Lobo v. Holder

United States Court of Appeals
For the First Circuit

No. 11-1640

CARLOS ALBERTO LOBO, DARWIN ALBERTO LOBO,
CIRIA JIMENA LOBO, and KAREN VANESSA LOBO,

Petitioners,

v.

ERIC H. HOLDER, JR.,
ATTORNEY GENERAL OF THE UNITED STATES,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS

Before

Torruella, Lipez, and Howard,
Circuit Judges.

Harvey J. Bazile and Bazile & Associates, on brief for
petitioners.
Nancy K. Canter, Attorney, Civil Division, Office of
Immigration Litigation, Tony West, Assistant Attorney General,
Civil Division, and Shelley R. Goad, Assistant Director, on brief
for respondent.

July 6, 2012
 TORRUELLA, Circuit Judge. Petitioners Carlos Alberto

Lobo ("Lobo") and his children (collectively, "Petitioners" or

"Lobos")1 seek review of a final order of removal issued by the

Board of Immigration Appeals ("BIA") denying their applications for

asylum, withholding of removal, and protection under Article III of

the United Nations Convention Against Torture ("CAT"). After

careful consideration, we deny their petition for review.

I. Background

Petitioners are natives and citizens of Honduras who

entered the United States without inspection on approximately

October 27, 1991. We first turn our eyes to those events that

transpired prior to the Lobos' border crossing, which are derived

from Lobo's testimony before the immigration judge ("IJ").

Lobo and his family lived in San Pedro Sula, Honduras,

where Lobo worked as a tax analyst and, following a promotion, as

chief of the commercial department for the city. Lobo lived and

worked there for approximately twelve to thirteen years. Lobo's

job responsibilities were equivalent to those of a tax collector:

he was in charge of ensuring that commercial establishments and

merchants in the Municipality of San Pedro Sula properly paid their

taxes on time. If a business was unable to pay its taxes, it fell

to Lobo's department to arrange a payment plan for the company to

assure it would not default on its payments.

1
According to the record, Lobo's children are now of adult age.

-2-
 Lobo's control and monitoring of commercial

establishments' tax payments proved to be a demanding job. As tax

evasion's shadow cast ever wider over San Pedro Sula, Lobo commonly

had the responsibility of fining or closing businesses that failed

to meet their tax obligations. Perhaps true to form, one of the

businesses that decided to take a gamble with its tax obligations

was a casino operating in the Municipality. By 1989, the casino

had failed to pay its taxes for the third time in three years, the

overdue payments of which totaled approximately three and a half

million U.S. dollars. With potential fraud flags flying,

investigations commenced, with Lobo leading the investigatory pack.

Lobo's probing uncovered the following details: the

casino was managed by a woman closely associated with the

Municipality,2 and the casino was not being required to pay taxes

due to continuing fraud within the relevant hierarchical

governmental structure. Lobo prepared a report of his findings and

conclusions and distributed it to the casino and various government

entities, including the Municipality's Audit Department, Accounting

Department, and Treasury Department.

The report was, to put it lightly, not well-received.

Soon after Lobo's report went public, Lobo began to receive

threats. In July of 1990, his boss, José Dennis Lagos ("Lagos"),

2
The specifics concerning the woman's relation to the
Municipality are unclear from the record.

-3-
began pressuring Lobo to make the report disappear by threatening

to make his job disappear. Lobo declined Lagos's request. That

same month, Lobo began to receive threats at his home.

Lobo testified that he received approximately five or six

threats in total between July 1990 and September 1991,3 and that

sometime during the course of these threats, Lobo was fired from

his job. Lobo described his threats as follows:4 two threats from

Lagos; one threat from an attorney sent by Lagos; another threat

from a woman (whose relation to Lobo or the Municipality is unclear

from the record) who came to his house and aimed "a gun to [his]

chest" and demanded money; and another from persons (whom Lobo

believed were sent by Lagos) who came to his house and threatened

Lobo and his family. Lobo noted that the threats to his family

were "not just one occasion; it was various times" before he left

Honduras. Lobo additionally testified that, after being fired from

his job, he continued to receive threats at his home, whether over

the phone or in person, and that immediately before he departed for

3
The majority of the threats appear from the record to have
occurred sometime in or around July 1990. When questioned as to
why Lobo and his family had received threats as late as September
1991, Lobo stated "there was a reporter that was making a report
regarding blackmail and bad administrations of the corporation";
when that reporter "disappeared," Lobo became targeted again as
officials were afraid he might talk about his investigatory
findings. Additional specifics concerning the reporter and his
disappearance are not in the record.
4
The specific timeline of these events is not clear from the
record.

-4-
the United States, he received a threat from "an agent that worked

with the dean"5 who came to his house with a firearm.6 Lobo stated

that he never reported these warnings for fear that those

responsible for the confrontations might be associated with the

authorities.

By late September 1991, Lobo had reached his breaking

point. Lobo left Honduras along with his three children, crossing

the Mexican border and entering the United States without

inspection on or about October 27, 1991.

On May 21, 1992, Lobo filed an affirmative asylum

application with the Immigration and Naturalization Service

("INS"), predecessor to the United States Citizenship and

Immigration Naturalization Service ("USCIS"). In 2006, an asylum

officer at USCIS interviewed Lobo about his case. The officer

subsequently referred his application to the Immigration Court.

On September 7, 2007, the Department of Homeland Security

("DHS") commenced removal proceedings against Petitioners, issuing

a "Notice to Appear" (the "Notice") to Lobo and his three children.

5
There is no clear explanation in the record as to the dean's
identity or the relevance of this position.
6
Lobo testified that sometime during the July 1990-September 1991
period a man came to his house, threatening to kill him and his
family unless he signed a document promising that Lobo would not
reveal any of the information he had uncovered during his
investigation. It is not clear from the record whether this man is
the same one who came to his house with the firearm immediately
prior to Lobo's U.S. departure, or whether he was a different
harasser.

-5-
The DHS charged Lobo and his children under § 212(a)(6)(A)(i) of

the Immigration and Nationality Act as aliens present in the United

States without having been admitted or paroled following

inspection. The Notice stated that Lobo and his children, citizens

of Honduras, had illegally entered the United States via Texas on

approximately October 27, 1991.

On January 15, 2008, Petitioners appeared before the IJ.

At the hearing, Petitioners admitted all facts, conceded

removability, and acknowledged they would be seeking asylum,

withholding of removal, and protection under CAT.7 Lobo also

testified at the hearing, recounting the aforementioned events

underlying his reasons for fearing return to Honduras.

On April 28, 2009, the IJ, having considered Petitioners'

applications and Lobo's testimony, denied their applications and

ordered their removal. The IJ concluded that Lobo had failed to

establish past persecution or a well-founded fear of future

persecution to qualify for asylum. Specifically, the IJ determined

that Lobo's evidence did not rise to a level sufficient to

constitute persecution. The IJ stated that no evidence showed the

threats Lobo received were likely to be carried out; no harm in

fact befell any of the Lobos during the over year-long threat

period; and no evidence showed that others in Honduras had been

7
Lobo was the lead respondent. His children's claims were
derivative of his asylum application. See 8 U.S.C.
§ 1158(b)(3)(A).

-6-
harmed for failure to remain quiet in the face of corrupt business

activities -- with the exception of Lobo's reference to a missing

reporter, which the IJ deemed too lacking in proof to be of any

weight in Lobo's case. Additionally, the IJ noted that Lobo had

not been active in Honduran politics prior to leaving, and his five

brothers and mother had remained living in Honduras unharmed,

despite Lobo's contention that individuals, from time to time,

asked as to his whereabouts (which Lobo asserted served as proof of

an ongoing risk to his life and safety).

As to the withholding of removal claim, the IJ held that

because Lobo could not establish a claim for asylum, he could not

meet the higher standard of proof needed to make out a claim for

withholding of removal; the IJ thus denied this claim as well. The

IJ similarly denied Lobo's request for CAT relief, finding that

Lobo had failed to offer any proof that he risked facing torture

should he return to Honduras. Lastly, the IJ denied the remaining

Lobos' applications, stating that because "each of the co-

respondents is older than [twenty-one]," they "no longer ha[ve] a

viable claim for derivative asylum in any event."

-7-
 On May 9, 2011, the BIA affirmed the IJ's decision

dismissing Petitioners' appeal.8 Lobo then timely filed a petition

for review with this court.

II. Discussion

We begin with the applicable standard of review. Because

the BIA here offered its own elucidations upon the IJ's reasoning,

we review both decisions "as a unit." Arévalo-Girón v. Holder, 667

F.3d 79, 81 (1st Cir. 2012). Our review requires us to adopt both

a deferential and de novo stance. Id. at 81-82. On the one hand,

we apply the "substantial evidence" standard and defer to those

findings of fact that are "supported by reasonable, substantial,

and probative evidence on the record considered as a whole."

Nikijuluw v. Gonzales, 427 F.3d 115, 120 (1st Cir. 2005) (quoting

I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 (1992)) (internal

quotation marks omitted). On the other hand, we review anew all

legal conclusions, "with appropriate deference to the agency's

interpretation of the governing statute." Sok v. Mukasey, 526 F.3d

48, 53 (1st Cir. 2008). In the end, we may only set aside the

agency's determination if the "evidence points unerringly in the

opposite direction." Laurent v. Ashcroft, 359 F.3d 59, 64 (1st

Cir. 2004); see also Castillo-Díaz v. Holder, 562 F.3d 23, 26 (1st

8
The BIA expressly noted that it would "not reach the [IJ's]
additional determination that as adult asylum applicants, the co-
respondents are ineligible to obtain derivative asylum based on
their father's asylum application."

-8-
Cir. 2009) (noting reversal of agency decision only warranted if a

"reasonable adjudicator would be compelled to conclude to the

contrary" (quoting 8 U.S.C. § 1252(b)(4)(B)) (internal quotation

marks omitted).

The evidentiary burden here lies with Lobo to show that

he is a refugee under the immigration laws. See 8 U.S.C.

§ 1158(b)(1)(B)(i); Nikijuluw, 427 F.3d at 120. To establish such

qualification for asylum, Lobo must demonstrate that he is unable

to go back to Honduras due to "[past] persecution or a well-founded

fear of [future] persecution on account of race, religion,

nationality, membership in a particular social group, or political

opinion." Hasan v. Holder, 673 F.3d 26, 30 (1st Cir. 2012)

(quoting 8 U.S.C. § 1101(a)(42)(A)) (internal quotation marks

omitted); see also Guerrero v. Holder, 667 F.3d 74, 77 (1st Cir.

2012). If a petitioner (here, Lobo) clears the past persecution

hurdle, he "creates a rebuttable presumption that a well-founded

fear of future persecution [also] endures." Guerrero, 667 F.3d at

77; 8 C.F.R. § 1208.13(b)(1).

Persecution, a term of a more elusive character due to

its lack of a specific definition under the Immigration and

Nationality Act, is better clarified by precedent. See Nikijuluw,

427 F.3d at 120 ("The Immigration and Nationality Act provides no

precise definition of 'persecution[,]'" but "[t]he case

law . . . is more informative"). We have held that the term

-9-
"'encompasses more than threats to life or freedom, but less than

mere harassment or annoyance.'" Sok, 526 F.3d at 53 (quoting

Aguilar-Solís v. I.N.S., 168 F.3d 565, 570 (1st Cir. 1999)). That

is, the totality of the harm suffered must "add up to more than

mere discomfiture, unpleasantness, harassment, or unfair

treatment." Morgan v. Holder, 634 F.3d 53, 58 (1st Cir. 2011)

(quoting Nikijuluw, 427 F.3d at 120) (internal quotation mark

omitted). Additionally, the source or administration of such harm

must trace back -- at least on some level -- to governmental action

or omission. See Jorgji v. Mukasey, 514 F.3d 53, 57 (1st Cir.

2008) (noting "the state must be the source of or at least

acquiesce in the persecution"); Harutyunyan v. Gonzales, 421 F.3d

64, 68 (1st Cir. 2005) ("[P]ersecution always implies some

connection to government action or inaction.").

Having laid the relevant legal groundwork, we turn to the

agency's determination that Lobo did not suffer past persecution.

We conclude that the agency's decision passes the substantial

evidence test.

Lobo anchors his claim of past persecution in the

approximately five (or six) incidents of threats or extortions Lobo

testified to receiving following his casino investigation in

Honduras recounted above. Threats to one's job, personal safety,

or family are without question highly unsettling and tension-

inducing. And while it is true that a showing of threats may be

-10-
sufficient to establish past persecution, "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." Gilca v. Holder, No. 11-1711, 2012

WL 1867125, at *3 (1st Cir. May 23, 2012) (quoting Ruíz v. Mukasey,

526 F.3d 31, 37 (1st Cir. 2008)) (internal quotation marks

omitted).

Here, the IJ found (with the BIA largely adopting its

findings) that Lobo's received threats did not rise to the level of

persecution because no evidence showed or suggested that such

threats ever were at risk of being carried out, and the threats

occurred over the course of an approximately year-long period, with

no harm ever befalling any of the Lobos. We have recognized that

"[h]ollow threats, . . . without more, certainly do not compel a

finding of past persecution," Gilca, 2012 WL 1867125, at *3

(quoting Ang v. Gonzales, 430 F.3d 50, 56 (1st Cir. 2005)), and

that "the absence of evidence of physical harm [may] plainly

support[] the BIA's determination that nothing tantamount to

persecution transpired." Ruíz, 526 F.3d at 37. Given the lack of

credibility or impendency to the threats at issue, including the

absence of any harm actually betiding the Lobos, the evidence does

not compel a disturbance of the agency's conclusion. See Elias-

Zacarias, 502 U.S. at 481 n.1 (stating "[t]o reverse the BIA

-11-
finding we must find that the evidence not only supports the

conclusion, but compels it") (emphasis in original).

Moreover, the IJ noted that Lobo's testimony as to such

incidents contained inconsistencies (including the nature and

number of threats actually received, and the identities of those

responsible for ordering or issuing such threats) that, while not

sufficient to warrant an adverse credibility finding, made it

difficult to fully credit his testimony or to uphold his claim

without further corroboration.9 For instance, although Lobo

testified that at least one of his received warnings occurred at

gunpoint with an accompanying threat of death or harm, the IJ found

such testimony to be inconsistent and lacking proof as to the

plausibility of its actually being effectuated. Cf. Gilca, 2012 WL

1867125, at *3 & n.2. While any such warning is indubitably

unsettling, "credible verbal death threats may fall within the

meaning of 'persecution[]' . . . only when the threats are 'so

menacing as to cause significant actual suffering or harm.'"

Vilela v. Holder, 620 F.3d 25, 29 (1st Cir. 2010) (internal

citation omitted) (quoting Bonilla v. Mukasey, 539 F.3d 72, 77 (1st

9
Additional proof that the IJ highlighted as missing from the
record but that would have been useful in assessing Lobo's claim
included evidence that he had worked for the Municipality of San
Pedro Sula, letters from his mother or siblings who had continued
to live in Honduras confirming the nature of such threats, news
articles or other documentation regarding possible investigations
into Lobo's former employer, or information concerning the alleged
missing reporter that Lobo referenced in his testimony.

-12-
Cir. 2008)). As the IJ determined and BIA echoed, the threats here

were not "sufficiently credible or imminent" to constitute

persecution under applicable case law. Ravix v. Mukasey, 552 F.3d

42, 46 (1st Cir. 2009).

Lobo's past persecution claim is deficient on another

ground. The record here is devoid of evidence showing that the

threats Lobo received were linked to a statutorily protected

ground, i.e., "race, religion, nationality, membership in a

particular social group, or political opinion." 8 U.S.C.

§ 1101(a)(42)(A). The IJ rejected Lobo's claim that he was being

targeted based on political opinion or membership in a particular

group, noting (as to the former) that Lobo was not active in

Honduran politics and had not belonged to a Honduran political

party, and (as to the latter) that Lobo had failed to specify as to

which social group he might belong -- a gap in the application that

only Lobo could fill.10 The absence of any evidence that Lobo was

targeted on the basis of a protected ground, coupled with his

failure to proffer evidence showing harm amounting to persecution,

10
We additionally note without comment the IJ's statement that
"[a]lthough the Court is not willing to supply the social group on
which [Lobo] apparently relies, the Court notes that non-criminal
informants who passed on information do not constitute a particular
social group."

-13-
serves, here, as the tolling bell for Lobo's past persecution

claim.11

In sum, the agency's determination that Lobo could not

show past persecution was supported by substantial evidence.

Whether the underlying threats are viewed in isolation or the

collective, it was well within the agency's aegis to conclude that

such acts did not amount to past persecution.

Because we affirm the agency's determination as to past

persecution, Lobo's asylum claim now rests upon whether he can

independently establish that he has a well-founded fear of future

persecution. Nikijuluw, 427 F.3d at 121; see also 8 C.F.R.

§ 208.13(b)(2). To make such a showing, Lobo must traverse two

pathways: he "must demonstrate not only that [he] harbors a genuine

fear of future persecution but also that [his] fear is objectively

reasonable." Negeya v. Gonzales, 417 F.3d 78, 82-83 (1st Cir.

2005). The IJ determined, and the BIA agreed, that while Lobo may

subjectively fear returning to Honduras, his stated fear was not

objectively reasonable.

Specifically, the IJ noted that approximately two decades

had passed since Lobo had left Honduras. Cf. Chávez-Oliva v.

11
Although Lobo did establish a link to governmental action --
as the threats at issue came from his former employer (a government
employee) or individuals acting at his employer's direction --
Lobo's past persecution claim cannot stand on this leg alone. See
e.g., 8 U.S.C. § 1101(a)(42)(A); López Pérez v. Holder, 587 F.3d
456, 462 (1st Cir. 2009).

-14-
Gonzales, 190 F. App'x 6, 12 (1st Cir. 2006) (noting that

petitioner's absence from country for over a decade "significantly

decrease[d] the likelihood that he would be harmed on account of"

an alleged statutory ground). Although Lobo testified that the

persons who threatened him still held government positions and were

presently under investigation in Honduras, the IJ and BIA noted

Lobo's failure to provide any evidence in support of this

contention, aside from unsubstantiated references to "news that

[he's] seen through the computer" and uncorroborated, out-of-court

statements from family members. We agree with the agency's

determination that this evidence -- or lack thereof -- does not

rise to the level of specific proof generally required to establish

an objectively reasonable fear of future persecution. See, e.g.,

Castillo-Díaz, 562 F.3d at 26 (stating "an alien can demonstrate

directly her well-founded fear of future persecution [where no

rebuttable presumption is established] through an offer of

'specific proof'" (quoting Romilus v. Ashcroft, 385 F.3d 1, 6 (1st

Cir. 2004))); see also Mukamusoni v. Ashcroft, 390 F.3d 110, 120

(1st Cir. 2004) (noting that "[t]he subjective test [of

establishing a well-founded fear of future persecution] requires

the applicant to prove his fear is genuine, while the objective

test requires showing by credible and specific evidence that this

fear is reasonable").

-15-
 Moreover, the IJ reasoned, and the BIA agreed, that the

fact that Lobo's mother and siblings had continued to live in

Honduras following Lobo's departure, without suffering any harm

aside from alleged inquiries from others as to Lobo's current

whereabouts, weighed against a finding of persecution sufficient to

qualify for asylum. We have often echoed that "[t]he fact that

close relatives continue to live peacefully in the alien's homeland

undercuts the alien's claim that persecution awaits [his] return."

Budiono v. Mukasey, 548 F.3d 44, 50 (1st Cir. 2008) (quoting Ly v.

Mukasey, 524 F.3d 126, 133 (1st Cir. 2008)); see also Decky v.

Holder, 587 F.3d 104, 112-13 (1st Cir. 2009); López Pérez, 587 F.3d

at 463; Aguilar-Solís, 168 F.3d at 573. Although by no means an

outcome-determinative factor, we repeat that chorus here where no

evidence compels us to find, contrary to the agency, that Lobo has

a well-founded fear of future persecution. We thus affirm the

agency's rejection of Lobo's claim of a well-founded fear of future

persecution, finding it to be supported by substantial evidence.

Lobo's remaining claims fare no better. Turning first to

his withholding of removal claim, we note that a "petitioner's

quest for withholding of removal . . . carries with it a more

stringent burden of proof than does a counterpart effort to obtain

asylum." Orelien v. Gonzales, 467 F.3d 67, 73 (1st Cir. 2006); see

also Ang, 430 F.3d at 58 ("Withholding of removal requires that an

alien establish a clear probability of persecution, rather than

-16-
merely a well-founded fear of persecution."). Thus, if a

petitioner cannot meet the lesser burden for establishing

eligibility for asylum, then, sure as night follows day, so too

will it hold true that he will be unable to satisfy the higher

standard for withholding of removal. Zheng v. Gonzales, 416 F.3d

97, 101 n.3 (1st Cir. 2005); see also Bocova v. Gonzales, 412 F.3d

257, 264 (1st Cir. 2005). Because we uphold the agency's denial of

Lobo's asylum claim, his withholding of removal claim thus falls by

the wayside.

Lastly, addressing Lobo's CAT claim, we find no grounds

on which to quibble with the agency's denial-of-redress

determination. In brief, under the CAT, the United States may not

return an alien to his country of nationality if "there are

substantial grounds for believing [he] would be in danger of being

subjected to torture." Pub. L. No. 105-277, § 2242, 112 Stat.

2681, 2681-822 (1998). The petitioner (here, Lobo) must shoulder

the burden of establishing that it is more likely than not that he

will be tortured on returning to his homeland. See Hasan, 673 F.3d

at 35; 8 C.F.R. § 208.16(c)(2). Applicable regulation defines

torture as "any act by which severe pain or suffering, whether

physical or mental, is intentionally inflicted on a person . . . by

or at the instigation of or with the consent or acquiescence of a

public official or other person acting in an official capacity."

8 C.F.R. § 208.18(a)(1).

-17-
 Both the IJ and BIA found that Lobo offered no evidence

showing he had been tortured or even physically harmed when living

in Honduras. The most Lobo did proffer -- the unsupported posit

that his boss was directed by the Municipality of San Pedro Sula to

send imminent death and physical harm threats to Lobo -- does not

show that Lobo "more likely than not" will be tortured by the

government on returning to Honduras. See Ang, 430 F.3d at 58

(noting "vague threats" by political adversaries did not rise to

the level of torture); see also Orelien, 467 F.3d at 73 (rejecting

petitioner's CAT claim on grounds that he "proffered no evidence of

physical harm directed against him while" in his home country, nor

did he show evidence, "either direct or circumstantial, that he

will be tortured at the hands of the government" should he return).

In the absence of any evidence supporting Lobo's claim that

government-sanctioned torture more likely than not awaits him on

his return to Honduras, we must affirm the agency's refusal of

relief under the CAT.12

III. Conclusion

With no remaining claims before us, our review comes to

an end. For the reasons expounded above, we deny Lobo's petition

for judicial review.

12
Both the IJ and BIA determined that the remaining Lobos' claims
for withholding of removal and CAT protection, derivative of their
father's claims (which were denied), likewise failed. We see no
evidence compelling us to disturb the BIA and IJ's conclusions.

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