Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 11-1972
ALFREDO GREGORIO HERNANDEZ,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Torruella and Thompson, Circuit Judges.
Brian Monahan and Ross & Associates, on brief for petitioner.
Tony West, Assistant Attorney General, Civil Division,
Department of Justice, Keith I. McManus, Senior Litigation Counsel,
and Brendan P. Hogan, Office of Immigration Litigation, on brief
for respondent.
September 26, 2012
LYNCH, Chief Judge. Alfredo Gregorio Hernandez petitions
for review of a decision by the Board of Immigration Appeals (BIA),
dated July 25, 2011, which dismissed his appeal of the decision of
an immigration judge (IJ) denying his application for asylum,
withholding of removal, and protection from removal under the
Convention Against Torture (CAT). We deny the petition.
Hernandez is a 33-year-old native and citizen of
Guatemala, and a member of the indigenous Mayan ethnic group.
Hernandez entered the United States without inspection on November
25, 1992, and timely applied for asylum within one year of his
arrival. Hernandez interviewed with an asylum officer on March 15,
2006. The Department of Homeland Security then filed a Notice to
Appear with the immigration court on July 11, 2006, to begin
removal proceedings. Hernandez was charged with removability as an
alien present in the United States without having been admitted or
paroled. See 8 U.S.C. § 1182(a)(6)(A)(i). On September 11, 2007,
Hernandez admitted the allegations in the Notice to Appear and
conceded removability, but he applied for relief from removal based
on claims for asylum, withholding of removal, and protection under
the CAT. In the alternative, he requested voluntary departure.
On March 9, 2009, the IJ held a merits hearing on
Hernandez's claims, at which Hernandez was the only witness.
Hernandez testified that he left Guatemala for the United States in
1992, when he was fourteen years old, because of the then-ongoing
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Guatemalan civil war, which lasted from 1960 to 1996. He stated
that he had refused to join either the government army or the
guerrilla army, and that the guerrillas had on one occasion
threatened him with death if he helped the government.1 Hernandez
also testified that neither he nor any of his family members had
been harmed by the guerrillas. He admitted that another reason why
he came to the United States was because of poverty. Hernandez
expressed his fear that former members of the guerrilla army and/or
"clandestine" groups of former government soldiers would harm him
if he returned to Guatemala in retribution for his refusal to
participate in the war.
The IJ continued the hearing so that Hernandez could
supplement the record with an affidavit in support of his claims
and with records relating to his criminal arrests and convictions.
The hearing resumed on October 8, 2009. In Hernandez's affidavit
submitted for this hearing, he stated for the first time that he
feared that the "clandestine" groups would target him because he is
Mayan. After argument on October 9, the IJ rendered an oral
decision.
The IJ found that Hernandez's testimony was credible.
However, he also found that Hernandez had not met his burden of
1
In his live testimony before the IJ, Hernandez stated that
the guerrillas threatened him and other children with death if they
aided the government forces. In his later affidavit, Hernandez
seemed to expand this story to include a claim that the guerrillas
also threatened him with death if he did not join them.
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demonstrating that he was a "refugee," which is the threshold
showing needed to obtain asylum under the Immigration and
Nationality Act. See 8 U.S.C. § 1158(b)(1).2 The IJ concluded
that Hernandez's experiences in the civil war did not rise to the
level of past persecution. He also found that, while Hernandez had
a genuine subjective fear of future persecution, he did not have an
objective well-founded fear, for several reasons. These included
that the civil war had ended in 1996, and that Hernandez's family
in Guatemala -- including his mother, two brothers, and a sister --
had not been harmed in the years since. Accordingly, the IJ denied
Hernandez's applications for asylum and withholding of removal.
The IJ also denied his claim for protection under the CAT, finding
that Hernandez had not presented evidence showing that he was more
likely than not to be subjected to torture in Guatemala at the
behest of or with the acquiescence of the government. The IJ
granted Hernandez's request for voluntary departure.
Hernandez appealed the IJ's decision to the BIA, which
dismissed the appeal on July 25, 2011. The BIA affirmed the IJ's
2
A refugee is a person who "is unable or unwilling to avail
himself . . . of the protection of" his 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." 8 U.S.C. § 1101(a)(42). If the
alien can prove past persecution based on one of these five
grounds, he is entitled to a rebuttable presumption of future
persecution. Orelien v. Gonzalez, 467 F.3d 67, 71 (1st Cir. 2006).
If he cannot show past persecution, he may still prove eligibility
by showing that he has a well-founded fear of future persecution
that is both subjectively genuine and objectively reasonable. Id.
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determination that Hernandez had failed to meet his burden of
proving that he was a refugee. It rejected Hernandez's argument,
raised for the first time before the BIA, that he was entitled to
asylum based on a pattern and practice of persecution of indigenous
Mayans in Guatemala. This claim, the BIA found, was not supported
by the record below, nor was it supported by the State Department
Country Reports for Guatemala, on which Hernandez heavily relied.
While the Country Reports confirmed widespread discrimination
against Mayans in Guatemala, they did not depict a current pattern
of persecution. The BIA found that Hernandez could not show an
objective well-founded fear of future persecution based on his
Mayan heritage. Finally, the BIA affirmed the IJ's decision that
Hernandez had failed to carry his burden under the CAT, as his
generalized assertions about human rights abuses in Guatemala did
not establish that Hernandez was more likely than not to be
tortured if he returned.
On October 23, 2011, Hernandez petitioned this court for
review of the BIA's decision. Where, as here, the BIA adopts and
affirms part of the IJ's ruling and further justifies the IJ's
conclusions, we review both the BIA's and the IJ's opinions. Nako
v. Holder, 611 F.3d 45, 48 (1st Cir. 2010). We review the BIA's
and IJ's findings of fact under the "substantial evidence"
standard, based on the administrative record as a whole. Morgan v.
Holder, 634 F.3d 53, 56-57 (1st Cir. 2011). We will not reject a
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factual finding "unless any reasonable adjudicator would be
compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B).
We review conclusions of law de novo, although with some deference
to the BIA's interpretations of the statutes it administers.
McKenzie-Francisco v. Holder, 662 F.3d 584, 586 (1st Cir. 2011).
Substantial evidence supports the BIA's and IJ's
determinations that Hernandez failed to establish past persecution.
Hernandez did not offer evidence that he had been physically
injured, detained, or otherwise directly harmed by guerrilla or
government forces before his departure from Guatemala. While
threats alone may constitute persecution in "a small category of
cases," Tobon-Marin v. Mukasey, 512 F.3d 28, 32 (1st Cir. 2008)
(quoting Butt v. Keisler, 506 F.3d 86, 91 (1st Cir. 2007)), the
single threat that Hernandez received from the guerrillas does not
bring his case into that category. See, e.g., Lumataw v. Holder,
582 F.3d 78, 91 (1st Cir. 2009) (holding that a single death threat
by an armed assailant did not compel a finding of past persecution
where it was a one-time incident unaccompanied by physical harm).
Hernandez does not seriously contest this point in his petition for
review, focusing instead on his claim of a well-founded fear of
future persecution based on his Mayan ethnicity.
When an asylum applicant asserts a fear of future
persecution, he may establish eligibility on the grounds that
"there is a pattern or practice in his . . . country of nationality
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. . . of persecution of a group of persons similarly situated to
the applicant on account of" the five protected asylum categories.
8 C.F.R. § 1208.13(b)(2)(iii)(A). However, "[o]ur case law has
narrowly defined 'pattern or practice' to encompass only the
systematic or pervasive persecution of a particular group based on
a protected ground, rather than generalized civil conflict or a
pattern of discrimination." Sugiarto v. Holder, 586 F.3d 90, 97
(1st Cir. 2009).
We reject Hernandez's first argument that the BIA
evaluated his claim of a pattern or practice of persecution under
an incorrect legal standard. Mischaracterizing the BIA's holding,
Hernandez argues that the BIA improperly required him to show that
he or his family had suffered direct harm in order to establish a
pattern or practice. Not so. Rather, evidence that Hernandez's
family members, who are themselves Mayan, had remained in Guatemala
without incident was one factor supporting the BIA's conclusion
that Hernandez did not face an objectively reasonable fear of
future persecution. Similarly, the lack of harm to his family also
weighs against Hernandez's claim that he will be targeted because
of his refusal to participate in the war, since he testified that
none of his other family members participated either. We have
previously approved the BIA's reliance on such evidence under
similar circumstances. See, e.g., Decky v. Holder, 587 F.3d 104,
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112 (1st Cir. 2009); Limani v. Mukasey, 538 F.3d 25, 32 (1st Cir.
2008).
We reject Hernandez's second argument that the record
compels a finding that he has an objectively reasonable fear of
persecution based on his Mayan heritage. Far from it. As an
initial matter, many of the sources Hernandez cites in his petition
to this court regarding the treatment of indigenous Guatemalans
were not in the administrative record, and we may not consider
them.3 While Hernandez referred to some of these materials in his
brief before the BIA, he did not submit them as evidence. In
reviewing orders of removal, we consider only the evidence that was
properly before the agency. See 8 U.S.C. § 1252(b)(4)(A).
Hernandez relies mainly on the 2007 and 2008 State
Department Country Reports on Guatemala, which show that Mayans
suffer poverty and discrimination in that country. However, the
Country Reports do not reveal a pattern or practice of persecution
of Mayans. As the BIA noted, a showing of persecution requires
more than a showing of discrimination. See Kadri v. Mukasey, 543
F.3d 16, 21 (1st Cir. 2008). While the Country Reports in the
administrative record discuss widespread violence in Guatemala,
3
These sources include: Report of the Commission for
Historical Clarification, Guatemala: Memory of Silence; Human
Rights Watch, World Report 2011: Guatemala; Guatemala Human Rights
Commission/USA Human Rights Update June 1, 2004; and Guatemala
Human Rights Commission/USA Human Rights Review January-September
2007.
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they do not state that the violence is directed specifically
against Mayans. In fact, the Reports do not show that the
"clandestine" groups to which Hernandez refers target any
particular population. The 2007 Report contains an account of
three such groups operating in a Mayan town, but it is not
Hernandez's town of origin, and the Report does not indicate the
ethnicities of the victims in that town. Moreover, although
"country conditions reports are deemed generally authoritative in
immigration cases, the contents of such reports do not necessarily
. . . supplant the need for particularized evidence in particular
cases." Amouri v. Holder, 572 F.3d 29, 35 (1st Cir. 2009).
We also reject Hernandez's assertion that the BIA failed
to consider his pattern or practice claim. Again, the record is
clear that it did. The BIA made specific reference to the Country
Reports cited by Hernandez and concluded that the evidence
demonstrated mere discrimination against Mayans, not rising to the
level of a pattern or practice of persecution. This is a finding
of fact to which we afford deference.4 See Decky, 587 F.3d at 110
4
Where the BIA referred to the absence of a protected group,
it was not failing to recognize the racial status of Mayans.
Rather, it was addressing a separate ground that Hernandez had
argued before the IJ: namely, that Hernandez would face persecution
as a member of a group consisting of persons who are perceived as
wealthy upon returning from the United States. As Hernandez has
not pursued that ground in his petition to this court, we do not
resolve it. The BIA was correct, however, to note that this
Circuit's precedent does not recognize perceived wealth as a
statutorily protected social group. See, e.g., López-Castro v.
Holder, 577 F.3d 49, 54 (1st Cir. 2009).
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n.4. In short, there was substantial evidence to support the BIA's
determination that Hernandez failed to carry his burden of showing
that he had a well-founded fear of future persecution based on a
pattern or practice of persecution of Mayans.
An applicant who fails to meet his burden of proof for
asylum has also failed to meet his burden for withholding of
removal. To make out the latter claim, the applicant must
establish a "clear probability" of persecution, which is a more
stringent standard than the "well-founded fear" required for
asylum. Ang v. Gonzales, 430 F.3d 50, 58 (1st Cir. 2005).
The BIA's and IJ's decisions to deny relief under the CAT
were also supported by substantial evidence. In order to obtain
protection from removal under the CAT, an applicant must show that
he will "more likely than not" be tortured if returned to his
country of origin. Orelien v. Gonzalez, 467 F.3d 67, 73 (1st Cir.
2006). In order to qualify as torture, the treatment must be "an
extreme form of cruel and inhuman treatment," 8 C.F.R.
§ 1208.18(a)(2), and it must be 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," id. § 1208.18(a)(1).
Torture may be either physical or mental. Id.
Hernandez offered no evidence that he would be singled
out for torture upon his return to Guatemala. The Country Reports
on which he relies also do not establish that Mayans are targeted
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for torture. The BIA considered Hernandez's allegations about
human rights abuses in Guatemala and concluded that, although they
were relevant, these general statements were not enough to satisfy
the "more likely than not" standard. See Mendez-Barrera v. Holder,
602 F.3d 21, 28 (1st Cir. 2010) ("Although [country conditions]
reports are sometimes helpful to an alien's claim [under the CAT],
their generic nature is such that they are rarely dispositive.").
Neither the BIA nor the IJ impermissibly required Hernandez to show
that he would face physical harm in Guatemala, as he alleges in his
petition to this court. As such, the BIA and IJ supportably
rejected Hernandez's claim for protection under the CAT.
Finally, Hernandez argues for the first time before this
court that his hearings before the IJ and the BIA violated his due
process rights because they were not decided on a complete record.
Hernandez asserts that the IJ erroneously failed to "require" his
prior counsel to submit "all evidence available to him" in support
of Hernandez's application for asylum. On a petition for review,
we will not address a claim if the applicant failed to exhaust it
before the agency. See 8 U.S.C. § 1252(d)(1); Silva v. Gonzales,
463 F.3d 68, 72 (1st Cir. 2006). This argument was available to
Hernandez in his appeal to the BIA, yet he did not raise it. We do
not consider his argument here.
The petition is denied.
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