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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