Ontunez-Tursios v. Ashcroft

REVISED SEPTEMBER 9, 2002

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 00-60650

SANTIAGO NAHUN ONTUNEZ-TURSIOS,

Petitioner,

versus

JOHN ASHCROFT, U.S. ATTORNEY GENERAL,

Respondent.

Petition for Review of an Order of the
Board of Immigration Appeals

August 13, 2002

Before GARWOOD, WIENER and CLEMENT,1 Circuit Judges.

GARWOOD, Circuit Judge:

Honduran citizen Santiago Nahun Ontunez-Turcios appeals the

denial of his application for asylum and withholding of removal

under section 241(b)(3) of the Immigration and Nationality Act

1
Judge Edith Brown Clement participated by designation in the oral argument of this case as
a United States District Judge for the Eastern District of Louisiana. Since that time she has been
appointed as a Fifth Circuit Judge.
(“Act”) and the United Nations Convention Against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment (“Convention”),

arguing that his efforts as part of a Honduran land collective make

him a “refugee.” The immigration judge and Board of Immigration

Appeals held that Ontunez's evidence only demonstrated that his

land conflict was private and economic in nature, that any

persecution of him was not shown to have been on account of his

political opinion or membership in a particular social group, and

therefore he was not entitled to asylum or withholding of removal.

Because Ontunez has not presented evidence that compels the

opposite result, we affirm.

Background

Honduran land reform laws under certain circumstances allow

peasant farmers–“campesinos”--to gain ownership of land lacking a

proper legal title by cultivating it as part of an agrarian reform

plan. See Steven E. Hendrix, Property Law Innovation in Latin

America With Recommendations, 18 B.C. INT'L & COMP. L. REV. 1, 38

(1995). Their efforts, however, are sometimes opposed by business

or landowner interests with plans for private agricultural or other

investment. When legal methods fail the campesinos, they sometimes

occupy private agricultural land illegally and the government

evicts them by such minimal force as is necessary. See United

States Department of State, Honduras: Profile of Asylum Claims &

Country Conditions, January 1999, at 5-6. Although Honduras has

2
elected five presidents in a row through generally fair and

democratic elections, the economic and official elite still possess

“considerable impunity.” See id. at 2; United States Department of

State, Honduras Country Report on Human Rights Practices for 1998,

at 1. Conditions in Honduras were vastly worsened in October 1998,

when Hurricane Mitch devastated the country. From out of this

difficult situation, Ontunez brings his request for asylum and

withholding of removal.

The factual background of this case comes almost exclusively

from Ontunez's own testimony, both at the hearing before the

immigration judge and in his application for asylum. Ontunez

testified that in April 1994, he moved to the city of La Ceiba on

the northern Caribbean coast of Honduras with his live-in companion

and his son. He worked as a mechanic and joined with other

campesinos who wanted to cultivate an area in La Ceiba called Las

Delicias. A woman in the town claimed to have title to Las

Delicias through a document she had never registered; she executed

a power of attorney in favor of the campesinos but refused to

register her legal title because her husband had been murdered in

1965 and she feared reprisals against her son. Each family began

cultivating an area of sixty by forty meters, and they created a

cooperative called the Foundation for the Betterment of Las

Delicias for the purpose of acquiring legal title to the land.

Ontunez was “First Speaker” for the Foundation, which meant that he

3
read the minutes at meetings and encouraged the other campesinos to

remain united in the pursuit of their goal.

In 1996, a group of businessmen challenged the Foundation's

right to the land. This group consisted of five local “landlords,”

including Eugenio “Henyo” Varela (“Varela”) and Mario Melgar

(“Melgar”). Ontunez alleges that Melgar is an attorney who

represents Mario Facusse, the majority stockholder of a prominent

Honduran business2 and the nephew of Carlos Roberto Flores Facusse,

President of Honduras since 1998.3 The landlords4 claimed they had

legal title to Las Delicias and made plans to sell it to Korean

investors.

In late 1996, the landlords threatened to drive the

Foundation's members from Las Delicias. In 1997 a judge ordered

Las Delicias cleared, apparently at Melgar's request, despite

Ontunez's allegations that the landlords produced no evidence of

title justifying the legal action. The police enforced the order

2
In his asylum application, Ontunez calls the corporation
“Gigante.” At his hearing, the court reporter was unable to
understand the name of the corporation but transcribed it
phonetically as “Essay.”
3
The INS did not challenge this assertion or produce evidence
to the contrary. Though there are indications that Mario Facusse
may be a cousin to the Honduran president, not a nephew, we will
consider the evidence as it stood before the BIA. Similarly, we
will not consider indications that Mario Facusse may belong to a
different political party than Flores and may openly oppose him.
4
The briefs for the appellant call these businessmen “The
Facusse Group,” although Ontunez did not use that name. We will
use Ontunez's nomenclature, “the landlords.”

4
by removing the campesinos from the land and completely destroying

their homes, but the Foundation returned to Las Delicias and

rebuilt. At around this time, Foundation treasurer Jesus Pascual

was killed. While Ontunez blames the landlords, he admitted that

there was no evidence of who committed the crime.

The landlords then obtained a “new order” of some kind and

offered to settle the legal title issue with the campesinos for

1,000 lempiras per plot. The Foundation asked for a hearing before

the mayor so that they could determine whether the landlords had

any valid claim to the land justifying the payments. Mayor

Marjorie Dik declined to hold the hearing. Ontunez alleges that

while Dik had generally supported the Foundation because of its

work building a school, she feared reprisals from Varela if she

declared the land belonged to the cooperative. In his application

for asylum, Ontunez intimated that Dik left office in 1998 because

of this fear.5

In 1998, Gonsalo Rivera O'Campo was elected mayor of La Ceiba

and the Foundation again pursued a hearing to negotiate the

question of land title. The parties expected Governor Adalberto

Giron Romero to attend the March 1998 meeting, but he ultimately

refused. Ontunez alleges Giron abstained because he believed the

landlords had no valid title, making the negotiations illegitimate.

5
However, Ontunez testified that Dik served her full term as
Mayor. Perhaps his application intended to suggest that her fear
of reprisals caused her to not seek re-election.

5
Ontunez also alleged his belief that Giron was subsequently removed

from office by President Flores because of his support for the

Foundation.6

After the proposed O'Campo hearing failed in March 1998, the

Foundation and the landlords agreed to come together at a public

meeting to discuss the offered settlement. The Foundation arrived

first, and Ontunez began denouncing official corruption through an

amplified microphone. At least four of the landlords7 arrived with

Marcos Puerto (“Puerto”) and two Honduran police in their company.

When the men were about 25 meters away from Ontunez, Varela nodded

to Puerto, who pulled out an AK-47 rifle and shot Foundation guard

Juan Mejia. While Ontunez took cover, the landlord group returned

to their car and left.

Dissatisfied with the La Ceiba police's investigation into the

murder and concerned for their safety, Foundation members looked

for Puerto themselves. In April, they received a tip that Puerto

was located on the property of Mario Facusse in the city of San

Pedro Sula. The Foundation told the Department of Criminal

Investigations of his location, and the San Pedro Sula police

6
Ontunez's testimony was inconsistent on this point; twice
he claimed Giron was removed from office prematurely and once he
testified that Giron merely left at the end of his term.
7
Ontunez does not list Melgar as being among the landlord
group, although he appears to suggest that they used Melgar’s car
to drive to the meeting. At another point, however, Ontunez blamed
Melgar for bringing the police to the meeting, and attributes to
Melgar a statement implying that he was in the car when the
assassin got in.

6
arrested Puerto. Ontunez testified that the president of the

Foundation, Rosa Mejia, told Ontunez that she had been present

during Puerto's interrogation by the police and that Puerto had

then admitted that the landlords hired him to assassinate Ontunez

and another man, but that he shot Juan Mejia by mistake. Ontunez

speculated that that error came from Puerto's misinterpretation of

Varela's nod toward the Foundation members. Puerto was prosecuted

for his crime, convicted, and incarcerated.

In October 1998, Ontunez went to the land title office in La

Ceiba, where he met and confronted Melgar. Both men were

apparently searching for title records for Las Delicias. Ontunez

accused Melgar of being an accomplice to the death of Mejia, while

Melgar apparently denied the allegation and claimed that he was

afraid of the assassin as well. Ontunez's search of the land

records turned up no registered title to Las Delicias. It was in

this month that Hurricane Mitch hit Honduras and devastated the

nation, destroying nearly everything in Las Delicias. Among the

items destroyed were the Foundation's collection of public

documents regarding the landlords. Ontunez testified that he had

been to several cities gathering the criminal histories of the

landlords and their employees as well as records of the complaints

filed against them.

In April 1999, six months after the confrontation with Melgar,

the landlords or those Ontunez thought to be acting for them came

7
armed to Ontunez's home and threatened his life. Ontunez feared

for his safety and fled to his brother's house in San Pedro Sula,

leaving his family behind. By the end of July, Ontunez missed his

family and returned to Las Delicias, despite his fear of being

killed. When he returned, two of the landlords and their guards

came to Ontunez's house with weapons and ordered him to leave town

within one month and fifteen days or they would remove him from Las

Delicias, either in “a good way or in a bad way.”8 An unidentified

young man was with them, who stared at Ontunez during the meeting.

After they left, a neighbor told Ontunez that the young man had

said “this deer will not escape me” or words to that effect.

Ontunez took this as a death threat and described the young man as

a paid assassin, but admitted that he had no direct knowledge of

the young man's motive. At the urging of his mother, Ontunez left

his family behind and fled Honduras. He first entered Guatemala

legally, and then traveled to Mexico and crossed the Rio Grande

river near Hidalgo, Texas. He was apprehended by the Border Patrol

while attempting to evade the Falfurrias checkpoint on September

19, 1999.

Ontunez conceded his removability at a hearing on October 15,

8
Ontunez's story regarding these two confrontations is
frequently confusing, especially comparing his application for
asylum and his oral testimony. This version of events is the one
that best fits Ontunez's various assertions and his clarifications
in cross-examination.

8
19999 and applied for asylum. At his hearing before the

immigration judge on December 15 and 20, 1999, Ontunez offered the

above testimony and some documents. Among these documents was a

letter from Raul G. Tovar Ramos, present governor of Atlantida,

which attests to Ontunez's good character and corroborates that

Ontunez's life was threatened by “various unscrupulous persons and

neighbors” in La Ceiba. Governor Tovar also attests that Ontunez

was a victim of Hurricane Mitch. In another document, Honduran

attorney Paul Tovar Vargas avers that Ontunez has charged “several

individuals of dubious reputation” in La Ceiba of threatening his

life in an attempt to take his land, and that this was the reason

he emigrated to the United States.

The immigration judge noted that an application for asylum

should also be construed as an application for withholding of

removal under both the Act and the Convention, and then denied

Ontunez relief on all three counts. Despite pointing out several

inconsistencies in Ontunez's testimony, the immigration judge found

his testimony generally credible. Nevertheless, the judge held

that Ontunez was not a “refugee” as defined in 8 U.S.C. §

1101(a)(42) because his situation did not arise “on account of” any

of the five enumerated motives for the claimed persecution: “race,

religion, nationality, membership in a particular social group, or

political opinion.” Ontunez failed to carry his burden, the

9
The transcript is dated April 15, 1999, but from other
documents it seems clear that “April” is an error.

9
immigration judge held, because his conflict with the landlords was

not shown to arise other than solely from a private fight over

land. The landlords did not act against Ontunez because of

Ontunez’s political opinions or membership in a particular social

group. Accordingly, the judge denied Ontunez's requests for asylum

and withholding of removal under the Act. The judge also held that

Ontunez had not shown he would be subject to torture upon return to

Honduras and thus denied Ontunez's claim under the Convention.

The Board of Immigration Appeals acknowledged that Ontunez had

demonstrated that the landlords possessed both the economic desire

to sell Las Delicias to foreign investors and a willingness to

threaten those who got in the way, but concurred with the

immigration judge that Ontunez had not shown a nexus between the

persecution and one of the persecutors’ motives enumerated in the

Act. The BIA then discussed the Convention's requirement of a

government connection to the feared torture and held that Ontunez

was not entitled to protection under the Convention because he had

not shown that a government official would instigate torture or

acquiesce to it. The BIA dismissed Ontunez's appeal and he timely

appealed to this court.

Discussion

I. Legal Error in the Asylum Claim

Ontunez first asserts on appeal that the BIA applied an

incorrect legal standard to his request for asylum. We review the

10
BIA's conclusions of law de novo. Mikhael v. INS, 115 F.3d 299,

302 (5th Cir. 1997). We review the decision of the BIA, and reach

the underlying decision of the immigration judge only if that

decision has some impact upon the BIA's opinion. Id.

Section 208(a) of the Immigration and Nationality Act, 8

U.S.C. § 1158(a), grants the Attorney General the discretion to

permit asylum to an alien who is a “refugee,” a term which is

defined as an alien who is unable or unwilling to return to his or

her country of origin 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.”

See 8 U.S.C. § 1101(a)(42)(A). Ontunez's legal error appeal

concerns the “on account of” language, which requires the alien to

prove some nexus between the persecution and the five protected

grounds. See generally INS v. Elias Zacharias, 112 S.Ct. 812

(1992). Ontunez claims that the BIA looked at his evidence only as

proof of economic conflict without considering that it also

demonstrates a political struggle. Therefore, Ontunez argues, the

BIA applied too stringent a standard and effectively required him

to demonstrate that his persecution was primarily on account of a

protected ground rather than merely that his persecution had some

nexus to a protected ground.

Ontunez relies upon Rivas-Martinez v. INS, 997 F.2d 1143 (5th

Cir. 1993), a case in which the BIA incorrectly applied an “either-

11
or” analysis to the “on account of” requirement. In Rivas-

Martinez, El Salvadorean FMLN guerillas ordered Rivas to help them

in their struggle against the government, but she refused. Id. at

1145. She told the guerillas she could not help them because she

was a widowed mother and had to give constant care to a small

child; she actually refused because she strongly supported the

government. Id. When the guerillas refused to accept her

proffered reason, she chose to flee rather than support the FMLN.

Id. While the immigration judge granted her asylum, the BIA

reversed because it reasoned that Rivas had given a non-political

reason for her refusal and thus logically could not have been

persecuted “on account of” a political opinion as required in the

Act. Id. On appeal, this court reversed the BIA and remanded for

reconsideration. Without examining the sufficiency of Rivas's

evidence, we found that the nexus requirement is not an “either-or”

proposition. Instead, the proper standard allows the applicant’s

testimony to prove the necessary persecution even though other

evidence fails to advance her cause. Thus, while Rivas offered a

non-political excuse to the guerillas, it was error for the BIA to

categorically prevent her from showing political persecution

through other evidence. After all, the guerillas may have known

her statement was false because they had other knowledge of her

politics. Id. at 1147-48. Accordingly, we remanded to the BIA for

reconsideration. Id.

12
 It is true that Rivas-Martinez counsels that the applicant

must merely demonstrate some nexus between persecution or a well-

founded fear of persecution and one of the conditions enumerated in

8 U.S.C. § 1101(a)(42), notwithstanding evidence that persecution

may have also been based upon other reasons. The BIA correctly

applied this standard to Ontunez's case, however. The BIA stated

in its opinion:

“Regardless of the fact that the Facusse Group may have
been aware of the respondent's claimed political opinion,
we find that based on the record before us, the
respondent failed to establish that the Facusse Group's
alleged destruction of his home and crops and threats to
kill him are in any way related to his political opinion,
rather than to the Facusse Group's desire to retaliate
against him or intimidate him for his actions in
convincing the members of the land cooperative of which
he was a leader to not give up the cooperative's lands to
the Facusse Group, which land the Facusse Group wanted to
complete a business deal with foreign investors.”
(emphasis added)

Unlike Rivas-Martinez, in which the BIA clearly stated an

incorrect legal standard, the BIA appears to have stated and

applied the correct legal requirement. The BIA asked the correct

question: does the evidence demonstrate persecution or fear of

persecution “on account of” political opinion? They state the

standard as “in any way related to,” which admittedly is not a

word-for-word restatement of the standard. Yet, it demonstrates

that the BIA understood the necessity of a nexus and found that no

nexus existed, thus arguably construing the proper legal standard

even more generously in Ontunez's favor. We therefore do not read

13
the BIA's opinion as holding that Ontunez could never prove a nexus

between his political opinion and persecution by the landlords

because his evidence demonstrates an economic motive. Instead, the

BIA simply held that Ontunez's evidence showed no motive of the

persecutors other than a private, economic one and failed to

establish persecution to any extent on account of or motivated by

Ontunez’s political opinion or membership in a particular social

group. The BIA did not disregard mixed motive; Ontunez failed to

meet his burden of proof of a mixed motive. Rivas-Martinez

therefore does not apply.10

This court addressed similar language in Girma v. INS, 283

F.3d 664 (5th Cir. 2002). In Girma, the petitioner claimed that

the INS had failed to properly comprehend the “mixed motive”

doctrine, erroneously requiring Girma to exclude all possibilities

other than the protected factors. Id. at 667. Girma relied

heavily on the BIA's use of the words “rather than,” id. at 668,

which suggested the either-or dynamic forbidden in mixed motive

cases. After deciding that other portions of the opinion showed

the BIA had in fact applied the mixed motive standard correctly,

this Court stated that:

10
Moreover, in Rivas-Martinez the guerillas who threatened
Rivas were an overtly political anti-government guerilla force,
which immediately suggested a nexus between Rivas’s political stand
and the actions of the FMLN. Here, Ontunez's enemies are not shown
to have any political agenda. This is another distinction between
Ontunez's case and Rivas's.

14
 The BIA's use of the phrase 'rather than,' was not an
expression of a mutual exclusivity standard between protected
and unprotected grounds but an explanation of its findings
concerning the sufficiency of the evidence relative to
multiple possible motivating grounds, two of which are
protected and one which is not. Id.

We apply the same analysis and reach the same conclusion. While

Ontunez strenuously disagrees with the BIA's conclusion, and while

the BIA used language more equivocal than would be ideal, Ontunez

has not shown that the BIA misunderstood the standard to be applied

to his case. Ontunez's claim of legal error must fail, and

accordingly we will affirm the BIA's decision.

II. Factual Sufficiency in the Asylum Claim

Ontunez next argues that the BIA erred by finding his evidence

insufficient to support a claim of persecution on account of

political opinion or membership in a particular group. This court

reviews “factual findings by the Board to determine if they are

supported by substantial evidence in the record.” Mikhael v. INS,

115 F.3d 299, 302 (5th Cir. 1997). “The substantial evidence

standard requires only that the Board's conclusion be based upon

the evidence presented and be substantially reasonable.” Silwany-

Rodriguez v. INS, 975 F.2d 1157, 1160 (5th Cir. 1992) (quoting

Rojas v. INS, 937 F.2d 186, 189 (5th Cir. 1991)). For this Court

to reverse a factual finding of the BIA, the applicant must show

that “the evidence he presented was so compelling that no

reasonable factfinder could fail to find the requisite fear of

persecution.” INS v. Elias-Zacarias, 112 S.Ct. 812, 817 (1992);

15
Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001).

a. Political Opinion

In order to gain asylum because of persecution due to

political opinion, the alien must first show that his persecutors’

actions were motivated by his, the alien’s, political opinions.

Rivas-Martinez, 997 F.2d at 1147. The relevant question is the

motivation of the persecutor. The alien must demonstrate through

some evidence, either direct or circumstantial, that the

persecutors know of his (the alien’s) political opinion and has or

will likely persecute him because of it. Id. Ontunez argues that

he produced evidence that compels such a finding.

Ontunez relies upon two cases in which circuit courts found

the applicant's actions to be political. In the first, Osorio v.

INS, 18 F.3d 1017 (2nd Cir. 1994), a Guatemalan union leader fled

to the United States after violence broke out in connection with

his union's struggle with their employers, the Guatemalan

government. The immigration judge denied asylum and withholding of

deportation, and the BIA affirmed that decision on the grounds that

struggles between labor and management were economic in nature.

Id. at 1028. The Second Circuit reversed because it interpreted

the BIA's decision as having illogically concluded that evidence of

economic motivation precludes any finding of political persecution,

much like our decision in Rivas-Martinez. Id. The court found

that Osorio's activities had a political aspect because the

16
government perceived the union's economic struggle as threatening

its political power. Id. at 1029-30.

The second case cited by Ontunez is Desir v. Ilchert, 840 F.2d

723 (9th Cir. 1988). In that case, Haitian fisherman Desir was

ordered to pay bribes to the Haitian security force, the Ton Ton

Macoutes. When he failed to pay the required bribes, Desir was

arrested and assaulted by the Macoutes. Id. at 724-25. Desir fled

to the United States, where the immigration judge and BIA refused

him asylum or prohibition of deportation because his persecution

arose solely because he failed to pay money. Id. at 725. The

Ninth Circuit reversed, holding that Desir had amply proven that he

was persecuted on account of his political opinion. The court

relied upon sources deeming Haiti a “kleptocracy,” or government by

theft, and recognized that the failure to pay bribes in such a

government not only offended the Ton Ton Macoutes's finances, but

their politics as well. Id. at 727-28. Because the Duvalier

regime ruled by the fear engendered by these forced bribes, Desir's

resistance led to his categorization as a subversive. This

categorization, the court held, was properly categorized as

political resistance. Id. at 728.

In contrast, the INS refers us to the case of Cuevas v. INS,

43 F.3d 1167 (7th Cir. 1995). In that case, Felisa and Teofilo

Cuevas owned land in the Philippines and rented it to farmers who

used it to grow rice. The tenants stopped paying rent and

17
eventually demanded the right to buy the land. When the Cuevases

refused, they were threatened by anonymous people whom they

believed were connected with the New People's Army, the armed wing

of the Communist Party in the Philippines. Id. at 1169. The

Cuevases fled to America, but the immigration judge and BIA

determined that they had not shown a well-founded fear of

persecution on account of their political opinion. Id. The

Seventh Circuit agreed, holding that despite the possible political

connection “[p]etitioners have transformed a relatively minor land

dispute in an isolated part of their country into a paranoic [sic]

fear of harm anywhere in the Philippines.” Id. at 1171.

Ontunez's case does not resemble Osorio and Desir, cases in

which the alien acted in direct opposition to government policies.

and instrumentalities. In those cases, the direct government

connection cast a political shadow over an otherwise largely

economic claim. Here, the closest connection between Ontunez and

the government is that he stands in economic competition with the

attorney for a businessman who is the nephew of the man who became

President in 1998. Ontunez also draws a governmental connection

from the fact that two local police officers were with the

landlords when Puerto assassinated Mejia. Neither connection

compels us to read his evidence in a new, more overtly political

light.

On appeal, Ontunez must set forth evidence so compelling that

18
“no reasonable factfinder could fail to find” the requisite

elements. Elias Zacarias, 112 S.Ct. at 817. Ontunez has not met

this very difficult requirement because reasonable factfinders

could be unpersuaded that the landlords were motivated by the

political aspects of Ontunez's struggle. The landlords did not

demand Ontunez's silence, they only demanded that he leave Las

Delicias “in a good way or a bad way.” This suggests that the

landlords neither hated him for his general political opposition to

the moneyed elites nor wished to silence his impassioned speeches;

they just wanted him off the land so they could develop it.

Second, Ontunez did not receive any threats while he was in San

Pedro Sula, which suggests that the landlords were satisfied so

long as he remained off the land. Third, we note that the

landlords were willing to settle the land title issue with the

campesinos. While the sum they demanded may have been more than

the farmers could pay, as Ontunez alleges in his brief, the offer

need not have been a sham and may have been a fair offer given

Ontunez's testimony regarding the land's economic potential. At

any rate, the offer indicates that the landlords were interested in

the economic potential of Las Delicias and not in the broader

political struggle.

While the landlords' focusing on the leaders of the Foundation

rather than the rank-and-file campesinos might arguably suggest a

political motive, that argument ultimately fails because the

19
evidence suggests that the landlords would not accept the passive

presence of the campesinos any more than they accepted the vocal

protests of Ontunez and the Foundation. Their goal was simply a

vacant Las Delicias. As a result, we cannot say that all

reasonable factfinders would feel compelled to accept Ontunez's

interpretation of or inferences from the facts. We affirm the

BIA's decision in this respect.

b. Membership in a Particular Social Group

Ontunez next claims that substantial evidence compels the

conclusion that he was persecuted on account of his membership in

the particular social group of “land rights leaders.” To establish

that he is a member of a “particular social group,” he must show

that he was a member of a group of persons that share a common

characteristic that they either cannot change or should not be

required to change because it is fundamental to their individual

identities or consciences. See Matter of Acosta, 19 I&N Dec. 211,

233 (BIA 1985). Once the alien has made this showing, he must also

show that he was persecuted “on account of” such membership.

The BIA did not reach the issue of whether Ontunez was a

member of a particular social group constituted of activist

agrarian cooperative leaders because it held that Ontunez had not

shown that the landlords' actions were “on account of” such

membership. Ontunez argues that the BIA made an impermissible

“metaphysical” distinction between his status as a resistance

20
leader and the actions that led to that status; that is, that the

BIA relied on the actions themselves without considering their

import. We disagree with this construction, which takes a valid

distinction and attempts to render it incoherent.

The evidence does not compel a finding that the landlords

cared whether Ontunez was in the particular social group of

“activist agrarian cooperative leaders”; it shows they cared about

the land in Las Delicias but does not compel the conclusion that

they cared about his activism generally. Ontunez only offered

evidence of persecution against the Foundation, not against other

agrarian leaders. The fact that a persecutor has not opposed other

members of the same group suggests that the persecution was not on

account of that group membership. See Matter of R-A-, Interim

Decision 3403 (BIA 1999) (“If group membership were the motivation

behind his abuse, one would expect to see some evidence of it

manifested in actions toward other members of the same group.”).

Similarly, Ontunez offered no evidence suggesting that the

landlords would be happy to allow the campesinos to stay if their

leadership departed, as might be expected if the landlords were

motivated by his membership in the group of activist leaders.

Neither does his evidence suggest that the landlords would oppose

him if he were a member of the agrarian activists but not impeding

their plans for Las Delicias. Instead, Ontunez essentially

testified that the landlords only cared about getting Las Delicias

21
or an equivalent amount of cash.

Ontunez failed to present evidence that takes the crucial step

from persecution because of economic desire to persecution because

of membership in the group of land activists. The distinction is

not “metaphysical.” Because he has not demonstrated evidence so

compelling that reasonable factfinders could not find otherwise, we

affirm the decision of the BIA in this respect.

III. The Convention Against Torture

Ontunez's final arguments concern his claim for withholding of

deportation under the Convention Against Torture. He argues that

the BIA applied an incorrect legal standard to his case, and that

his evidence compels findings of fact different than those reached

by the BIA. We apply the same standards of review applied to the

BIA's holdings on asylum claims. See Carabajal-Gonzales v. INS, 78

F.3d 194, 197 (5th Cir. 1996) (discussing those standards);

Kamalthas v. INS, 251 F.3d 1279 (9th Cir. 2001) (applying same

standards to Convention review); Ali v. Reno, 237 F.3d 591 (6th

Cir. 2001) (generally applying the same standard to the

Convention). We must let stand a decision that an alien is not

eligible for admission to the United States unless that decision is

“manifestly contrary to law.” Ali, 237 F.3d at 596; 8 U.S.C. §§

1252(b)(4)(c).

a. Legal Review

Ontunez first argues that the BIA adopted the incorrect legal

22
standard when it stated:

[T]he respondent must provide evidence that the torture
he fears at the hands of the Facusse Group or their hit
man would be “at the instigation of or with the consent
or acquiescence of” Honduran officials or persons acting
in an official capacity. 8 C.F.R. § 208.18(a)(1).

Because this statement did not include the burden of proof, which

8 C.F.R. § 208.16(c)(2) explains is “more likely than not,” Ontunez

asserts that the BIA applied an incorrect legal standard in

reviewing his evidence. We disagree. Not every explanation of law

must contain the burden of proof to be true, and the BIA's

statement is correct as far as it goes. Nothing in the BIA’s

opinion demonstrates that it misapplied the burden of proof. We

therefore reject this contention of Ontunez.

b. Factual Review

In order for Ontunez to succeed in his request for withholding

of removal based on the Convention, he must meet his burden of

showing that more likely than not he would be subjected to

“torture” upon his return. See 8 C.F.R. § 208.16(c)(2). Torture

is defined in 8 C.F.R. § 208.18(a)(1), which requires inter alia

that the “pain or suffering is inflicted by or at the instigation

of or with the consent or acquiescence of a public official or

other person acting in an official capacity.” The regulations

later clarify that “[a]cquiescence of a public official requires

that the public official, prior to the activity constituting

torture, have awareness of such activity and thereafter breach his

23
or her legal responsibility to intervene to prevent such activity.”

8 U.S.C. § 208.18(a)(7). “Willful blindness” suffices to prove

“acquiescence.” See In re S-V-, Int. Dec. 3430 (BIA 2000) (en

banc).

The BIA rejected Ontunez's request for withholding of

deportation because he failed to show that Honduran public

officials would acquiesce in his torture. Specifically, the BIA

held that even if the landlords had general support in some sectors

of the Honduran government, that support alone did not establish

that Honduran officials would acquiesce in his torture. Ontunez

challenges this finding, pointing out other governmental

connections in his story: the police escort to the Mejia

assassination, the fact that the police never apprehended the

landlords for the assassination, the police clearing Las Delicias

in 1997, the impunity given the landlords while they persecuted

Foundation leaders, and the Honduran government's policy of

dislodging squatters. Ontunez claims all this evidence would

compel reasonable factfinders to find the necessary acquiescence by

the Honduran government.

We disagree that his evidence compels a different result than

the one reached by the BIA. First, while the police escort to the

Mejia assassination is troubling, the police ultimately arrested

Puerto, convicted him, and incarcerated him. Second, though the

landlords were not arrested for the crime after Puerto's

24
confession, Ontunez's testimony that Melgar denied complicity in

the assassination provides at least some explanation why the

Honduran government did not prosecute or arrest them. Third,

Ontunez argues police complicity in the clearing of Las Delicias,

but he also testified that it was done pursuant to a court order.

We can hardly fault the Honduran police for enforcing court orders,

even though Ontunez claims the order was tainted. Fourth, the

Honduran government does indeed have a policy of dislodging

squatters, as noted in a State Department report, but Ontunez fails

to note that the report says that the government only dislodges

squatters who are on the land illegally, and does so with minimal

force. See United States Department of State, Honduras: Profile of

Asylum Claims & Country Conditions, January 1999, at 5-6. This

does not suggest they would turn a blind eye to torture. Finally,

the possible connection between Melgar and President Flores does

not compel a finding that the President would ignore torture,

especially in light of Ontunez's repeated testimony that the

landlords attempted to follow the legal process.

Ontunez has not presented evidence that compels a finding that

officials would acquiesce in “torture” committed by the landlords.

Accordingly, we will affirm the decision of the BIA.

Conclusion

Though Ontunez was placed in danger by his fight for Las

Delicias, he has not proffered evidence that compels a finding that

25
the danger arose from his persecutors’ view of his political

opinions or his membership in the group of land activists. Neither

does the evidence compel the conclusion that the Honduran

government would acquiesce in acts of torture by the landlords.

Finally, we are not persuaded that the BIA made material legal

errors in its opinion. The decision of the BIA must therefore be

affirmed.

AFFIRMED

26