United States Court of Appeals
For the First Circuit
No. 07-1113
ERNEY TOBON-MARIN, ET AL.,
Petitioners,
v.
MICHAEL B. MUKASEY,* ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lipez, Circuit Judge,
Cyr, Senior Circuit Judge,
and Howard, Circuit Judge.
Desmond P. FitzGerald, with whom FitzGerald & Company, LLC,
was on brief for petitioner.
Peter D. Keisler, Acting Attorney General, Cindy S. Ferrier,
Senior Litigation Counsel, and Rebecca A. Niburg, Trial Attorney,
on brief for respondent.
January 8, 2008
*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Michael B. Mukasey has been substituted for former Attorney General
Alberto R. Gonzáles as the respondent herein.
CYR, Senior Circuit Judge. Erney and John Freddy Tobon-
Marin, brothers who are natives and citizens of Colombia, entered
the United States in 2002 and 2003, respectively, without valid
visas. The Immigration and Naturalization Service (INS) commenced
deportation proceedings against the brothers, who conceded
removability, but filed applications for asylum based on their
allegations of past persecution in Colombia relating to their
political beliefs.
At their hearing before an immigration judge (IJ), Erney
testified that before he left Colombia, the Revolutionary Armed
Forces of Colombia (aka Fuerzas Armadas Revolucionarias de Colombia
or the FARC), a communist guerilla group seeking to bring about the
forcible overthrow of the Colombian government, came to the house
where Erney resided with his parents and three brothers, and asked
him to join the FARC. Erney did not want to join the FARC because
he disagreed with their political agenda. Because he was
frightened, however, Erney did not respond, and the guerillas left.
During the following week, Erney heard that the FARC had murdered
a teenage boy from his neighborhood who had been invited to join
the FARC but had refused. Concerned for Erney’s safety, his
parents paid for his plane fare to the United States.
Later in 2002, the FARC sent a threatening letter to the
Tobon-Marin home, asking Erney’s brother, John Freddy, to join the
FARC or face serious consequences. Within the next few days, John
-2-
Freddy also received three or four threatening phone calls. John
Freddy’s parents paid for his airfare to the United States to join
his brother Erney. Petitioners’ parents and older brother, who was
also approached by the FARC but refused to join, have remained at
their home in Colombia without further incident.
The IJ denied petitioners’ applications for asylum,
finding, inter alia, that: (i) petitioners were credible, and had
established a subjectively genuine fear of returning to Colombia;
(ii) petitioners had not established that their subjective fear was
objectively reasonable; (iii) the FARC’s threats against
petitioners did not persist or escalate into violence or physical
harm; (iv) petitioners never told the FARC that their refusal to
join was based on their political views, and thus they did not
conclusively establish that the FARC threats were made on account
of that statutorily protected ground; and (v) petitioners’ family
(and especially their older brother, whom the FARC had
unsuccessfully attempted to recruit) had remained behind at the
family home in Colombia without suffering any adverse repercussions
from petitioners’ refusals to join the FARC. On appeal, the BIA
affirmed on these same grounds, and the brothers submitted their
consolidated petition for review.
I
DISCUSSION
Petitioners contend that the IJ and the BIA erred in
-3-
denying their asylum applications on the grounds that the FARC’s
previous attempts forcibly to conscript them into the guerilla
group were neither sufficiently grievous to constitute
“persecution” nor motivated by petitioners’ political opinions, and
that petitioners failed to adduce sufficient evidence that their
subjective fear of returning to Colombia was objectively
reasonable.
As the BIA adopted and supplemented the IJ’s opinion with
its own substantive gloss, we evaluate both the IJ’s decision and
the BIA decisions. See Sunoto v. Gonzales, 504 F.3d 56, 59-60 (1st
Cir. 2007). We deferentially scrutinize the agency’s findings of
fact under the “substantial evidence” standard, and will affirm
unless “any reasonable adjudicator would be compelled to conclude
to the contrary,” 8 U.S.C. § 1252(b)(4)(B).
In order to establish their entitlement to asylum,
petitioners needed to prove they are “refugees,” in that they are
“unable or unwilling to return to . . . [their] country 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.” Id. § 1101(a)(42)(A) (emphasis
added). The statute contemplates two approaches which petitioners
might pursue to satisfy their burden of proof.
A. Past Persecution
First, petitioners may prove they suffered from past
-4-
“persecution” on account of one or more of the five statutory
grounds, supra, which would generate a rebuttable presumption that
their fear of future persecution is well-founded. See Nikijuluw v.
Gonzales, 427 F.3d 115, 120 (1st Cir. 2005). The administrative
record contains ample evidentiary support for the agency’s ruling
that petitioners failed to meet this burden of proof.
Petitioners were required to adduce sufficient evidence
of a causal nexus between the FARC’s actions and petitioners'
political beliefs. Fesseha v. Ashcroft, 333 F.3d 13, 18 (1st Cir.
2003) (noting that alien must establish past persecution with
“conclusive evidence”). It is not enough to establish that the
FARC is a politically-motivated guerilla group, since “persecution
on account of . . . political opinion . . . is persecution on
account of the victim’s political opinion, not the prosecutors.”
INS v. Elias-Zacarias, 502 U.S. 478, 482 (1992) (“Thus, the mere
existence of a generalized ‘political’ motive underlying the
guerrillas’ forced recruitment is inadequate to establish . . . the
proposition that [the petitioner] fears persecution on account of
political opinion, as [§ 1101(a)(42)] requires.”). Absent specific
evidence that the FARC targeted petitioners as a means to punish
them for their pro-government, anti-communist political views,
forced conscription would not constitute “persecution” for asylum
purposes. See id. at 483 (noting that such recruiters may inflict
harm not because of the target’s political opinion, but simply
-5-
“because of his refusal to fight with them”); Velasquez-Valencia v.
INS, 244 F.3d 48, 50 (1st Cir. 2001); see also Bartolo-Diego v.
Gonzales, 490 F.3d 1024, 1027-28 (8th Cir. 2007) (noting that “the
guerillas ‘did not identify the [petitioner] or seek to recruit him
because of any political opinion, or punishment for his father’s
service within the military,’ . . . [but that] ‘he was simply
targeted as a young man who might be sympathetic to the guerilla
cause’”) (citations omitted); Tapiero de Orejuela v. Gonzales, 423
F.3d 666, 674 (7th Cir. 2005) (noting that petitioners “would have
had to show that politics rather than many other likely reasons lay
behind their unwillingness to support FARC”); Sanchez v. United
States Attorney Gen., 392 F.3d 434, 438 (11th Cir. 2004) (observing
that “[i]t is not enough to show that [petitioner] was or will be
persecuted or tortured due to her refusal to cooperate with the
guerillas”).
Indeed, coercive conscription efforts might be motivated
simply by the recruiters’ desire to fill their ranks with any
available able-bodied individual, irrespective of their political
sympathies, and the target of coerced recruitment might resist
conscription for any number of nonpolitical motives, such as a fear
of combat, or a reluctance to give up his civilian livelihood. See
Tapiero de Orejuela, 423 F.3d at 673. Although petitioners
testified that they subjectively held such anti-FARC sentiments,
they admit that they did not communicate these views to the FARC
-6-
representatives who attempted to recruit them. For example, Erney
testified that he was simply too frightened to answer the
recruiters, and their mother told the recruiters that John Freddy
was too young. Even if we were to assume, arguendo, that
circumstantial evidence alone might support an inference that the
FARC correctly or incorrectly imputed an opposing political opinion
to these petitioners, see, e.g., Delgado v. Mukasey, No. 05-4393,
2007 WL 4180134, at *3 (2d Cir. Nov. 28, 2007); Bartolo-Diego, 490
F.3d at 1027, the record contains no such supportive circumstantial
evidence. As factfinder, the agency legitimately inferred that the
FARC likely targeted petitioners simply because they were able-
bodied young boys. Although such coercive practices are indeed
unfortunate, they do not trigger an entitlement to political asylum
under 8 U.S.C. § 1101(a)(42)(A).
Further, even if petitioners had adduced evidence of a
causal nexus, asylum applicants must also demonstrate that the
actual harm inflicted on them reached “a fairly high threshold of
seriousness, as well as some regularity and frequency,” Alibeaj v.
Gonzales, 469 F.3d 188, 191 (1st Cir. 2006), which requires them to
relate experiences amounting to “‘more than mere discomfiture,
unpleasantness, harassment, or unfair treatment,’” Susanto v.
Gonzales, 439 F.3d 57, 59-60 (1st Cir. 2006) (citation omitted).
The FARC merely attempted forced conscription of petitioners, but
neither succeeded nor persisted in its efforts. The FARC
-7-
approached Erney in person only once, and contacted John Freddy
only a few times by mail or telephone. “Threats standing alone []
constitute past persecution in only a small category of cases, and
only when the threats are so menacing as to cause significant
actual ‘suffering or harm.’” Butt v. Keisler, 506 F.3d 86, 91 (1st
Cir. 2007) (citation omitted). Neither petitioners nor their
families were physically harmed. See Zacarias-Velasquez v.
Mukasey, No. 06-3672, 2007 WL 4233155, *4 (8th Cir. Dec. 4, 2007)
(“According to [petitioner’s] testimony, neither the guerrillas nor
any other group ever harmed or even detained him.”); see also
Susanto, 439 F.3d at 59-60 (noting that even infliction of actual
physical harm might not constitute “persecution”).1 Rather,
petitioners’ family has remained behind in their home in Colombia
without any attempts by the FARC to retaliate for petitioners’ and
their brother’s implicit refusals to join its ranks. While
1
Petitioners specifically fault the BIA for citing Guzman v.
INS, 327 F.3d 11 (1st Cir. 2003), arguing that the decision turned
exclusively on Guzman’s failure to refute evidence that the
political situation in Guatemala had changed since the alleged acts
of persecution against him, whereas it is undisputed that the
political climate in Colombia has undergone no comparable sea
change. In Guzman, however, we first upheld the agency’s
determination that Guzman failed to prove past “persecution,” even
though guerillas had kidnaped, imprisoned and beat him. Id. at 15-
16. That failure of proof precluded Guzman from enjoying a
rebuttable presumption that his fear of future persecution was
well-founded, and record evidence of any intervening political
changes in Guatemala further undercut Guzman’s future-persecution
claim. Id. at 16. Hence, the BIA correctly cited Guzman for the
proposition that petitioners had not proven, as a threshold matter,
that the acts of past persecution were severe enough to constitute
“persecution” under the asylum statute.
-8-
petitioners testified that their brother stayed close to home to
avoid possible confrontation with the FARC recruiters, the agency
was within its rights to conclude that such a hindrance would
amount to no “‘more than mere discomfiture, unpleasantness,
harassment, or unfair treatment’” rather than “persecution.” Id.
B. Future Persecution
As petitioners failed to prove past persecution, they
have generated no rebuttable presumption that their fear of future
persecution is well-founded. See Nikijuluw, 427 F.3d at 120. Yet,
they maintain that the IJ and BIA were compelled to find that
petitioners' fear of future persecution was not only subjectively
genuine, but objectively reasonable as well. See Negeya v.
Gonzales, 417 F.3d 78, 82-83 (1st Cir. 2005). As support, they
cite (i) Erney’s testimony that the FARC assassinated a neighbor
who had resisted its forced conscription attempts, and a United
States State Department country condition report that the FARC,
which is infamous for murderous reprisals against its political
opponents, principally targets young males of petitioners’ ages for
forced recruitment; and (ii) a UNICEF Report that about 17.5% of
Colombian youths are “affected” by Colombia’s civil war, see INS v.
Cardoza-Fonseca, 480 U.S. 421, 431 (1987) (observing that even a
10% chance that an event of persecution may occur may make
petitioner’s fear well founded). This evidence, however, does not
compel a finding that petitioners’ fear of future persecution was
-9-
objectively reasonable.
The anecdotal evidence of the assassinated neighbor is of
limited evidentiary weight because petitioners were unable to
provide any further details about the circumstances surrounding
that event, thus precluding an agency determination of the FARC’s
motive for killing the neighbor (viz., whether motivated solely by
the victim’s refusal to join the FARC), and whether the killing
suggested that petitioners might have provided the FARC with a
similar retaliatory incentive. Whatever the “country conditions”
report may have been regarding the FARC’s reputation for violent
retribution against its political opponents, the record contains no
evidence that the FARC has formed any such intention toward these
petitioners. Cf. Delgado, 2007 WL 4180134, at *4 (noting that
petitioner, who was kidnaped by the FARC and escaped, had been
“marked for death”). Indeed, the record discloses countervailing
evidence: petitioners’ family (and especially their brother, who
is of an appropriate age to serve in the military) have remained
behind in the family residence not only without any attempted
reprisals by the FARC for petitioners’ refusals to join, but
apparently without any further FARC contacts of any kind. See
Boukhtouchen v. Gonzales, 498 F.3d 78, 81 n.3 (1st Cir. 2007)
(“‘[T]he fact that close relatives continue to live peacefully in
the alien’s homeland undercuts the alien’s claim that persecution
awaits his return.’”) (citation omitted); Nikijuluw, 427 F.3d at
-10-
122.
Nor does the UNICEF report – that Colombia’s civil unrest
“affects” about 17.5% of its child population – compel an agency
finding that the petitioners’ fear of future persecution is
objectively reasonable. The term “affects,” standing alone, does
not necessarily connote that these children suffer effects which
rise to the level of “persecution,” as that term is used in §
1101(a)(42). Civil war, and the pandemic violence which
accompanies it, often have unfortunate collateral effects on much
of a country’s population, but these effects have no direct or
necessary correlation with the victims’ political views. See
Harutyunyan v. Gonzales, 421 F.3d 64, 70 (1st Cir. 2005)
(“‘[E]vidence of widespread violence and human rights violations
affecting all citizens is insufficient to establish persecution.’”)
(citation omitted).
Thus, the agency’s determination that petitioners failed
to establish an objectively reasonable fear of future persecution
based on their political opinions is sufficiently supported by
substantial record evidence.
II
CONCLUSION
However deplorable and regrettable the FARC’s forced
conscription methods against petitioners and other Colombian
youths, the asylum statute simply was not enacted to embrace cases
-11-
wherein harmful acts were not committed on account of one of the
five enumerated statutory grounds, nor where they did not reach a
minimum threshold of severity. As the IJ and the BIA had
substantial evidence upon which to conclude that the petitioners’
unfortunate experiences were neither politically motivated nor
sufficiently grave, and that it is unlikely that they will suffer
serious reprisals at the hands of the FARC if they are repatriated
to Columbia, their petitions for review must be denied.
Denied.
-12-