[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JAN 08, 2009
No. 08-11268 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A98-873-559
GUILLERMO GONZALO GUERRA SANCHEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(January 8, 2009)
Before CARNES, HULL and FAY, Circuit Judges.
PER CURIAM:
Guillermo Gonzalez Guerra Sanchez, a citizen of Guatemala, petitions for
review of the Board of Immigration Appeals’ ("BIA") order affirming the
immigration judge's ("IJ") denial of withholding of removal and granting voluntary
departure. After review, we grant in part and deny in part the petition.
I. BACKGROUND
Guerra Sanchez entered the United States without authorization on or about
September 15, 1998. On November 10, 2005, the Department of Homeland
Security issued a Notice to Appear charging him with removability under INA §
212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the United
States without being admitted or paroled. Guerra Sanchez filed an application for
asylum, withholding of removal and relief under the Convention Against Torture
(“CAT”), claiming that he was persecuted in Guatemala because of his political
opinion and race.
According to his application and hearing testimony, Guerra Sanchez was a
shoemaker in Guatemala. In 1996, Guerra Sanchez campaigned for a political
party, XEL.JU, and its mayoral candidate in Quetzaltenango, Guatemala’s second
largest city. The mayoral candidate, like Guerra Sanchez, was of Mayan descent
and promised change for the city’s indigenous people who made up half the
population. As a campaign volunteer, Guerra Sanchez handed out cards and pens
to the public.
After Guerra Sanchez’s candidate won the election, Guerra Sanchez received
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two threats from members of the opposing PAN party who lived in his
neighborhood. In 1997, Guerra Sanchez was playing in a soccer tournament, and
spectators who were PAN members passed by and threatened him. In August
1997, windows on his unoccupied house were broken and graffiti signed by the
PAN was painted on the house stating, “the next one is you.” A neighbor told
Guerra Sanchez she saw two individuals vandalize his home. Guerra Sanchez
became frightened and left for the United States on September 1, 1998, leaving his
wife and children in Guatemala.
At the hearing, Guerra Sanchez conceded removability and, when asked,
stated that he would not voluntarily leave the United States. The IJ denied Guerra
Sanchez withholding of removal.1 With regard to the alleged past persecution
events, the IJ found Guerra Sanchez credible, but concluded that the incidents he
described did not constitute persecution. The IJ also found Guerra Sanchez had not
established future persecution. The IJ noted that although Mayans suffered from
discrimination, they had made recent progress as evidenced by the fact that Guerra
Sanchez’s mayoral candidate had been twice elected mayor of the country’s second
largest city and was running for president. The IJ also noted that Guerra Sanchez
1
In addition, the IJ denied Guerra Sanchez asylum because his asylum application was
untimely and denied CAT relief because there was no acquiesce by a Guatemalan official to any
harm Guerra Sanchez had suffered or might suffer. Guerra Sanchez does not challenge these
rulings in his petition for review. Thus, we address only Guerra Sanchez’s claim for withholding
of removal.
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did not have a personal relationship with the mayor, but was one of many
campaign workers. Finally, the IJ concluded that Guerra Sanchez was ineligible
for voluntary departure because he would not leave the United States voluntarily.
The BIA affirmed the IJ’s denial of withholding of removal and explained
that “[t]he few threats and vandalism [Guerra Sanchez] experienced do no[t] rise to
the level of persecution.” The BIA agreed with the IJ that “considering the low
level of [Guerra Sanchez’s] political activities, the passage of time and the
possibility of relocation within Guatemala,” Guerra Sanchez’s had not shown a
likelihood of future persecution. Further, although Guerra Sanchez had not sought
it, the BIA also granted voluntary departure and ordered Guerra Sanchez to depart
within 60 days of the order or risk removal and civil penalties. This petition for
review followed.
II. DISCUSSION
An alien seeking withholding of removal must show that his life or freedom
would be threatened because of the alien’s race, religion, nationality, membership
in a particular social group, or political opinion. INA § 241(b)(3)(A), 8 U.S.C.
§ 1231(b)(3)(A); Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir.
2003). In other words, the alien has the burden of proof to show that he “more-
likely-than-not” would be persecuted on account of a protected ground if returned
to the country in question. See id. To establish eligibility, the alien must show
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either that he suffered past persecution or that he has a well-founded fear of future
persecution. See 8 C.F.R. § 208.16(b)(1)-(2); Mendoza, 327 F.3d at 1287.
Although the INA does not define persecution, we have described
persecution as an “extreme concept, requiring more than a few isolated incidents of
verbal harassment or intimidation.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226,
1231 (11th Cir. 2005) (quotation marks omitted). Menacing telephone calls and
verbal threats, without more, do not amount to persecution. Id.
Here, substantial evidence supports the finding that the two incidents did not
constitute persecution.2 One incident consisted of verbal intimidation and the other
vandalism of Guerra Sanchez’s property coupled with a vague warning in graffiti.
Neither incidents involved any physical harm or attempted physical harm. We
cannot say the record compels a conclusion that Guerra Sanchez suffered past
persecution.
Substantial evidence also supports the finding as to likelihood of future
persecution. The two past incidents occurred because Guerra Sanchez provided
admittedly low level support to a mayoral candidate ten years ago. The PAN
2
We review only the BIA’s decision, except where the BIA’s decision explicitly relies
upon the IJ’s reasoning, in which case we review both the IJ’s and the BIA’s decisions. See Al
Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). We review a factual determination
that an alien is statutorily ineligible for withholding of removal under the substantial evidence
test. Id. at 1283-84. Under the substantial evidence standard, “we must find that the record not
only supports reversal, but compels it.” Mendoza, 327 F.3d at 1287.
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neighbors who threatened him have not contacted him or his family since 1998.
Although the 2004 Country Report indicates that indigenous people still
experience discrimination in Guatemala, there is no mention of politically
motivated attacks by the PAN on members of the XEL.JU or on Mayan campaign
workers or political activists. Moreover, Guerra Sanchez did not show that he
faced persecution even if he relocated to another part of the country. In light of
these facts, the record does not compel a finding that Guerra Sanchez would, more
likely than not, be persecuted if returned to Guatemala.
Although the denial of withholding of removal is supported by substantial
evidence, the BIA’s sua sponte grant of voluntary departure is not supported by the
record.3 The Attorney General may grant voluntary departure to aliens who meet
certain eligibility requirements, one of which is that the alien must show “by clear
and convincing evidence that [he] has the means to depart the United States and
intends to do so.” INA § 240B(b)(1)(D); 8 U.S.C. § 1229c(b)(1)(D). The only
evidence regarding Guerra Sanchez’s intent to depart the United States is his
hearing testimony that he would not leave voluntarily. Thus, there is no showing
3
Although we lack jurisdiction to review the discretionary decision whether to grant
voluntary departure, INA § 242(a)(2)(B); 8 U.S.C. § 1252(a)(2)(B), we retain jurisdiction to
review non-discretionary legal determinations as to statutory eligibility for discretionary relief.
Gonzalez-Oropeza v. U.S. Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003). We review the
BIA’s factual findings for substantial evidence. Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27
(11th Cir. 2004) (en banc). However, our review is limited to only whether the petitioner meets
the eligibility requirements. Brooks v. Ashcroft, 283 F.3d 1268, 1272 (11th Cir. 2002).
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that Guerra Sanchez has the means to depart the United States and intends to do so.
Because Guerra Sanchez is not eligible for voluntary departure, we grant Guerra
Sanchez’s petition as to this issue, and reverse the BIA’s grant of voluntary
departure.4
PETITION DENIED IN PART, GRANTED IN PART.
4
We reject the government’s argument that Guerra Sanchez lacks standing to challenge
the BIA’s voluntary departure ruling.
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