Guzman v. Immigration & Naturalization Service

United States Court of Appeals
For the First Circuit

No. 02-1762

GERMAN N. GUZMAN,

Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF

BOARD OF IMMIGRATION APPEALS

Before

Howard, Circuit Judge,

Campbell and Cyr, Senior Circuit Judges.

Stephen A. Lagana for petitioner.
William C. Minick, Attorney, U.S. Department of Justice, with
whom Robert D. McCallum, Jr., Assistant Attorney General, Civil
Division, and Linda S. Wernery, Senior Litigation Counsel, were on
brief, for respondent.

April 25, 2003
 CAMPBELL, Senior Circuit Judge. German Guzman

("Guzman"), a native and citizen of Guatemala, petitions for

review of the denial by the Board of Immigration Appeals ("BIA") of

his application for asylum and for the withholding of removal, and

his motion to remand in order to apply for protection under the

Convention Against Torture.1 See 8 U.S.C. § 1252(a)(1999). We

affirm the order of the BIA and deny the petition.

BACKGROUND

Guzman entered the United States illegally on January 5,

1990, somewhere along the Mexican border. On June 26, 1997, the

Immigration and Naturalization Service ("INS") issued a Notice to

Appear, charging Guzman with being removable under 8 U.S.C. §

1182(a)(6)(A)(i), as an alien present in the United States without

being admitted or paroled. Guzman admitted the factual allegations

in the notice and conceded removability, but sought relief in the

form of asylum and withholding of removal.

On January 24, 1998, an immigration judge held a hearing

regarding Guzman's application. Guzman testified that he was a

member of the Guatemalan Army during the civil war and would be

1
The Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85,
was implemented in the United States by the Foreign Affairs Reform
and Restructuring Act of 1998, Pub. L. No. 105-277, § 2242, 112
Stat. 2681-761 (codified at 8 U.S.C. § 1231 (2000)). Article 3
prohibits states from returning individuals to other states where
there are substantial grounds for believing they will be subject to
torture.

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killed if he returned to Guatemala. He based his apprehension, in

part, on an incident that occurred shortly before he fled the

country. Guzman testified that, in 1989, while on patrol in

uniform in the town of San Sebastian, he and three other soldiers

were kidnaped by an unknown number of unidentified individuals.

Guzman reported that he and the others were blindfolded, taken into

the hills surrounding the town, and beaten. Although Guzman did

not know why or by whom he was kidnaped, he surmised they were

guerrilla fighters. After three hours, Guzman was able to escape.

As a result of the encounter he sustained a broken finger. After

his escape, Guzman reported the incident to his supervisor in the

army, a lieutenant colonel. Guzman testified that his supervisor

stated that "we could be killed at anytime" and that Guzman's

safety could not be guaranteed. Days later, Guzman left Guatemala,

eventually entering the United States.

Guzman's apprehension of death were he to be returned to

Guatemala rested also on communications with members of his family

still in Guatemala. Guzman testified that his wife told him to

stay in the United States because if he returned to Guatemala

"probably they would kill [him]." Guzman's wife also reported that

in 1994, "they came looking for him." When asked to identify the

"they," Guzman surmised "I think that those are the guerrillas."

Likewise, Guzman reported that his mother advised him not to return

to Guatemala because his first cousin was killed in 1996. Guzman

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was unable to testify with certainty who had killed his cousin or

why, but he speculated that it "[c]ould be the guerrillas because

my cousin was a member of the army." Guzman admitted that he also

fears returning to Guatemala because he was never discharged from

the Guatemalan Army, thus, upon fleeing the country, he became a

deserter.

In an oral decision made at the conclusion of the

hearing, the immigration judge denied Guzman's application for

asylum and for the withholding of removal. While the immigration

judge found Guzman credible, he concluded that Guzman's one-time

abduction and beating during the civil war did not constitute the

"past persecution" necessary to obtain asylum. The immigration

judge also concluded that Guzman failed to establish that he had a

"well-founded fear of future persecution" in Guatemala. The judge

observed that if Guzman were to return to Guatemala his situation

would be no different from that of any other citizen. The judge,

citing to the State Department's Profile of Asylum Claims and

Country Conditions, also noted that the civil war in Guatemala had

ended in 1996.

Guzman appealed from the immigration judge's ruling to

the BIA. While his appeal was pending, Guzman filed a motion to

remand the case to the immigration judge to apply for protection

under the Convention Against Torture. That motion, filed November

4, 1999, stated that "[t]his relief was previously unavailable at

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the time the Respondent had his hearing for Asylum/Withholding of

Deportation." Guzman appended no documentation supporting his

claim for relief.

On May 21, 2002, the BIA affirmed the immigration judge's

decision denying asylum and withholding of removal. In addition to

the reasons set forth by the immigration judge, the BIA noted that

Guzman had failed to demonstrate that any mistreatment had occurred

on account of one of the five statutorily protected grounds -- his

race, religion, nationality, membership in a particular social

group, or political opinion. See 8 C.F.R. § 208.13(b)(1)(2002).

The BIA also denied Guzman's motion to remand to apply for

protection under the Convention Against Torture. According to the

BIA, Guzman's motion failed to include any evidence or statements

of torture which he fears, thus he failed to offer evidence that

established a prima facie case for protection under the Convention

Against Torture. See id. § 3.23(b)(3).

This petition for review followed.

DISCUSSION

A. Denial of Asylum and Withholding of Removal

We review the Board's findings of fact and credibility

under a "substantial evidence" standard. Yatskin v. INS, 255 F.3d

5, 9 (1st Cir. 2001). Board determinations of statutory

eligibility for relief from deportation, whether via asylum or

withholding of removal, are conclusive if "supported by reasonable,

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substantial, and probative evidence on the record considered as a

whole." INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (quoting

8 U.S.C. § 1105a(a)(4)). This standard of review is quite

deferential: we will not reverse unless "the record evidence would

compel a reasonable factfinder to make a contrary determination."

Aguilar-Solis v. INS, 168 F.3d 565, 569 (1st Cir. 1999).

The BIA had ample evidence from which to reject Guzman's

asylum claim and a fortiori his petition to withhold removal.

Velasquez v. Ashcroft, 316 F.3d 31 n.2 (1st Cir. 2002) (noting that

because the standard for withholding deportation is more stringent

than that for asylum, "a petitioner unable to satisfy the asylum

standard fails, a fortiori, to satisfy the former"). To carry his

burden of establishing eligibility for asylum, Guzman had to prove

either past persecution or a well-founded fear of future

persecution based on one of the enumerated statutory grounds; race,

religion, nationality, membership in a particular social group, or

political opinion. Id. at 65 (citing 8 C.F.R. § 208.13(b)(1)). If

an applicant can prove past persecution, a regulatory presumption

that the applicant has a well-founded fear of future persecution is

triggered. 8 C.F.R. § 208.13(b)(1).

To establish past persecution more than harassment or

spasmodic mistreatment by a totalitarian regime must be shown.

Aguilar-Solis, 168 F.3d at 570 (the persecution alleged must be

more than mere harassment). Guzman bears a heavy burden;

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establishing past persecution is a daunting task. See Ravindran v.

INS, 976 F.2d 754, 756-60 (1st Cir. 1992) (persecution not found

where member of minority ethnic group had been interrogated and

beaten for three days in prison and warned about pursuing political

activities); Kapcia v. INS, 944 F.2d 702, 704, 708 (10th Cir. 1991)

(no finding of past persecution where one petitioner was "arrested

four times, detained three times, and beaten once," and another

"was detained for a two-day period during which time he was

interrogated and beaten" and warned not to continue his political

activities); Kubon v. INS, 913 F.2d 386, 388 (7th Cir. 1990)

("brief confinement for political opposition to a totalitarian

regime does not necessarily constitute persecution"). Guzman must

establish, moreover, through direct or circumstantial evidence,

that his alleged persecutors were motivated by one of the

statutorily enumerated grounds. Elias-Zacarias, 502 U.S. at 483.

Here, there is substantial support for the BIA's finding

that petitioner failed to show he was singled out for persecution.

The record shows only that, while in the Army, Guzman was kidnaped

by unknown individuals who may have been guerrillas, thrown into

the back of a truck, beaten and held captive for approximately

three hours resulting in superficial physical harm. Even assuming,

without deciding, that targeting by guerrillas because of army

affiliation could be a statutorily protected ground, this one-time

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kidnaping and beating falls well short of establishing "past

persecution."

Both a subjective and objective component must underlie

a claim of a "well-founded fear of future persecution." 8 U.S.C.

§ 1101(a)(42)(A); Ravindran, 976 F.2d at 758. The asserted fear

must be subjectively genuine, and objectively, the applicant must

show "'by credible, direct, and specific evidence, . . . facts that

would support a reasonable fear that the petitioner faces

persecution.'" Ravindran, 976 F.2d at 758 (quoting Alvarez-Flores

v. INS, 909 F.2d 1, 5 (1st Cir. 1990)).

Here, the immigration judge accepted as genuine Guzman's

subjective fear of persecution, but determined that Guzman's

evidence fell short of establishing his fear was objectively

reasonable. The civil war was concluded in 1996, and there was no

evidence that Guzman would now be singled out for harm because he

had once been an army member. While Guzman testified that his wife

received a threat about his well-being in 1994 and that his first

cousin was killed, the origin of, and the reason for, the threats

against him were unclear, as was the cause of his cousin's death.

Both of these events apparently occurred before the cease-fire in

1996. The record established that other relatives of Guzman have

lived, undisturbed, in Guatemala for more than a decade. See

Aguilar-Solis, 168 F.3d at 573 ("[T]he fact that close relatives

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continue to live peacefully in the alien's homeland undercuts the

alien's claim that persecution awaits his return.")

The BIA, therefore, supportably concluded that Guzman

failed to establish eligibility for asylum and for withholding of

removal. Velasquez, 316 F.3d at 31 n.2; see also Alvarez-Flores,

909 F.2d at 4 (noting that a petitioner who fails to satisfy the

asylum standard automatically fails to satisfy the standard for

withholding of deportation).

B. Convention Against Torture

Guzman argues that the BIA abused its discretion when it

denied his motion to remand for consideration of his claim for

protection under the Convention Against Torture. The BIA treated

Guzman's motion to remand as a motion to reopen because Guzman

requested additional proceedings pursuant to newly enacted

legislation implementing a previously unavailable avenue of

protection. See Al Najar v. Ashcroft, 257 F.3d 1262, 1301 (11th

Cir. 2001). The BIA denied the motion because Guzman "failed to

offer evidence that establishes a prima facie case for protection

under the Convention Against Torture."

The burden of proof was on Guzman to establish that it is

more likely than not that he would be tortured if he were removed

to Guatemala. 8 C.F.R. § 208.16(c)(2). Generally, a motion to

reopen must be accompanied "by the appropriate application for

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relief and all supporting documentation." Id. § 3.23(b)(3).2 The

supporting documentation must present a "prima facie case of

eligibility for relief." INS v. Abdu, 485 U.S. 94, 105 (1988). To

establish a prima facie showing of torture, a petitioner must offer

specific showings that he or she will be subject to "severe pain or

suffering, whether physical or mental" 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).

Guzman's request for relief under Article 3 of the

Convention Against Torture did not contain supporting

documentation, nor, indeed, did it describe the nature of Guzman's

Convention Against Torture claim. Guzman urges us to consider the

evidence in support of his application for asylum as evidence in

support of his Convention Against Torture claim. But even so, this

2
After the Convention Against Torture went into effect in this
country, the INS issued regulations governing petitions to reopen
based on the convention, Regulations Concerning the Convention
Against Torture, 64 Fed. Reg. 8478 (1999) (codified in scattered
sections of 8 C.F.R.). For aliens who had requests pending with
the INS on March 22, 1999, for protection under Article 3 of the
Convention Against Torture, a more lenient standard for reopening
exists. 8 C.F.R. § 208.18(b)(3)(B)(ii). Under the more lenient
standard a motion to reopen is not subject to the strictures of 8
U.S.C. § 3.23 and "shall be granted if it is accompanied by the
notice described in paragraph (b)(3)(ii) or by other convincing
evidence that the alien had a request pending with the Service for
protection under Article 3 of the Convention Against Torture on
March 22, 1999." Id. Guzman did not have a request pending for
relief under the Convention Against Torture on March 22, 1999, he
did not file his motion for protection until November 4, 1999. As
a result, he must meet the requirements set forth in 8 U.S.C. §
3.23.

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evidence does not make out a prima facie case of eligibility for

relief.3 The kidnaping and beating that Guzman described in his

asylum application were not inflicted on behalf of the government.

There is thus no evidence from which to infer that any harm

suffered upon return would be by or at "the instigation of or with

the consent or acquiescence of, a public officials or other person

acting in an official capacity." Guzman presented no evidence,

moreover, that any penalties imposed upon him for desertion from

the Army would involve torture or the like.

Accordingly, the petition for review is denied.

3
Guzman conceded at oral argument that he had no additional
evidence to present to the BIA in support of his application for
protection under the Convention Against Torture.

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