Hernandez Lima v. Lynch , 836 F.3d 109 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 15-1983
RONALDO HERNANDEZ-LIMA,
Petitioner,
v.
LORETTA E. LYNCH,
Attorney General of the United States,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Howard, Chief Judge,
Lynch and Barron, Circuit Judges.
Kevin MacMurray and MacMurray & Associates on brief for
petitioner.
D. Nicholas Harling, Trial Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, Benjamin
C. Mizer, Principal Deputy Assistant Attorney General, Civil
Division, and Anthony P. Nicastro, Acting Assistant Director,
Office of Immigration Litigation, on brief for respondent.
September 7, 2016
LYNCH, Circuit Judge. Ronaldo Hernandez-Lima petitions
for review of the Board of Immigration Appeals' ("BIA") decision
to dismiss his appeal of an immigration judge's ("IJ") denial of
his application for withholding of removal. Hernandez-Lima argued
that he suffered past persecution and faced a clear probability of
future persecution in Guatemala through threats, violence, and
extortion on account of both his political opinion and his
membership in a particular social group. He defined his political
opinion with reference to his participation in the Democratic
Christian Party's ("DCP") campaign around 1998 or 1999, and he
defined his particular social group as "members of a family who
were persecuted by gang members." The BIA declared him ineligible
for withholding of removal, finding that he failed to establish
that any harm he had suffered or would likely suffer in the future
was both (1) severe enough to constitute persecution and (2)
related to a statutorily protected ground.
Hernandez-Lima now argues that the record evidence would
have compelled a reasonable factfinder to reach a contrary
conclusion. We deny his petition.
I.
Hernandez-Lima is a native and citizen of Guatemala. On
or about November 13, 2004, he was admitted to the United States
pursuant to a B-2 tourist visa authorizing him to remain in the
country until May 12, 2005. However, he overstayed this
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authorization, and on January 4, 2011, the Department of Homeland
Security served him with a Notice to Appear, charging him with
removability pursuant to 8 U.S.C. § 1227(a)(1)(B).1
In pleadings submitted on February 22, 2011 and April 7,
2011, Hernandez-Lima indicated his intent to apply for asylum,
withholding of removal, protection under the Convention Against
Torture ("CAT"), and, in the alternative, voluntary departure. He
ultimately did not apply for asylum, but on December 10, 2013, the
IJ entertained Hernandez-Lima's other three applications for
relief at a hearing during which he testified. The following
summarizes the record evidence derived from that testimony and the
ensuing proceedings.
Around 1998 or 1999, when Hernandez-Lima was a high
school student in Guatemala, he participated in the DCP's campaign
by attending meetings and putting up posters. After an opposing
party prevailed in the elections, its members began sending
threatening messages, through third parties, to DCP members.
Specifically, Hernandez-Lima was told that members of the opposing
party had said they were going to kill him for supporting the DCP.
Hernandez-Lima's father received similar messages during his many
years of work for the municipality, but they never materialized
1 Because Hernandez-Lima conceded his removability on
these grounds, we do not concern ourselves with the inconclusive
record evidence as to the legality of his two prior entries into
the United States.
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into physical harm. The messages Hernandez-Lima received never
materialized into physical harm either. Hernandez-Lima cites
these "political problems" as the reason he left Guatemala for the
United States in June 2001.
In November or December 2003, he returned to Guatemala
to see his father, who had become ill, but he did not visit his
hometown because "[t]hings [had] gotten worse" there. On February
14, 2004, he traveled back to the United States and remained there
for five to six months before again returning to Guatemala in
August 2004, this time to see his mother, who had also become ill.
In September 2004, while still in Guatemala, he was driving toward
his hometown when men with covered faces pulled their car in front
of his and shot him. After receiving treatment in a hospital, he
traveled back to the United States, entering on November 13, 2004.
Hernandez-Lima testified that he could not identify his
assailants because he could not see their faces, nor could he be
sure of their motive because they did not say anything. But he
further testified that he believed his shooting was tied to his
past political activities and to efforts to extract money from his
family. He speculated that his old political opponents were behind
the attack because he "never had any problem with anybody else,"
and he speculated that his attackers sought money from his family
because a few of his relatives had been victims of extortion.
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As Hernandez-Lima explained, after his mother's death in
2010, he learned that gangs had been threatening to "kill somebody
in [her] family" if she did not pay them money and that she had
obliged. Additionally, he explained that his cousin had faced
similar threats but had refused to pay and was subsequently
murdered along with his wife and her sister. Hernandez-Lima
expressed fear that, if he were removed to Guatemala, he would
also face extortion and possibly be killed. When asked who he
feared would harm him in these ways, he responded, "There's a lot
of criminal activity happening in [Guatemala], gangs, political
parties."
Despite finding Hernandez-Lima credible, the IJ denied
him most of the relief he sought. First, the IJ denied his
application for withholding of removal, reasoning that he (1)
failed to establish that he suffered past persecution on account
of a protected ground because he did not show sufficient harm from
the threats he received or a motive for the shooting he endured,
and (2) failed to establish a clear probability of future
persecution on account of a protected ground because all he showed
was a possibility that he would be the victim of a crime unrelated
to any protected ground. Second, the IJ denied his application
for protection under the CAT because he failed to establish that
Guatemalan officials would acquiesce in or turn a blind eye to any
torture he might face. Finally, the IJ granted his application
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for voluntary departure because he complied with the statutory
requirements.
Hernandez-Lima appealed the denial of his application
for withholding of removal to the BIA, which affirmed the IJ's
findings and dismissed the appeal on July 30, 2015.2 The BIA
rejected Hernandez-Lima's argument that he faced, and more likely
than not would face again, persecution in Guatemala through
threats, violence, and extortion on account of two protected
grounds: (1) his political opinion and (2) his membership in a
particular social group, defined as "members of a family who were
persecuted by gang members." The BIA's analysis proceeded in three
steps.
First, the problems Hernandez-Lima experienced that were
arguably on account of a protected ground -- the threats he
received from political opponents -- did not cause sufficient harm
to constitute past persecution. Second, the problems Hernandez-
Lima experienced that arguably did cause sufficient harm to
constitute past persecution -- the shooting and his family's
extortion at the hands of "criminal gang members" -- were not on
account of a protected ground. And third, to the extent Hernandez-
Lima was likely to face conditions of crime and violence upon
2 Hernandez-Lima did not appeal the IJ's denial of his
application for protection under the CAT; accordingly, the BIA
deemed the issue waived, and it has not been raised before us.
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returning to Guatemala, it was only because those conditions affect
the population at large -- not on account of a protected ground.
The BIA then ordered Hernandez-Lima removed from the United
States.3
This petition for review followed.
II.
Where, as here, the petition challenges only the
agency's findings of fact, see Sompotan v. Mukasey, 533 F.3d 63,
68 (1st Cir. 2008), we conduct our entire review under the "highly
deferential" substantial evidence standard, which requires us to
"uphold the BIA's determination as long as [it] is 'supported by
reasonable, substantial, and probative evidence,'" Lopez de
Hincapie v. Gonzales, 494 F.3d 213, 218 (1st Cir. 2007) (quoting
INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)). "That the record
supports a conclusion contrary to that reached by the BIA is not
enough to warrant upsetting the BIA's view of the matter; for that
to occur, the record must compel the contrary conclusion." Id.
An alien can seek withholding of removal defensively in
response to a charge of removability if "the alien's life or
freedom would be threatened in [the] country [to which the alien
3 The BIA did not reinstate the 60-day voluntary departure
period that the IJ had granted Hernandez-Lima, as he had failed to
timely submit sufficient proof that he had posted the voluntary
departure bond on which the grant was conditioned. See 8 C.F.R.
§ 1240.26(c)(3)(ii).
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would be removed] because of the alien's race, religion,
nationality, membership in a particular social group, or political
opinion." 8 U.S.C. § 1231(b)(3)(A). Hernandez-Lima bears the
burden of establishing his eligibility for this relief by
demonstrating that it is "more likely than not" that he will be
persecuted on account of one of the five protected grounds if
removed to Guatemala. See 8 C.F.R. § 1208.16(b)(2); see also,
e.g., Costa v. Holder, 733 F.3d 13, 16 (1st Cir. 2013) (equating
the standards "more likely than not" and "a clear probability").
Alternatively, he can demonstrate that he has already suffered
such persecution in Guatemala and thereby create a rebuttable
presumption that he will suffer the same upon removal. See 8
C.F.R. § 1208.16(b)(1). "These two methods are, of course,
commonly referred to as past and future persecution." Sompotan,
533 F.3d at 68. Critically, each requires a showing of both harm
sufficient to amount to persecution and a "nexus" between the
alleged persecution and one of the statutorily protected grounds.
Id.
III.
Substantial evidence supports the BIA's finding that
Hernandez-Lima did not establish past persecution, despite
presenting evidence of three allegedly qualifying experiences.
First, the BIA had substantial evidence to reject the
claim that the threatening messages he received prior to leaving
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Guatemala in 2001 constituted persecution. Hernandez-Lima
testified that he did not receive threats directly; instead, third
parties told him that members of an opposing political group had
said they were going to kill him. He also testified that his
father had received similar messages over the course of many years
and that such messages never materialized into physical harm to
either of them.4
Death threats rise to the level of persecution only when
"so menacing as to cause significant actual suffering or harm."
Vilela v. Holder, 620 F.3d 25, 29 (1st Cir. 2010) (quoting Bonilla
v. Mukasey, 539 F.3d 72, 77 (1st Cir. 2008)). Evidence that such
threats were entirely empty "plainly supports [a] determination"
that they did not meet that standard. Ruiz v. Mukasey, 526 F.3d
31, 37 (1st Cir. 2008). Presented with evidence that threats of
physical harm were never fulfilled -- "a pertinent datum . . .
deserving of weight," id. -- and a total dearth of evidence that
they caused any non-physical harm or suffering to weigh against
it, the BIA had a substantial basis for concluding that Hernandez-
4 Hernandez-Lima's assertion that he "testified that
before he came to the United States for the first time, he was
shot . . . by political opponents" mischaracterizes the record
evidence. Hernandez-Lima never testified to that effect; to the
contrary, he testified that he left Guatemala in June 2001 and
that the shooting occurred in September 2004, during his second
trip back to Guatemala.
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Lima failed to meet his burden of proving that the threats he
received were sufficiently menacing.
Importantly, we do not read the BIA's opinion as
suggesting that an applicant for relief from removal claiming to
have been persecuted by threats is required to make a showing of
physical harm. Such a per se rule would directly conflict with
our precedent. See, e.g., Ruiz, 526 F.3d at 37 ("[A]n applicant
. . . is not obliged to show the infliction of physical harm in
order to carry her burden of proving past persecution."). We
reiterate simply that the absence of physical harm weighs against
a finding that threats amounted to persecution. While never
dispositive, this factor may be determinative where, as here, it
substantially outweighs any countervailing evidence of non-
physical harm or suffering. Reasonable factfinders may differ in
how much weight they assign the absence of physical harm in a given
case, but as we have said, “hollow threats, . . . without more,
certainly do not compel a finding of past persecution." Moreno v.
Holder, 749 F.3d 40, 44 (1st Cir. 2014) (emphasis added) (citations
omitted).
Second, the BIA had substantial evidence to reject the
claim that the September 2004 shooting occurred on account of
either proffered protected ground. Hernandez-Lima testified that
he did not know who shot him or why they did it. He merely
speculated that the shooters may have targeted him for his past
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political activities and in relation to the extortion of his family
members.
An alien bears the burden of differentiating his alleged
persecutors from "common criminals" by establishing a nexus
between the harm they inflicted and a protected ground. Lopez de
Hincapie, 494 F.3d at 219. Thus, while Hernandez-Lima did not
need to identify his attackers, he did need "to furnish some
credible evidence of the[ir] motivation." Id.; cf. Cordero-Trejo
v. INS, 40 F.3d 482, 488 (1st Cir. 1994) (vacating a BIA decision
denying relief where the attackers' identities were unknown but
their motivation was reflected in their mid-attack demands that
the petitioner discontinue his political activities).
In Lopez de Hincapie, we found the petitioner's
testimony as to what "she thought" motivated her antagonists
insufficient to carry her burden and certainly insufficient to
"compel a finding that the [alleged persecution was] in any way
associated with either political opinion or social group
membership." 494 F.3d at 219. Hernandez-Lima similarly offered
only unsupported theories as to motivation and thus failed to build
a record that compelled a finding in his favor. See Morgan v.
Holder, 634 F.3d 53, 59 (1st Cir. 2011) ("[A]n alien's speculation
or conjecture, unsupported by hard evidence, cannot compel a
finding of the necessary link between alleged persecution and a
statutorily protected ground."). The BIA was free to reject his
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speculation and to conclude that he failed to establish the
requisite nexus.
Third, the BIA had substantial evidence to reject the
claim that, through the extortion and violence that some of his
relatives experienced, Hernandez-Lima suffered from persecution on
account of his membership in a particular social group, defined as
"members of a family who were persecuted by gang members." To
prevail on such a claim, Hernandez-Lima needed to establish, inter
alia, that his relatives were harmed because of their family
membership. See Ruiz, 526 F.3d at 38. However, he merely
testified that they were extorted for money and alluded in his
brief to the belief that they had been targeted as a family.
Here, again, Hernandez-Lima offered only an unsupported
theory that any harm he suffered was on account of a protected
ground. And again, the BIA was not compelled to accept his
speculation. See Lopez v. Lynch, 626 F. App'x 12, 16 (1st Cir.
2015) (unpublished opinion) (testimony that the petitioner's
brother and cousins were killed and that his brother-in-law was
kidnapped, without more, "[did] not compel the conclusion 'that
the unfortunate experiences undergone by the petitioner and [his]
family were more than isolated occurrences, unrelated to family .
. . membership'" (second alteration in original) (quoting Ruiz,
526 F.3d at 37)).
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Moreover, a threat that solicits money "invite[s] the
inference that [its maker acts out] of greed, not because of [the
petitioner's] political opinion or membership in a particular
social group." Lopez de Hincapie, 494 F.3d at 219. The BIA made
precisely that inference when it concluded that Hernandez-Lima's
relatives were victims of extortion by criminal gangs who sought
money rather than to harm them because of their family membership.
That inference was especially plausible in light of Hernandez-
Lima's failure to marshal any evidence inconsistent with it. See
id. The BIA's choice of a plausible inference "is by definition
supported by substantial evidence." Ruiz, 526 F.3d at 37.
Substantial evidence also supports the BIA's finding
that Hernandez-Lima did not establish a clear probability of future
persecution. Because his argument that he would suffer from
further threats, violence, and extortion of the kind he experienced
in the past failed on the basis of the BIA's reasonable finding
that those incidents did not qualify as persecution on account of
a protected ground, all that remained was his freestanding claim
of exposure to widespread crime in Guatemala. The BIA correctly
determined that such a claim fails the nexus requirement.
At most, Hernandez-Lima established that he faced a risk
of danger from general conditions of strife to which all would be
vulnerable, not a clear probability that he would be victimized on
account of a protected ground. See Archila v. Holder, 495 F. App'x
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98, 101 (1st Cir. 2012) (unpublished opinion). This is true even
if the fact that Hernandez-Lima is, as he suggests, "well-known"
and perceived as "wealthy" would make him more likely than others
to be victimized. After all, susceptibility to "economic
terrorism" and other crimes is not a protected ground. López-
Castro v. Holder, 577 F.3d 49, 54 (1st Cir. 2009). Therefore,
there is no basis for upsetting the BIA's conclusion. See Archila,
495 F. App'x at 101 ("Although [the petitioner's] fear of returning
to the violent conditions that plague Guatemala is understandable,
the absence of the requisite statutory nexus is fatal to . . . his
. . . withholding of removal claim[].").
The petition for review is denied.
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