NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0200n.06
09-3298
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SILVIA VERONICA MENDEZ-CORONADO, FILED
KEVIN JOSUE PEREZ-MENDEZ, HECTOR Mar 30, 2010
ODILMAR PEREZ, LEONARD GREEN, Clerk
Petitioners,
On Petition for Review from
the Board of Immigration
v. Appeals
ERIC H. HOLDER, JR., Attorney General,
Respondent.
/
Before: GUY, COLE, and SUTTON, Circuit Judges.
RALPH B. GUY, JR., Circuit Judge. Petitioners, all natives and citizens of
Guatemala, seek review of the BIA’s final order of removal denying the application of Silvia
Mendez-Coronado for relief, as well as the derivative applications of her husband Hector
Odilmar Perez and their minor son Kevin Josue Perez-Mendez.1 Petitioners argue that
substantial evidence does not support the BIA’s determination that Mendez-Coronado failed
to establish grounds for withholding of removal or relief under the Convention Against
1
A younger child, Anthony Perez-Mendez, is a citizen of the United States.
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Torture (CAT). After review of the record, we deny the petition for review.
I.
Silvia Mendez-Coronado, the lead petitioner, was born in Guatemala on January 4,
1978; married Hector Perez on August 2, 1996; and entered the United States illegally in
October 1998. Mendez-Coronado stayed in California, where her mother and several
siblings lived, for approximately four months before moving with her husband and son to
Ohio. On October 28, 2002, four years after entering the United States, Mendez-Coronado
filed an application for asylum stating that she left Guatemala because guerrillas had
attempted to recruit her and threatened her when she refused to join them.2
In November 2003, after Mendez-Coronado was interviewed, petitioners were issued
Notices to Appear charging them with removability under 8 U.S.C. § 1182(a)(6)(A)(i).
Petitioners conceded removability before an Immigration Judge (IJ), as all three had entered
the United States illegally. Seeking relief from removal, Mendez-Coronado renewed her
request for asylum and sought withholding of removal and relief under the CAT. Petitioners
also applied, in the alternative, for voluntary departure.
The only witness at the merits hearing held in November 2007, Mendez-Coronado
testified that in 1998 some guerillas came to her town and tried to recruit her and several
other young women to cook and clean for them. When the women refused, the guerillas
threatened to return and take them by force. Afraid, Mendez-Coronado restricted her
2
Mendez-Coronado testified that she did not apply for asylum sooner because she was afraid of
being arrested, did not know where to get help, and did not have money to pay to go through the process.
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activities and stayed in the house. A few days later, a letter with her name on it was
delivered to her house. The letter threatened torture and death because she had refused to
join the guerillas. She did not report this to the authorities, and no longer had the letter
because she destroyed it. Neither she nor her husband received any further threats before
leaving Guatemala a few months later. A female cousin living nearby received a similar
threatening letter and moved away to the capital city. Asked why she did not do the same,
Mendez-Coronado explained that she did not know anyone in the capital and that she
believed that no one is safe in Guatemala. Instead, Mendez-Coronado came to California,
where her mother had been living for a number of years.
Mendez-Coronado also testified that her father, a soldier in the Guatemalan army, was
murdered in 1996. Her father was driving a truck that was stopped by five men who made
her father get out of the truck and then shot him in the head. Her father was not robbed, and
the other two men with him were not harmed. Although Mendez-Coronado had not been in
Guatemala during the previous ten years and did not have much contact with anyone living
there, she testified that she feared harm if she were to return because the guerrillas are
“present there all the time.” She acknowledged that there had been elections, a change of
government, and an end to the civil war in Guatemala, but stated that there were “always
wars going on.”
The Immigration Judge (IJ) found that the asylum application was time barred, a
determination that was affirmed by the BIA and is not challenged by petitioners on appeal.3
3
Petitioners concede that because the asylum application was denied solely on the ground that it was
untimely and the issue did not present a constitutional claim or question of law, this court is without
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The IJ also found that Mendez-Coronado, although credible, failed to establish (1) either past
persecution or a clear probability of future persecution on account of a protected ground as
is required for withholding of removal; or (2) that it was more likely than not that she would
be tortured if she returned to Guatemala as required for relief under the CAT. The BIA
agreed with the IJ’s findings and dismissed petitioner’s appeal in a final decision entered on
February 24, 2009. This appeal followed.4
II.
When, as here, the BIA reviews the IJ’s decision and issues its own opinion, we
review the BIA’s decision as the final agency determination. See Morgan v. Keisler, 507
F.3d 1053, 1057 (6th Cir. 2007). To the extent that the BIA adopts the IJ’s reasoning, we
also review those portions of the IJ’s decision. See Khalili v. Holder, 557 F.3d 429, 435 (6th
Cir. 2009). Questions of law are reviewed de novo, substantial deference is given to the
BIA’s interpretation of the statute and applicable regulations, and factual findings must be
sustained if their determination is “supported by reasonable, substantial, and probative
evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992). Under the substantial evidence standard, we may not reverse simply because we
would have decided differently. See Gishta v. Gonzales, 404 F.3d 972, 978 (6th Cir. 2005).
Rather, “the administrative findings of fact are conclusive unless any reasonable adjudicator
jurisdiction to review the decision denying the asylum claim. Almuhtaseb v. Gonzales, 453 F.3d 743, 747-
48 (6th Cir. 2006).
4
The petition for review automatically terminated the grant of voluntary departure, see 8 C.F.R. §
1240.26(i) (2009), and this court denied petitioners’ motion for stay of removal on November 23, 2009.
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would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
A. Withholding of Removal under the INA
For withholding of removal under the Immigration and Nationalization Act (INA), an
applicant must demonstrate that, if removed to his home country, his “life or freedom would
be threatened” on account of his race, religion, nationality, membership in a particular social
group, or political opinion. 8 U.S.C. § 1231(b)(3)(A). To meet this burden, the applicant
must establish a clear probability of persecution, meaning that “it is more likely than not” that
he would be subject to persecution upon his return. INS v. Stevic, 467 U.S. 407, 413, 424
(1984); see also Pilica v. Ashcroft, 388 F.3d 941, 951 (6th Cir. 2004). If the applicant proves
past persecution, “there is a presumption, subject to rebuttal by the Government, that his ‘life
or freedom would be threatened in the future’ in the country of removal.” Gjyzi v. Ashcroft,
386 F.3d 710, 715 (6th Cir. 2004) (quoting 8 C.F.R. § 208.16(b)(1)(i)); see also Almuhtaseb
v. Gonzales, 453 F.3d 743, 750 n.6 (6th Cir. 2006) (recognizing that presumption applies to
withholding of removal).
Mendez-Coronado claims that she suffered past persecution in Guatemala as a result
of having refused to join the guerrillas. According to her testimony, which the IJ found
credible, the guerrillas threatened to return and take her with them by force, and then sent her
a letter a few days later threatening torture and death for refusing to go with them. No
physical harm came to her or her husband, however, and she received no further threats
before leaving Guatemala a few months later. Although the term “persecution” is not
defined by the INA, we have held that persecution “‘requires more than a few isolated
09-3298 6
incidents of verbal harassment or intimidation, unaccompanied by any physical punishment,
infliction of harm, or significant deprivation of liberty.’” Gilaj v. Gonzales, 408 F.3d 275,
284 (6th Cir. 2005) (quoting Mikhailevitch v. INS, 146 F.3d 384, 390 (6th Cir. 1998)). In this
case, the isolated and unfulfilled threats do not constitute past persecution, and no
presumption of future persecution arises. See Castellano-Chacon v. INS, 341 F.3d 533, 550
(6th Cir. 2003).
Also, the BIA found that there was no evidence that her father’s murder two years
earlier was on account of a protected ground, or on a ground that related to her in particular.
Petitioners do not challenge this determination on appeal. The BIA’s conclusion that
Mendez-Coronado failed to demonstrate past persecution is supported by substantial
evidence.
Next, the BIA concluded that Mendez-Coronado failed to otherwise establish a clear
probability of future persecution on account of one of the enumerated grounds. Asserting
that her refusal to go with the guerrillas would be deemed to be opposition to their cause,
Mendez-Coronado claimed it was more likely than not that she would be persecuted on the
basis of imputed political opinion if she were to return to Guatemala. Although the IJ
accepted that the feared persecution would be on the basis of imputed political opinion, the
Supreme Court rejected a similar asylum claim on the grounds that the petitioner’s resistence
to recruitment by the guerrillas during the Guatemalan civil war was not an expression of
political opinion. See Elias-Zacarias, 502 U.S. at 482. The Court explained that the
persecution must turn on the “victim’s political opinion, not the persecutor’s.” Id.; see also
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Pascual v. Mukasey, 514 F.3d 483, 486 (6th Cir. 2007) (holding that abduction of petitioner
by guerrillas during the Guatemalan civil war was not persecution based on the victim’s
political opinion). In this case, there is little basis to conclude that persecution of Mendez-
Coronado would be on the basis of her political opinion given her testimony that the
guerrillas sought to recruit her to cook and clean for them.
Our decision need not rest on this basis, however, because substantial evidence
supports the BIA’s finding that Mendez-Coronado failed to demonstrate a clear probability
that she would suffer persecution at the hands of the guerrillas if she were to return to
Guatemala. In support of her claim, Mendez-Coronado expressed the belief that, despite the
end of the civil war and the election of a new government, the guerrillas continued to have
a presence in Guatemala and the government would not be able to protect her. She conceded,
as she must, that conditions have improved, but argued based on the State Department’s 2006
Country Reports that serious problems remained of human rights violations and widespread
societal violence. The Country Reports reflected continued human rights violations by
members of the security forces and police, but made no mention of ongoing guerrilla
activities or forced recruitments. Nor does the general level of societal violence establish
persecution. See Castellano-Chacon, 341 F.3d at 550; Almuhtaseb, 453 F.3d at 750 (holding
that fear of the generalized possibility of persecution is insufficient for withholding of
removal). The BIA’s denial of withholding of removal under the INA was supported by
substantial evidence.
B. Relief under the CAT
09-3298 8
To qualify for withholding of removal under the CAT, the applicant need not
demonstrate that the harm would be on account of an enumerated ground, but “must establish
a ‘particularized threat of torture.’” Almuhtaseb, 453 F.3d at 751 (quoting Castellano-
Chacon, 341 F.3d at 551). The BIA agreed with the IJ that Mendez-Coronado did not
establish that “it is more likely than not” that she would be tortured upon her return to
Guatemala. 8 C.F.R. § 1208.16(c)(2). Although Mendez-Coronado asserts that this was
error, no argument or citation to the record or any case law was offered in support of this
claim. See Al-Najar v. Mukasey, 515 F.3d 708, 717 (6th Cir. 2008) (citing United States v.
Villareal, 491 F.3d 605, 611 (6th Cir. 2007)) (observing that “it is a settled appellate rule that
issues adverted to in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived”). Not only is this claim deemed waived, but also it is
clear that the BIA’s denial of relief under the CAT is supported by substantial evidence.
Under the CAT, “torture” is limited to “an extreme form of cruel and inhuman
treatment and does not include lesser forms of cruel, inhuman or degrading treatment or
punishment that do not amount to torture.” 8 C.F.R. § 1208.18(a)(2). In determining
whether it is more likely than not that the applicant would be tortured if returned to the
country of removal, all evidence should be considered, including, “evidence of past torture
inflicted on the applicant”; the applicant’s ability to “relocate to a part of the country of
removal where he or she is not likely to be tortured”; “gross, flagrant or mass violations of
human rights within the country of removal”; and other “relevant information regarding
conditions in the country of removal.” 8 C.F.R. § 208.16(c)(3)(i)-(v).
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Mendez-Coronado does not argue that consideration of these factors compel a finding
that she would more likely than not be subjected to torture upon her return to Guatemala.
The end of the civil war represents changed country conditions that make it less likely that
she would be tortured by guerrillas for resisting their recruitment efforts. Moreover, as the
IJ found, at the time of the hearing there was no evidence of significant human rights
violations by the guerrillas or that the torture she feared would be “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. § 1208.18(a)(1).
Accordingly, the petition for review is DENIED.