NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 6 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OSCAR EDUARDO ALONZO CAYAX; No. 12-71293
LEONEL EDUARDO ALONZO ZUNIGA,
Agency Nos. A070-916-087
Petitioners, A096-152-782
A096-152-781
v. A095-309-761
JEFFERSON B. SESSIONS III, Attorney
General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted September 14, 2017
San Francisco, California
Before: SILER,** TALLMAN, and BEA, Circuit Judges.
Petitioner Alonzo Cayax, a native and citizen of Guatemala, petitions for
review of the Board of Immigration Appeals’ (“BIA”) denial of his applications for
asylum, withholding of removal, and protection under Article III of the Convention
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Eugene E. Siler, United States Circuit Judge for the
Sixth Circuit, sitting by designation.
Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252(a), and
deny the petition.
The Immigration Judge (“IJ”) denied Petitioner’s applications. The IJ found
Petitioner was credible, but that the single instance of harm in the record—which
occurred in 1978, because of his role in the anti-government Partido Guatemalteco
de los Trabajadores (“PGT”)—did not rise to the level of past persecution. Neither
had Petitioner shown a well-founded fear of future persecution or likelihood of
torture upon removal.
On appeal, the BIA assumed the 1978 incident rose to the level of past
persecution, raising a rebuttable presumption of a well-founded fear of future
persecution. See Gonzalez-Hernandez v. Ashcroft, 336 F.3d 995, 997 (9th Cir.
2003) (citing 8 C.F.R. § 208.13(b)(1)(i)). The BIA determined that the
government had rebutted this presumption by showing a fundamental change of
circumstances in Guatemala, see id., and dismissed Petitioner’s appeal. Substantial
evidence supports the BIA’s decision. See id. at 998 (“The BIA’s decision [that
Petitioner does not qualify for asylum] need only be supported by substantial
evidence.”).
The BIA relied on the following evidence of changed country conditions:
(1) U.S. Department of State reports on the conditions in Guatemala since the
Guatemalan civil war ended in 1996; (2) Petitioner’s testimony that “he does not
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even know whether the [PGT] still exists;” and (3) Petitioner’s several safe return
trips to Guatemala after 1978. Petitioner argues this evidence is insufficient to
rebut the presumption of a well-founded fear of persecution because the reports are
“inconclusive with respect to petitioner’s specific circumstances.” We disagree.
Based on the evidence before it, the BIA reasonably concluded that
individuals in Petitioner’s situation are no longer persecuted based on their past
political activism during the Guatemalan civil war. See id. at 1000 (“[W]here the
BIA rationally construes an ambiguous or somewhat contradictory country report
and provides an ‘individualized analysis of how changed conditions will affect the
specific petitioner’s situation,’ substantial evidence will support the agency
determination.” (citation omitted)). This Court may not second-guess the BIA’s
interpretation of the country reports and how they will affect Petitioner’s situation.
See id. (“[T]he agency, not a court of appeals, must construe the country report and
determine if country conditions have changed such that the applicant no longer has
a well-founded fear of persecution.”). The expert declaration Petitioner offered
does not compel a different conclusion on this record.
Petitioner also claims the BIA impermissibly shifted the burden to Petitioner
to show he had a well-founded fear of persecution. But because the BIA properly
concluded the government had met its burden, this argument is without merit. See
Sowe v. Mukasey, 538 F.3d 1281, 1286 (9th Cir. 2008) (dismissing same argument
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because “[t]he BIA did not require [Petitioner] to prove that country conditions had
not changed[,]” but rather determined “the government had succeeded in rebutting
any showing of persecution”).
Neither did the BIA err in rejecting Petitioner’s independent basis for
asylum—fear of future persecution based on his union activities in California. As
the BIA observed, there was no specific evidence that individuals involved in
unions in the United States are targeted in Guatemala, or that Petitioner would
become involved in union or political activities upon his return to Guatemala. The
BIA thus properly concluded that Petitioner had not shown his fear was objectively
reasonable. Duarte de Guinac v. INS, 179 F.3d 1156, 1159 (9th Cir. 1999) (“An
alien’s well-founded fear of persecution must be both subjectively genuine and
objectively reasonable.” (citation omitted)).
Because the BIA’s asylum decision is supported by substantial evidence,
Petitioner’s withholding of removal claim necessarily fails. See Sowe, 538 F.3d at
1288 (“When the government rebuts an applicant’s well-founded fear of future
persecution, it defeats the applicant’s asylum claim, and his or her claim for
withholding of removal” (citation omitted)). Substantial evidence also supports the
BIA’s determination that Petitioner is ineligible for CAT protection, as Petitioner
did not establish “it is more likely than not” he would be tortured by or with the
consent of the government if returned to Guatemala. See 8 C.F.R. § 1208.16(c)(2);
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see also Wakkary v. Holder, 558 F.3d 1049, 1067–68 (9th Cir. 2009) (petitioner
must demonstrate “it is ‘more likely than not’ that a government official or person
acting in an official capacity would torture him or aid or acquiesce in his torture by
others” (citations omitted)).
PETITION DENIED.
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