Antonio Cruz-Carrillo v. Loretta Lynch

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0296n.06

Case No. 15-3940

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED
Jun 03, 2016
ANTONIO CRUZ-CARRILLO, )
DEBORAH S. HUNT, Clerk
)
Petitioner, )
) ON PETITION FOR REVIEW
v. ) FROM THE UNITED STATES
) BOARD OF IMMIGRATION
LORETTA E. LYNCH, U.S. Attorney General, ) APPEALS
)
Respondent. )
)
) OPINION

BEFORE: COLE, Chief Judge; McKEAGUE and GRIFFIN, Circuit Judges.

COLE, Chief Judge. Antonio Cruz-Carrillo, a native and citizen of Guatemala, petitions

for review from a decision of the Board of Immigration Appeals (“BIA”) denying his

applications for withholding of removal and protection under the Convention Against Torture

(“CAT”). Cruz-Carrillo says he fears violence at the hands of Guatemalan government soldiers,

who have previously attacked him, either because he refused to join their ranks or because they

suspected him of aiding rebel guerrillas. The BIA found that Cruz-Carrillo had not sufficiently

established a nexus between his political neutrality during the Guatemalan civil war and the

soldiers’ attacks, or shown that he likely faced persecution or torture upon his return. Because

the BIA’s decision was supported by substantial evidence, we deny the petition.
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I. Background

Cruz-Carrillo was born in Guatemala in 1976. From about 1960 to 1996, Guatemala

suffered a civil war. His family was neutral in the civil war, but lived in Todos Santos, a town in

a part of the country considered to be a stronghold for the rebel guerrillas. He fled to the United

States to escape violence at the hands of government soldiers, and fears similar violence in the

future.

In 1982, government soldiers attacked Cruz-Carrillo’s family because the family refused

to join the soldiers in their fight against the guerrillas. Only seven years old, Cruz-Carrillo

watched as his family was beaten, his mother and sister raped. The family then moved to a

different area of Guatemala for nine years, but returned to Todos Santos in September 1991. The

day the family returned, government soldiers appeared at their home and accused the family of

supporting the guerrillas. The soldiers once again beat the family, raped his mother and sister,

and then executed his sister.

After this incident, Cruz-Carrillo fled to the United States. He arrived in 1992 and filed

an application for asylum in 1993. The Immigration and Naturalization Service (“INS”) denied

his asylum application, but he remained in the United States.

Cruz-Carrillo returned to Guatemala in 1997 to care for his ill mother. A few days later,

he was kidnapped and severely beaten by government soldiers who believed he had joined the

guerrillas. He spent several days in the hospital. When his father tried to report this incident to

the police, they told him to stop “causing problems.”

Cruz-Carrillo returned to the United States as soon as he recovered. Because his asylum

application had been denied, he was placed into removal proceedings. An Immigration Judge

(“IJ”) denied his application for cancellation of removal, and he was removed in March 2012.

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Less than two weeks after being removed to Guatemala, Cruz-Carrillo was once again

attacked by government soldiers who accused him of being a guerrilla. They broke into his

house, this time wearing masks to hide their identities, where they beat and stabbed Cruz-

Carrillo, leaving him for dead. He survived after spending over a week in the hospital. Once

again, his father tried to report this incident to the police, but they refused to help.

Within a few months of leaving the hospital, Cruz-Carrillo unlawfully reentered the

United States. Since reentering, his parents have told him that government soldiers have twice

come to their home looking for him.

Cruz-Carrillo was apprehended by the Department of Homeland Security in December

2014, which sought to reinstate the IJ’s 2012 removal order. He applied for withholding of

removal and protection under the CAT, arguing that he feared government soldiers would

continue to harm him if he returned to Guatemala.

An IJ held an evidentiary hearing at which Cruz-Carrillo was the sole witness. On May

11, 2015, the IJ denied Cruz-Carrillo’s application. First, the IJ found Cruz-Carrillo’s testimony

not credible due to inconsistencies in his testimony and written application. Second, the IJ found

that even if Cruz-Carrillo were credible, he had failed to establish a nexus between the attacks

and his political neutrality. Third, the IJ found that the end of the Guatemalan civil war had

worked a fundamental change in the country, and that its government no longer conducts

politically-motivated killings or disappearances. Finally, the IJ found that Cruz-Carrillo failed to

show he would likely be subject to government-sanctioned torture.

The BIA affirmed the IJ’s decision. The BIA did not address the IJ’s credibility finding,

and instead decided that he had not proved his case “even if his claims were accepted as

credible.” The BIA was “not persuade[d]” that Cruz-Carrillo’s “claimed political opinion, i.e.,

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remaining neutral during and after the Guatemalan civil war, is a central reason for the claimed

harm.” Furthermore, the BIA found that changed country circumstances “do[] not indicate that

politically neutral individuals are targeted for persecution in Guatemala” today. With respect to

the CAT claim, the BIA found no “persuasive reason why anyone in Guatemala would seek to

harm him in a manner amounting to torture.”

The order of removal was therefore reinstated. On September 1, 2015, a panel of this

court denied his motion for a stay of removal. Cruz-Carrillo has since been removed to

Guatemala. Despite his removal, his case is not moot and we retain jurisdiction to hear his

appeal. Garcia-Flores v. Gonzales, 477 F.3d 439, 440 n.1 (6th Cir. 2007) (citing Santana-

Albarran v. Ashcroft, 393 F.3d 699, 701 n.1 (6th Cir. 2005)).

II. Analysis

“Because the BIA did not summarily affirm or adopt the IJ’s reasoning and provided an

explanation for its decision, we review the BIA’s decision as the final agency determination.”

Young Hee Kwak v. Holder, 607 F.3d 1140, 1143 (6th Cir. 2010) (quoting Ilic-Lee v. Mukasey,

507 F.3d 1044, 1047 (6th Cir. 2007)). We review the BIA’s factual findings “[u]nder the

deferential substantial evidence standard.” Khozhaynova v. Holder, 641 F.3d 187, 191 (6th Cir.

2011). The BIA’s “findings of fact are conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); Yu v. Ashcroft, 364 F.3d 700,

702–03 (6th Cir. 2004).

To qualify for CAT protection, the applicant must show it “is more likely than not that he

or she would be tortured if removed to the proposed country of removal.” 8 C.F.R.

§ 1208.16(c)(2). The BIA denied Cruz-Carrillo’s application for protection under the CAT.

Cruz-Carrillo did not address his CAT claim in his brief to this court, however, and has therefore

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forfeited it. See Hih v. Lynch, 812 F.3d 551, 556 (6th Cir. 2016). We will accordingly only

consider his claim for withholding of removal.

Withholding of removal requires an applicant to prove that, more likely than not, he faces

persecution on one of five protected grounds: race, religion, nationality, social group, or political

opinion. 8 U.S.C. § 1231(b)(3)(A); Almuhtaseb v. Gonzales, 453 F.3d 743, 749 (6th Cir. 2006).

Here, Cruz-Carrillo claims the soldiers persecuted him either because of his political opinion of

neutrality, or because they incorrectly believed he supported the guerrillas. Credible evidence of

past persecution on a protected basis creates a rebuttable presumption of future persecution.

8 C.F.R. § 208.16(b)(1)(i).

An adverse credibility determination is fatal to a claim for withholding of removal.

Slyusar v. Holder, 740 F.3d 1068, 1072, 1074 (6th Cir. 2014). While the IJ found Cruz-Carrillo

not to be credible, this was not the basis for the BIA’s decision. Instead, the BIA assumed Cruz-

Carrillo’s allegations were credible, and nevertheless found he had not met his burden to avoid

removal. Because “the BIA fail[ed] to make an explicit adverse [credibility] determination and

instead denie[d] relief on some other basis, we will assume that the applicant was credible in

order to review the actual grounds for the ruling.” Haider v. Holder, 595 F.3d 276, 282 (6th Cir.

2010).

The BIA decided that Cruz-Carrillo “ha[d] not identified any persuasive testimony or

evidence which would indicate that his political neutrality was a central reason for his prior harm

or would be a central reason for any future harm.” While the BIA did not elaborate on its

reasoning, it cited two cases in support: INS v. Elias-Zacarias, 502 U.S. 478, 483–84 (1992), and

Pascual v. Mukaskey, 514 F.3d 483, 487 (6th Cir. 2007). A brief review of these cases—both of

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which involved Guatemalan petitioners seeking to avoid forced conscription—sheds light on the

BIA’s conclusion.

In Elias-Zacarias, the Supreme Court considered the requests for asylum and withholding

of removal of a Guatemalan petitioner who claimed a well-founded fear of persecution based on

his resistance to the rebel guerrillas’ attempt to recruit him. 502 U.S. at 480. The Court noted

that “[e]ven a person who supports a guerrilla movement might resist recruitment for a variety of

reasons,” and held that the record “failed to show a political motive on Elias-Zacarias’ part”

because he merely feared “that the government would retaliate against him and his family if he

[joined the guerrillas].” Id. at 482. Nor did he establish that the guerrillas’ attempts to recruit

him were based on his personal political opinions, as opposed to the guerrillas’ own “generalized

‘political’ motive.” Id. Furthermore, even if he feared that the guerrillas would retaliate against

him for refusing to join, the Court held Elias-Zacarias had not proved the retaliation would occur

because of his political opinion rather than because of his refusal to join and fight. Id. at 483.

Our opinion in Pascual followed the same reasoning. In that case, the Guatemalan

petitioner was involuntarily drafted into a government-created “civilian patrol” before being

kidnapped and forced to join the guerrillas. 514 F.3d at 484. He escaped and fled to the United

States, fearing reprisal from both the government and the guerrillas. Id. at 484–85. We found

that the record did not compel the conclusion that Pascual was persecuted on account of the

government or guerrillas erroneously imputing political opinions to him. Id. at 486–87. Instead,

the government and the guerrillas appeared to have acted based on a desire to further their own

political interests, not to punish Pascual for his. Id.

Cruz-Carrillo argues that the Guatemalan government’s soldiers beat him because they

incorrectly believed he supported the guerrillas, when in fact he was merely neutral in the civil

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war. We have previously held that imputed political opinion can be a protected ground. Haider,

595 F.3d at 284–85. An individual can claim he is being persecuted based on a political opinion

he does not actually hold, as long as his persecutors believe he holds that opinion. Id. Notably,

“suspected affiliation with an anti-government terrorist group [can] constitute imputed political

opinion.” Id. at 284. We have also noted that a person’s conduct can be the basis for an imputed

political opinion, and thus provide a nexus to a protected ground. Id. at 285 n.9.

The BIA rejected Cruz-Carrillo’s claim, but somewhat cryptically only said that he had

not “identified any persuasive testimony or evidence” to support the conclusion that “political

neutrality was a central reason for” the persecution. The government argues that the BIA

reached this conclusion because Cruz-Carrillo “advanced a litany of ‘vacillating’ allegations

regarding the purported motivations of the Guatemalan police and soldiers in his written

application and testimony.” True, Cruz-Carrillo alternated between claiming that the soldiers

attacked him because he would not join them due to his neutrality and claiming they attacked

him because they alleged he was a guerrilla. But the BIA explicitly passed on the opportunity to

make any adverse credibility determination based on this difference. Furthermore, this evidence

does not necessarily demonstrate inconsistency—the soldiers may very well have had a “if

you’re not with us, you’re against us” mentality. Far from Cruz-Carrillo “vacillating” in his

theory, it may be that the soldiers did not fully appreciate his political beliefs. They would not

be the first people in history to mistake neutrality for supporting the enemy. The weight of the

evidence accordingly supports Cruz-Carrillo’s story that the attacks were a direct result of his

political neutrality as expressed by his refusal to join the soldiers.

Fatal for Cruz-Carrillo, however, is that there is evidence on the other side too. Cruz-

Carrillo admitted in his written application that the soldiers attacked him, at least in part, because

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of his refusal to join them. The BIA could have reasonably inferred that it was this refusal that

caused the attacks rather than his political opinion. That is, the soldiers may have retaliated

against anyone who refused to join them, regardless of that person’s reason for doing so. It is not

enough that the soldiers had a political agenda in attempting to recruit Cruz-Carrillo; they must

have persecuted him because of his political opinion (or imputed political opinion) as expressed

through his resistance to their attempted forced recruitment. See Elias-Zacarias, 502 U.S. at

482–83.

Under the highly deferential standard of review we must apply, we can only grant the

petition for review if the evidence is so overwhelmingly in Cruz-Carrillo’s favor that “no

reasonable factfinder could fail to find the requisite fear of persecution.” Id. at 484. The BIA

permissibly inferred that Cruz-Carrillo’s political opinion was not a central motivation for the

attacks. This is a reasonable conclusion given the record.

Even if we were compelled to find that Cruz-Carrillo has shown past persecution on the

basis of his political opinion, the BIA also noted changed country circumstances that could

overcome the presumption that he faces future persecution upon removal. See 8 C.F.R.

§ 208.16(b)(1)(i)(A). The BIA’s decision was based in part on the fact that the State

Department’s 2013 Human Rights Report on Guatemala “does not indicate that politically

neutral individuals are targeted for persecution in Guatemala.” In fact, the Report notes that,

while “security forces committed human rights abuses” including “serious crimes such as

kidnapping, drug trafficking, and extortion,” there were “no reports that the government

committed politically motivated killings” and “no reports of politically motivated

disappearances.”

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Cruz-Carrillo says he is still at risk upon return to Guatemala. He points to his own

experience from 2012, when he says he was beaten and stabbed by masked soldiers who believed

he used to support the guerrillas. He also alleges that he is on a secret government “black list” of

guerrilla supporters who are targeted for death despite the cessation of hostilities. We have

previously noted that the end of the Guatemalan civil war has diminished individuals’ reasonable

fears of persecution based on political opinion. See Pascual, 514 F.3d at 488. The State

Department’s 2013 Report provides substantial evidence for the BIA to have reached that

conclusion here, despite Cruz-Carrillo’s testimony as to his own experiences. We are not

compelled to find the BIA was incorrect in giving greater weight to the Report.

III. Conclusion

For the foregoing reasons, we deny Cruz-Carrillo’s petition for review.

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