)
he has suffered past persecution on account of a statutorily
protected ground, thus "creating a rebuttable presumption that he
may suffer future persecution" if repatriated, or (ii) that it is
"more likely than not that he will be persecuted on account of a
protected ground upon his return to his native land." Da Silva,
394 F.3d at 4.
There are five statutorily protected grounds: race,
religion, nationality, membership in a particular social group, and
political opinion. Romilus, 385 F.3d at 6 (citing 8 C.F.R. §
208.13(b)(1)). Here, the petitioner claims persecution on account
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of ethnicity — a statutorily protected ground.2 The IJ rejected
this claim on the basis that the petitioner had failed to forge a
sufficient nexus between the harm alleged (past and future) and his
ethnicity. As we explain below, that determination is supported by
substantial evidence.
The petitioner's evidentiary presentation was
characterized by significant gaps. He testified that his two
cousins were shot by soldiers, but he adduced no evidence that the
soldiers had targeted them because of their ethnicity. He stated
only that they had run from the soldiers because they "thought"
that the soldiers "were going to look for them."
By like token, the petitioner testified to four murders
involving his uncle's family — but he admitted that "nobody knew
who" had committed these murders or why they had happened. Without
knowing who was responsible for the killings or what had prompted
them, it is no more than a guess that a nexus existed between the
deaths and a statutorily protected ground.
The petitioner's remaining testimony fares no better.
The testimony that his father was conscripted and later died while
serving with a civil patrol unit does not adumbrate either that the
forced service was anything other than a general obligation imposed
2
Although Congress has not defined the term "particular
social group," case law instructs that the term includes "a[ny]
group with some immutable trait (such as an ethnic group)." Elien
v. Ashcroft, 364 F.3d 392, 396 (1st Cir. 2004). Ethnicity
therefore qualifies as membership in a particular social group.
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upon citizens in a time of national emergency or that the death was
anything other than one more tragic incident in a violent civil
war. So, too, the testimony about the attempted burglary;
although crime is an unpleasant consequence of life in many modern
societies, victimization by a criminal element, without more, is
not probative of ethnic persecution.
The conclusion, then, is irresistible. Although an alien
may carry the burden of persuasion for withholding of removal by
his own testimony, that testimony must be specifically probative.
See Chhay, 540 F.3d at 6. In this instance, the petitioner's
narrative left too much to speculation and surmise.
Here, moreover, the petitioner was very young at the time
of the described events3 and the accounts of what transpired were
conveyed to him by his mother. Thus, even though the petitioner's
testimony was thought to be generally credible (i.e., the IJ
believed that the described events actually occurred), the IJ
3
The petitioner asserts that the IJ erred in failing fully to
consider his age at the time of his relatives' deaths as a factor
bearing upon the existence of past persecution. This assertion is
flawed. The petitioner's youth at the time of the events does not
excuse a failure to prove an adequate connection between the stated
harm and a statutorily protected ground. The case on which the
petitioner relies in framing this assertion is inapposite. That
case, Jorge-Tzoc v. Gonzales, 435 F.3d 146, 150 (2d Cir. 2006),
involved an asylum application, which we evaluate under a separate
"well-founded fear of future persecution" standard. See id.
Moreover, the principal issue there was whether the petitioner had
been persecuted, not whether that persecution was "on account of"
a statutorily protected ground. While age may be a factor in
determining whether mistreatment rises to the level of persecution,
id., that is not the issue here.
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supportably found that this testimony lacked the necessary
specificity. Seen in this light, the IJ's conclusion that the
testimony did not furnish an adequate nexus between the events and
a statutorily protected ground was supported by substantial
evidence. See, e.g., Pulisir v. Mukasey, 524 F.3d 302, 309 (1st
Cir. 2008); Aguilar-Solis v. INS, 168 F.3d 565, 571 (1st Cir.
1999).
The documentary evidence introduced at the hearing did
not fill this void. That evidence is general in nature and,
although it bears peripherally on the matters at issue here, it
does not serve to tie any of the events that the petitioner
described to a statutorily protected ground. Thus, the documentary
evidence does not compel a conclusion that the agency erred in
finding insufficient proof of a nexus between the harm complained
of and a statutorily protected ground.
Once the evidence as a whole is placed in the proper
legal perspective, the petitioner's case collapses. At bottom, his
claim is that the record compels a conclusion that, more likely
than not, he will suffer persecution on the basis of a statutorily
protected ground should he be remitted to Guatemala. The IJ's
finding that the petitioner failed to prove past persecution erases
any possibility of a presumption of future persecution. See Ruiz
v. Mukasey, 526 F.3d 31, 37 (1st Cir. 2008); Pulisir, 524 F.3d at
310. This leaves the petitioner dependent upon his ability to show
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a clear probability of future persecution. He cannot do so on this
record.
To show a clear probability of future persecution, an
alien must demonstrate that it is likely that he will suffer
persecution based on one of the statutorily protected grounds
should he be repatriated. See 8 C.F.R. § 208.16(b); De Oliveira v.
Mukasey, 520 F.3d 78, 79 (1st Cir. 2008).
Here, the IJ deemed the petitioner's testimony to be
generally credible — but the test of a clear probability of future
persecution is objective, not subjective. INS v. Cardoza-Fonseca,
480 U.S. 421, 430-31 (1987).
The petitioner cannot vault over this hurdle. As we have
explained, his anecdotal evidence is not probative of persecution
due to the absence of any link between the described incidents and
a statutorily protected ground. The petitioner's other evidence,
which includes several Amnesty International human rights and State
Department reports, makes manifest that members of the Mayan Quiche
minority continue to face various disadvantages in Guatemala.
These disadvantages include discrimination, poverty, and lack of
political clout.
Disadvantage, however, is not synonymous with
persecution. Although Congress has not explicitly defined
"persecution," the case law is instructive. It tells us, for
instance, that persecution requires "more than mere discomfiture,
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unpleasantness, harassment, or unfair treatment." Nikijuluw, 427
F.3d at 120. Furthermore, persecution "implies some connection to
government action or inaction." Id. at 121-22.
Though troubling, the sum total of the disadvantages
reflected in the evidence falls well short of compelling a finding
that a likelihood of future persecution (as that term has been
defined in the case law) exists. Unfair treatment, without more,
does not equate with persecution.4 See, e.g., Orelien v. Gonzales,
467 F.3d 67, 71 (1st Cir. 2006); Bocova v. Gonzales, 412 F.3d 257,
264 (1st Cir. 2005).
In an effort to blunt the force of this reasoning, the
petitioner suggests that he would be exposed to an increased risk
of future attacks by gang members in Guatemala because he will be
perceived as wealthy. That suggestion fails to establish an
objectively reasonable basis for a fear of future persecution
premised on a statutorily protected ground. A country-wide risk of
victimization through economic terrorism is not the functional
equivalent of a statutorily protected ground, and hostile treatment
based on economic considerations is not persecution. See, e.g.,
Ruiz, 526 F.3d at 36-37 (explaining that threats "motivated . . .
4
We note that the rest of the petitioner's family still lives
in Guatemala. He presented no evidence that any of them has, since
the petitioner's departure from Guatemala, suffered any harm at the
hands of either the government or those acting with its connivance
or acquiescence. The absence of such evidence is entitled to
weight in the decisional calculus. See Nikijuluw, 427 F.3d at 122;
Aguilar-Solis, 168 F.3d at 573.
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by greed" lack adequate nexus to any statutorily protected ground);
Lopez de Hincapie v. Gonzales, 494 F.3d 213, 220 (1st Cir. 2007)
(noting that threats of extortion do not trigger statutory
protection).
If more were needed — and we doubt that it is —
persecution requires some connection to government. See Nikijuluw,
427 F.3d at 120-21. That connection is missing here. See Palma-
Mazariegos v. Gonzales, 428 F.3d 30, 37 (1st Cir. 2005) (rejecting
"the contention that pervasive non-political criminality in
Guatemala constitutes a basis for asylum").
We need go no further.5 For the reasons discussed above,
we deny the petition for review.
So Ordered.
5
Because the IJ's principal ground of decision is supported
by substantial evidence, we have no occasion to address the IJ's
alternative holding that changed circumstances have ameliorated any
realistic possibility of future persecution.
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