Lopez v. Holder, Jr. , 626 F. App'x 12 ( 2015 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 14-2034
GIKLIF ELIAS LOPEZ,
Petitioner,
v.
LORETTA E. LYNCH, ATTORNEY GENERAL,*
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Thompson, Selya, and Kayatta,
Circuit Judges.
Michael D. Greenberg on brief for petitioner.
Anthony J. Messuri, Trial Attorney, Office of Immigration
Litigation, Benjamin C. Mizer, Acting Assistant Attorney General,
Civil Division, and Leslie McKay, Assistant Director, Office of
Immigration Litigation, on brief for respondent.
*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Loretta E. Lynch has been substituted for former Attorney General
Eric H. Holder, Jr. as the respondent.
September 16, 2015
THOMPSON, Circuit Judge. Petitioner Giklif Elias Lopez
("Lopez"), a native and national of Colombia, seeks judicial review
of a final order of the Board of Immigration Appeals ("BIA")
affirming the immigration judge's denial of Lopez's application
for withholding of removal and for voluntary departure. After
careful consideration, we deny Lopez's petition for review.
Background
Lopez entered the United States without admission or
parole sometime in late 2000. While in the United States Lopez
had a son, born in Connecticut on November 5, 2004. In 2005, Lopez
left the United States for Canada, where his sister and brother-
in-law had been granted asylum. Lopez filed his own application
for asylum in Canada but returned to the United States voluntarily
five months later because he missed his young son. Lopez does not
know the status of his Canadian asylum application, which he left
pending upon his return to United States. After returning to the
United States in 2006, Lopez remained in the country without
interruption.
On May 6, 2010, Lopez was issued a Notice to Appear. In
subsequent written filings with the immigration court, Lopez,
through counsel, conceded removability but applied for asylum,
withholding of removal and, in the alternative, voluntary
departure. In a hearing before an Immigration Judge ("IJ") on
April 11, 2011, however, Lopez's counsel clarified that Lopez was
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not pursuing an asylum claim and was applying for withholding of
removal and voluntary departure only.
In support of his application, Lopez testified before a
different IJ on August 19, 2013. Lopez claimed that he feared the
violence in Colombia, specifically guerillas killing and
kidnapping people in his hometown of Cali, Colombia. Lopez
testified that while living in Colombia he, and other members of
his family, were targeted by the guerillas for being part of "a
group of black communities" known as "Afro-[Colombians]."1 At the
hearing, Lopez described the "Afro-[Colombians]" as "a group of
people that gets together to help each other." Lopez explained
that this "Afro-[Colombian]" group held meetings in a private
residence in Colombia.
Lopez recounted that sometime in 1994 or 1995 guerillas
sent him and one of his brothers threatening letters because of
their membership in this "Afro-[Colombian]" group. According to
Lopez, one of his brothers, still residing in Colombia, continues
to receive threatening letters from the guerillas. Lopez did not
provide specific details about the nature of these threats or the
content of the letters sent to him and his brother.
1
In the transcript of these proceedings, as well as in Lopez's
filings before the BIA and here, "Colombia" and "Afro-Colombian"
are frequently spelled "Columbia" and "Afro-Columbian." We have
used "Colombia" and "Afro-Colombian" throughout.
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Aside from threats, Lopez was never harmed or physically
injured while living in Colombia. But, in 1996, while playing
basketball with friends, one of Lopez's brothers was shot and
killed when guerillas opened fire on the basketball court. Lopez
testified that three other people were killed in that shooting.
In addition, Lopez's brother-in-law, who was later granted asylum
in Canada, was kidnapped by guerillas sometime in 1999 or 2000.
Lopez testified that he did not know what motivated the guerillas'
attacks on his brother and brother-in-law, but he noted that his
brother-in-law had worked in the government. In approximately
2011, two of Lopez's cousins were also killed by a group of
guerillas, who shot into a group of people playing soccer. Despite
these incidents, Lopez acknowledged that his mother and four of
his siblings continue to live in Colombia.
In an oral opinion issued the same day as the hearing,
the IJ denied Lopez's application for withholding of removal and
voluntary departure.2 The IJ concluded that Lopez's claim failed
for lack of corroborating evidence, noting that Lopez had failed
to provide any (admittedly available) corroboration despite the
fact that he had been subject to removal proceedings since 2010
2Before the BIA, Lopez did not challenge the IJ's denial of
his application for voluntary departure; nor does he contest it
here.
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and the removal hearing had been scheduled for over a year.3
Specifically, the IJ noted Lopez's failure to provide his brother's
death certificate, copies of the threatening letters sent to him
or to his brother, or, indeed, any letters from his family
corroborating any aspect of his claim. The IJ further concluded
that even if Lopez was deemed credible and had provided
corroborating evidence, he had nevertheless failed to demonstrate
any past or likely future persecution.
Lopez appealed to the BIA on September 6, 2013, arguing
that he "fear[ed] harm due to the crime and violence in his
country" and persecution based, at least in part, on his
"membership in a particular social group." Lopez also argued, for
the first time, that he faced persecution based on his family
membership.
The BIA rejected Lopez's appeal and affirmed the IJ's
findings and decision. In addition, it concluded that Lopez had
failed to establish that he had been, or was likely to be, targeted
due to his family membership. This timely petition for judicial
review followed.
Analysis
Before us, Lopez contends that the BIA erred first when
it determined that Lopez had not met his burden of proving he would
3
Lopez was represented by counsel throughout his removal
proceedings.
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be persecuted upon his return to Colombia. Second, Lopez argues
that his case should be remanded because the IJ and BIA failed to
understand that Lopez's claim was based on race.
In immigration cases, this court ordinarily reviews the
final decision of the BIA, "[b]ut where, as here, the BIA accepts
the IJ's findings and reasoning yet adds its own gloss, we review
the two decisions as a unit." Moreno v. Holder, 749 F.3d 40, 43
(1st Cir. 2014) (quoting Xian Tong Dong v. Holder, 696 F.3d 121,
123 (1st Cir. 2012)). We review agency findings of fact, including
credibility determinations, under the familiar substantial
evidence standard. Chhay v. Mukasey, 540 F.3d 1, 5 (1st Cir.
2008). Under this deferential standard, we will accept all
findings of fact "as long as those findings are supported by
reasonable, substantial, and probative evidence on the record
considered as a whole." Id. (quoting INS v. Elias–Zacarias, 502
U.S. 478, 481 (1992)).
To qualify for withholding of removal, Lopez must
demonstrate that, if repatriated, he faces a clear probability of
future persecution because of his race, religion, nationality,
membership in a particular social group, or political opinion.
Costa v. Holder, 733 F.3d 13, 16 (1st Cir. 2013). "This burden
can be carried in two ways: the alien can show either that [he]
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has suffered past persecution4 (giving rise to a rebuttable
presumption of future persecution) or that, upon repatriation, a
likelihood of future persecution independently exists." Arévalo-
Girón v. Holder, 667 F.3d 79, 82 (1st Cir. 2012). Either way,
Lopez must establish that it is more likely than not that he will
be persecuted in Colombia on account of his "Afro-Colombian" or
family membership. See id.
In arguing that the BIA erred when it concluded that
Lopez did not face "a risk of persecution" upon his return to
Colombia, Lopez does not challenge the agency's determination that
he failed to produce sufficient corroborating evidence. Rather,
he seems (because the petition is far from a beacon of clarity) to
argue that, because the IJ made no explicit adverse finding of
credibility, Lopez's testimony, standing alone, should have been
sufficient to sustain his burden of proof. But the agency has the
right to require that Lopez proffer more than uncorroborated
statements if such corroboration was readily available. 8 U.S.C.
§ 1158(b)(1)(B)(ii) ("Where the trier of fact determines that the
applicant should provide evidence that corroborates otherwise
credible testimony, such evidence must be provided unless the
4To prove persecution, Lopez "must demonstrate a certain
level of serious harm (whether past or anticipated), a sufficient
nexus between that harm and government action or inaction, and a
causal connection to one of the statutorily protected grounds."
Carvalho-Frois v. Holder, 667 F.3d 69, 72 (1st Cir. 2012).
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applicant does not have the evidence and cannot reasonably obtain
the evidence."). And "a reviewing court must accept the IJ's
determinations with respect to the persuasiveness vel non of the
alien's testimony, the availability of corroborating evidence, and
the effect of non-production unless the record compels a contrary
conclusion." Chhay, 540 F.3d at 6.
Here, the IJ required something more from Lopez than his
uncorroborated statements. Lopez offered no such evidence.5 Nor
did he provide an explanation for his failure to provide
corroboration that he admitted was available to him. Consequently,
the agency determined that Lopez had failed to demonstrate that he
had suffered, or was likely to face, persecution in Colombia.
Nothing in the record compels a different conclusion.
Although Lopez testified that he had received threatening letters
while living in Colombia, he provided no detail regarding these
letters and he indicated on the record that he was never physically
harmed. "[H]ollow threats, . . . without more, certainly do not
compel a finding of past persecution." Moreno, 749 F.3d at 44
(quoting Ang v. Gonzales, 430 F.3d 50, 56 (1st Cir. 2005)).
5On appeal, Lopez seeks to rely on evidence that was not
presented to the agency, but we may not consider evidence not
contained in the administrative record. 8 U.S.C. § 1252 (b)(4)(A)
(noting that "the court of appeals shall decide the petition only
on the administrative record on which the order of removal is
based").
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Moreover, Lopez did not tie the violence perpetrated against his
family to any statutorily protected ground or "weav[e] [his]
family's narrative into anything resembling a pattern of
systematic mistreatment." Ruiz v. Mukasey, 526 F.3d 31, 37 (1st
Cir. 2008). In fact, Lopez testified that he did not know why his
brother was killed or why his brother-in-law was kidnapped, and
that his cousins were killed because they happened to be playing
soccer when guerillas opened fired on the crowd. This testimony
does not compel the conclusion "that the unfortunate experiences
undergone by the petitioner and [his] family were more than
isolated occurrences, unrelated to family [or Afro-Colombian]
membership." Id.; Tay-Chan v. Holder, 699 F.3d 107, 112-13 (1st
Cir. 2012) ("[F]ear of harm from general conditions of violence
and civil unrest does not even establish a well-founded fear of
persecution, the asylum standard, much less a clear probability of
persecution, the withholding of removal standard.").
Perhaps, the agency "could have teased out of the
evidence something resembling a pattern of persecution" but
"[g]iven two plausible but conflicting inferences . . . the
[agency's] choice between those inferences is by definition
supported by substantial evidence." Ruiz, 526 F.3d at 37.
As for Lopez's second appellate argument that the IJ and
the BIA failed to understand that his claims were based on race,
this issue is not properly before us. Makhoul v. Ashcroft, 387
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F.3d 75, 80 (1st Cir. 2004) ("[T]heories not advanced before the
BIA may not be surfaced for the first time in a petition for
judicial review of the BIA's final order."). In Lopez's briefs
before the BIA he did not claim that he faced persecution based on
his race. Nor did he argue that the IJ had misunderstood his
arguments. Rather, Lopez echoed his earlier statements to the IJ,
arguing that he had been threatened "due to his involvement in a
community based group for black people," called the "Afro-
[Colombians] Group," where he "served as a member."
In his initial application for asylum and withholding of
removal, Lopez did indicate -- by checking the box -- that his
application was based, in part, on race. Aside from this single
notation, however, Lopez did not rely on race, in either his
written materials or his testimony before the IJ, when detailing
the harm that he and his family had suffered. It is unclear why
this argument was abandoned. To the extent that Lopez is arguing
that the argument was never abandoned, the IJ's decision made clear
that she had not interpreted Lopez's arguments to include race.
Nevertheless, Lopez did not argue to the BIA that the IJ had
improperly failed to consider his race in denying his withholding
of removal application. His failure to present developed argument
to the BIA on this theory amounts to a failure to exhaust
administrative remedies and, therefore, we are without
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jurisdiction to consider this argument. Ramirez-Matias v. Holder,
778 F.3d 322, 327 (1st Cir. 2015).
For the reasons articulated above, the petition for
review is denied.
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