Friday, September 9, 2011
For the First Circuit
ALBERTO R. GONZALES,
ATTORNEY GENERAL OF THE UNITED STATES,
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Boudin, Chief Judge,
Selya and Howard, Circuit Judges.
Stephen A. Lagana and Lagana & Associates on brief for
Robert Clark Corrente, United States Attorney, and Stephanie
S. Browne, Assistant United States Attorney, on brief for
October 28, 2005
The Homeland Security Act of 2002, Pub. L. No. 107-296, § 1
471, 116 Stat. 2135, 2205 (codified as amended at 6 U.S.C. §
291(a)), abolished the INS and transferred its duties to the
Department of Homeland Security. See Lattab v. Ashcroft, 384 F.3d
8, 13 n.2 (1st Cir. 2004). For simplicity's sake, we refer
throughout to the INS.
SELYA, Circuit Judge. The petitioner, Efrain Palma-
Mazariegos, is a Guatemalan national. He seeks judicial review of
a final order of the Board of Immigration Appeals (BIA) denying his
application for asylum, withholding of removal, and protection
under the United Nations Convention Against Torture (CAT),
maintaining that the immigration judge (IJ) and the BIA incorrectly
found that changed country conditions in Guatemala eliminated any
objectively reasonable fear of future prosecution should he be
forced to return to his native land. We conclude that the record
contains substantial evidence to support both (i) the determination
that country conditions have changed and (ii) the BIA's holding
that those changed conditions adequately rebut the petitioner's
asserted fear of future persecution. Consequently, we deny the
petition for review.
Certain background facts are matters of record. The
petitioner entered the United States without proper documentation
on December 15, 1991. He filed an application for asylum and
withholding of removal with the Immigration and Naturalization
Service (INS) a few months later. Nothing happened. 1
After approximately eight years, the INS placed the
petitioner in removal proceedings. The petitioner conceded
removability and cross-applied for asylum, withholding of removal,
and relief under CAT.
The IJ held an evidentiary hearing on October 6, 2003.
Because he found the petitioner credible, we accept as true the
petitioner's testimony about the historical facts. See Bocova v.
Gonzales, 412 F.3d 257, 262 (1st Cir. 2005).
The petitioner was born and raised in Guatemala — a
country plagued for decades by civil strife. In 1991, the
petitioner, then sixteen years of age, encountered an armed
guerilla faction in the hills near his village. The guerillas
attempted to recruit him into their ranks (this was a familiar
tactic of the guerillas, who believed that young men were easily
led). They threatened the lives of the petitioner and his family
in the event that he resisted their blandishments.
The petitioner felt that he was trapped between a rock
and a hard place. He had no desire to join the guerillas, but he
knew of young men who had been killed when they rebuffed the
guerillas' overtures. Rather than casting his lot with the
guerillas or, alternatively, reporting the encounter to the
government, the petitioner elected to flee. Within days, he and
his five brothers left Guatemala for the United States, where he
has resided ever since. Even though his parents and two sisters
remain in the village in which he was raised, they have warned him
not to return.
The petitioner also testified about his three uncles, all
of whom died from gunshot wounds. One shooting occurred in 1974
(before the petitioner was born); the other two shootings occurred
after the petitioner had fled the country. Although the petitioner
speculated that the guerillas had committed all three murders, the
record contains no supporting facts and the responsible parties
have never been apprehended.
Moving from the past to the future, the petitioner stated
that he fears that the guerillas will kill him if he returns to
Guatemala. He premised this fear on the past actions of the
guerillas, the warnings received from his family, and the prospect
of retaliation because he had resisted the guerillas' efforts to
enlist him in their cause.
The IJ denied the application for asylum, withholding of
removal, and relief under CAT (although he did grant a request for
voluntary departure). Without making any finding as to whether the
petitioner had established past persecution, the IJ went directly
to the issue of future persecution and concluded that the
petitioner lacked a well-founded fear of future persecution because
conditions in Guatemala had changed dramatically since 1991. The
IJ based his conclusion largely on the United States Department of
State Country Report on Human Rights Conditions for the Country of
Guatemala for the year 2002 (the Country Conditions Report). Among
other things, that report took the position that peace accords
signed in 1996 had brought down the final curtain on the armed
conflict between the Guatemalan government and the guerillas.
The petitioner prosecuted a timely appeal before the BIA.
In it, he claimed that the IJ's rulings were arbitrary, capricious,
and an abuse of discretion. On February 28, 2005, the BIA
summarily affirmed the decision. This timeous petition for
judicial review followed. We have jurisdiction under 8 U.S.C. §
When the BIA summarily affirms an IJ's decision, we
"review directly the IJ's decision as if it were the decision of
the BIA." Jupiter v. Ashcroft, 396 F.3d 487, 490 (1st Cir. 2005).
We must respect the IJ's findings as long as they are "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 this deferential "substantial evidence" standard, a
determination will be upheld unless the record is such as to compel
a reasonable factfinder to arrive at a contrary determination. See
Da Silva v. Ashcroft, 394 F.3d 1, 4-5 (1st Cir. 2005); see also 8
U.S.C. § 1252(b)(4)(B).
Against this backdrop, we turn to the petitioner's asylum
claim. To qualify for asylum, an alien must establish that he is
a refugee within the meaning of the Immigration and Nationality Act
(the Act). See Negeya v. Gonzales, 417 F.3d 78, 82 (1st Cir.
2005); see also 8 U.S.C. § 1158(b)(1). The Act defines a "refugee"
as a person who is unable or unwilling to return to his country of
nationality "because of persecution or a well-founded fear of
future prosecution on account of race, religion, nationality,
membership in a particular social group, or political opinion." 8
U.S.C. § 1101(a)(42)(A). Thus, an asylum seeker must prove either
past persecution based on one of these five enumerated grounds
(thereby engendering a rebuttable presumption of future
persecution) or a well-founded fear of future persecution. See
Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120, 124 (1st Cir. 2005).
When the IJ makes a finding of past persecution, a
presumption of future persecution arises and the burden shifts to
the government to rebut that presumption. See id. In such a
situation, the government must show by a preponderance of the
evidence either (i) that "[t]here has been a fundamental change in
circumstances such that the applicant no longer has a well-founded
fear of persecution in the applicant's country of nationality" or
(ii) that "the applicant could avoid future persecution by
relocating to another part of the applicant's country, and . . . it
would be reasonable to expect the applicant to do so." 8 C.F.R. §
208.13(b)(1)(i)(A)-(B); see Quevedo v. Ashcroft, 336 F.3d 39, 44
(1st Cir. 2003).
If the IJ does not find past persecution, the asylum
seeker must affirmatively demonstrate a well-founded fear of future
persecution, unaided by any presumption. See Negeya, 417 F.3d at
82. Such a showing involves both subjective and objective
components. Id. The first component entails a showing that the
asylum seeker's fear of future persecution is genuine. Id. at 83.
The second component entails a showing that this fear is
objectively reasonable. Id.
In the case at hand, the IJ intentionally bypassed a key
element of the analysis: a finding on the issue of past
persecution. The IJ stated that:
Even if the Court were able to reach the
conclusion that the respondent had suffered
past persecution . . . [it] would be compelled
to find that the circumstances have changed
within the country of Guatemala such that the
respondent no longer has a well-founded fear
of future persecution.
The existence vel non of past persecution determines
which party must carry the devoir of persuasion on the issue of
future persecution. Compare, e.g., Quevedo, 336 F.3d at 42-43
(shifting the burden to the government to rebut a well-founded fear
of persecution where the petitioner had shown past persecution),
with, e.g., Zheng v. Gonzales, 416 F.3d 97, 99 (1st Cir. 2005)
(keeping the burden on the petitioner to establish future
persecution without the aid of any presumption when the petitioner
had failed to show past persecution). Consequently, it is
sometimes risky business to make a determination on the issue of
future persecution without first answering the logically antecedent
question of whether past persecution has occurred. See, e.g.,
Zarouite v. Gonzales, ___ F.3d ___, ___ (1st Cir. 2005) [No. 04-
1541 slip op. at 10] (remanding for further proceedings because the
IJ had taken a shortcut and decided the issue of future persecution
without first deciding the issue of past persecution).
Risky or not, such a shortcut often is permissible. In
some cases — Zarouite is a good example — the issue of future
persecution is close, so the allocation of the burden of proof
matters. In other cases, however, the issue of future persecution
is so clear-cut that the allocation of the burden of proof does not
matter. See, e.g., Yatskin v. INS, 255 F.3d 5, 10 (1st Cir. 2001).
The instant case is of the latter genre; even if we were to assume,
for arguments's sake, that the petitioner is able to establish past
persecution and afford him the benefit of the ensuing presumption,
we still would conclude that the government has provided enough
evidence both to rebut the presumption and to show that there is no
sufficient likelihood that the petitioner will face persecution
should he be returned to Guatemala. We explain briefly.
The most persuasive evidence that rebuts the presumption
of future persecution in this case is the Country Conditions
Report. The petitioner argues that abstract evidence of
generalized changes in country conditions, without more, cannot
rebut a presumption of a well-founded fear of future persecution.
We agree with that premise: to be effective, evidence of changed
country conditions must negate a petitioner's particular fear. See
Quevedo, 336 F.3d at 44.
The evidence here passes muster under that standard. The
petitioner testified that he fears death at the hands of the
guerillas should he return home. The Country Conditions Report
addresses this allegation directly: it documents the signing of the
1996 peace accords and verifies that those accords not only ended
the civil war but also resulted in the assimilation of the
guerillas into the government. Because the guerillas are no longer
a separate, out-of-power faction in Guatemala, they no longer need
to engage in militant activities — and there is no evidence that
militant activities (and, specifically, forced recruitment
practices) persist. What evidence there is points in the opposite
direction; for example, the Country Conditions Report explicitly
states that no documented instances of politically motivated
disappearances took place in Guatemala in the year in question
The petitioner nonetheless mounts a two-pronged attack on
the IJ's use of the Country Conditions Report. First, he posits
that, as a matter of law, the IJ erred in relying upon the report
at all. Second, he asseverates that, as a matter of fact, the
report demonstrates that conditions have not changed in such a way
as to palliate his fear of future persecution. We address each
prong of his attack separately.
The petitioner's first argument relies exclusively on a
line of Ninth Circuit cases, which he says hold that a country
conditions report can never supply the individualized analysis
required for a showing of changed country conditions. See, e.g.,
Molina-Estrada v. INS, 293 F.3d 1089, 1096 (9th Cir. 2002)
(suggesting that "a State Department report on country conditions,
standing alone, is not sufficient to rebut the presumption of
future persecution"); Chand v. INS, 222 F.3d 1066, 1079 (9th Cir.
2000) (holding that a determination of changed country conditions
requires an individualized analysis). The petitioner reads these
cases through rose-colored glasses. Taken in context, we do not
think that they stand for a bright-line rule, applicable across the
board. And to the extent (if at all) that they support the
petitioner's absolutist argument, we decline to follow them.
The State Department has widely acknowledged expertise in
discerning the conditions that prevail in foreign lands. See
Negeya, 417 F.3d at 84; Gonahasa v. INS, 181 F.3d 538, 542 (4th
Cir. 1999). Thus, State Department reports are generally probative
of country conditions. See, e.g., Zarouite, ___ F.3d at ___ [slip
op. at 6]. When such a report convincingly demonstrates material
changes in country conditions that affect the specific
circumstances of an asylum seeker's claim, the report may be
sufficient, in and of itself, to rebut the presumption of future
persecution. See, e.g., Negeya, 417 F.3d at 84 (finding that the
petitioner's fear of future persecution was no longer reasonable in
the face of a country conditions report finding no instances of
forced exile during the relevant period); Mullai v. Ashcroft, 385
F.3d 635, 639 (6th Cir. 2004) (concluding that a country conditions
report documenting a new government's rise to power adequately
evinced a material change in country conditions). Such focused
evidence is to be distinguished from cursory statements or broadbrush
generalizations about changed country conditions. See
Zarouite, ___ F.3d at ___ [slip op. at 8].
In this instance, the petitioner was very specific in
stating that he feared retaliation by the guerillas because he had
frustrated their recruitment efforts. The Country Conditions
Report addressed this issue head-on. It explained that the peace
accords had ended the civil war and that, from and after 1996,
there was no credible evidence that the guerillas had continued
their militant activities. Because this information is both
reliable and focused — it addresses the precise subject matter of
the petitioner's claimed fear — it suffices, if credited by the
factfinder and not effectively offset by other evidence, to rebut
any presumption of future persecution at the hands of the
We note that the other information in the record, taken in 2
its totality, helps to rebut the presumption that persecution by
the guerillas is a reality in Guatemala today. For example, the
fourteen-year time lapse since the petitioner's single
confrontation with the guerillas works against the presumption of
future persecution; it is questionable whether members of the
guerilla group would even recognize the young man who, on only one
occasion, declined their invitation.
guerillas. Consequently, the IJ did not err as a matter of law in 2
giving decretory significance to the Country Conditions Report.
The petitioner's fallback position is that the IJ erred
in his reading of the Country Conditions Report. This argument
relies on the sad fact, made manifest by the Country Conditions
Report, that human rights abuses still abound in Guatemala.
Whatever superficial appeal such an argument may possess, it
misinterprets the meaning of "persecution."
Although the Act does not formally define the term
"persecution," we have held that persecution requires more than a
showing of either episodic violence or sporadic abuse. See, e.g.,
Bocova, 412 F.3d at 263. To qualify as persecution, human rights
abuses must be systematic. See id. They also must be causally
connected to one of the five enumerated grounds. See 8 U.S.C. §
Those requirements are not satisfied here. While the
Country Conditions Report acknowledges that violence and human
rights abuses still occur in Guatemala, it also attests that the
threat of violence afflicts all Guatemalans to a roughly equal
extent, regardless of their membership in a particular group or
class. Accordingly, that threat will not support a finding of a
well-founded fear of future persecution. See Quevedo, 336 F.3d at
44 ("This Circuit has rejected the contention that pervasive nonpolitical
criminality in Guatemala constitutes a basis for
asylum."); see also Harutyunyan v. Gonzales, 421 F.3d 64, 70 (1st
That ends this aspect of the matter. With sufficient
evidence of changed country conditions and no error in the IJ's
reliance on or interpretation of the Country Conditions Report,
there is no principled basis for upsetting the denial of asylum.
What we have written to this point also disposes of the
petitioner's withholding of removal claim. That claim places a
"more stringent burden of proof on an alien than does a counterpart
claim for asylum." Rodriguez-Ramirez, 398 F.3d at 123. While
eligibility for asylum requires a well-founded fear of future
persecution, withholding of removal requires that the alien show a
clear probability of future persecution. See Aguilar-Solis v. INS,
168 F.3d 565, 569 n.3 (1st Cir. 1999). It follows, then, that,
because the petitioner's claim for asylum fails, so too does his
counterpart claim for withholding of removal.
The petitioner's brief contains no developed argumentation 3
anent his CAT claim. Therefore, we deem that claim abandoned. See
Nikijuluw v. Gonzales, ___ F.3d ___, ___ n.3 (1st Cir. 2005) [No.
05-1452, slip op. at 6 n.3]; Makhoul v. Ashcroft, 387 F.3d 75, 82
(1st Cir. 2004).
We need go no further. On the basis of the foregoing, 3
the BIA's order is unimpugnable.
The petition for judicial review is denied.
05-1330-01A.pdf (application/pdf Object)
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