Jutus v. Holder, Jr. , 723 F.3d 105 ( 2013 )

United States Court of Appeals
For the First Circuit
No. 12-1709
JORGE AUGUSTO JUTUS,
a/k/a JORGE AUGUSTO SUTUJ, JORGE AUGUSTO SUTUJ-BAJXAC,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Howard, Lipez and Thompson,
Circuit Judges.
Randy Olen on brief for petitioner.
Ada E. Bosque, Senior Litigation Counsel, Office of
Immigration Litigation, Civil Division, Department of Justice,
Stuart F. Delery, Principal Deputy Assistant Attorney General,
Civil Division, and William C. Peachey, Assistant Director, Office
of Immigration Litigation, on brief for respondent.
July 17, 2013
HOWARD, Circuit Judge. The petitioner, Jorge Augusto
Sutuj, seeks review of a decision of the Board of Immigration
Appeals (BIA) denying his motion to reopen removal proceedings on
the grounds of materially changed country conditions. Sutuj claims
that the BIA erred in finding no material change in country
conditions and in purportedly requiring affidavits from first-hand
sources to support his motion. Because the BIA did not abuse its
discretion in finding that Sutuj established neither material
changed conditions nor a prima facie case for substantive relief,
we deny the petition for review.
I. Facts and Background
Jorge Augusto Sutuj is a native and citizen of Guatemala.
He arrived in the United States nineteen years ago on March 3,
1994, entering without inspection. In March of 1998, the United
States initiated removal proceedings against Sutuj under the
Immigration and Nationality Act (the Act) for being present in the
country without having been admitted or paroled. See 8 U.S.C.
§ 1182(a)(6)(A)(i). Sutuj applied for relief in the form of
asylum, withholding of removal, and protection under the Convention
Against Torture (C.A.T.). Although his application came over a
year following his initial entry into the country, the Immigration
Judge (IJ) pardoned the delay as due to circumstances outside the
applicant's control.
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In his application for asylum, Sutuj alleged that he
feared torture by guerilla forces in Guatemala due to his father's
service in the military and subsequent work in the civil patrol.
Sutuj recounted a history of encounters with the guerillas during
his childhood. As a young boy, he believed that guerilla forces
would kill him if they discovered that his father had been a member
of the military. When he was ten years old, a squad of guerillas
questioned him about his father. When Sutuj identified his
grandfather instead, the guerillas pushed him into a cooking fire
and caused him to burn his forearm. During the same period,
Sutuj's uncle died after a severe beating, which Sutuj assumed was
the work of guerilla forces. Shortly thereafter, Sutuj's father
went into hiding and Sutuj and his brother came to be cared for by
a neighboring farmer. When Sutuj was eleven years old, he
witnessed the farmer shot dead by guerilla forces for identifying
himself by a false name. Sutuj's last incident with the guerillas
occurred in 1984, although, with the exception of six months spent
in Guatemala City, he continued to live in the Peten region of his
childhood until his entry into the United States in 1994.
At Sutuj's asylum hearing in 1999, the IJ found that he
had been a credible witness, but that he had failed to establish a
threshold case for relief. While acknowledging continuing
"incidents of violence both retaliatory and politically motivated
and also criminally motivated" in Guatemala, the IJ noted that the
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government had signed peace accords with the guerillas in 1996,
that the country's "human rights situation has continued to
improve," and that Sutuj had alleged no threats against or harm to
his family since 1984. "Although his family may continue to live
in fear," the IJ concluded, "it does not appear that there is any
objective reason to think that the fear will be realized in any
way." Furthermore, the IJ found that Sutuj had failed to
demonstrate that the guerilla violence he experienced as a child
amounted to the level of "persecution or was inflicted on account
of race, religion, nationality, membership in a particular social
group or political opinion," as required by statute. See 8 C.F.R.
§ 1208.13(b)(2)(i)(A). Finally, the IJ concluded that Sutuj had
failed to qualify for C.A.T. protection because he provided no
evidence that he would be subject to egregious pain or mental
suffering upon his return, much less by or through the acquiescence
of government officials. The BIA affirmed the IJ's decision
without opinion and granted Sutuj voluntary departure within thirty
days.
Sutuj did not depart the country, but nine years later,
in November of 2011, he filed a motion to reopen his application
for asylum and withholding of removal. Because his motion to
reopen came more than 90 days after the final administrative
decision in his case, Sutuj was required by statute to establish
that country circumstances in Guatemala material to his asylum
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claim had changed since his previous hearing. See id.§ 1003.2(c)(3)(ii). In support of his motion, Sutuj submitted a
personal affidavit alleging that in the years since the BIA's last
decision Guatemala "has been taken over by criminal gangs" and drug
traffickers whom government forces have failed to control. As a
longtime inhabitant of the United States, Sutuj contended that he
would become an immediate target for extortion. Sutuj also
submitted a working paper by a human rights organization entitled
"A criminal bargain: the state and security in Guatemala," which
examined the influence of financial elites over government
officials and the "encroaching power of clandestine and criminal
cartels."
The BIA denied Sutuj's motion to reopen on the grounds
that he had failed to demonstrate materially changed country
conditions and that he had failed to establish a prima facie case
for asylum. First, the BIA found that the "limited country
information" submitted by Sutuj in support of his motion did not
show a meaningful change in country conditions since 1999. Both
Sutuj's motion to reopen and the record of his initial asylum
application reported "widespread societal violence and inadequate
police and judicial protection" in Guatemala. Furthermore, the BIA
found that Sutuj had failed to provide new and material evidence
that he faced persecution motivated by one of the five statutory
grounds: race, religion, nationality, membership, or political
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affiliation. To the extent that Sutuj feared extortion intended
"to force the payment of money," he did not articulate a threat
"equivalent to persecution on a ground protected under the Act."
The BIA noted that Sutuj failed to identify his putative
extortionists and that his assertions "were not supported by
affidavits from first-hand sources." Finally, the BIA rejected
Sutuj's claim for asylum on the grounds of "other possible harm" in
the absence of a well-grounded fear of persecution. The BIA noted
that a grant of asylum on this basis required a finding of past
persecution, see id. § 1208.13(b)(1)(iii)(B), which was not the
case here.
Sutuj filed this timely petition seeking review of the
Board's denial of his motion to reopen.
II. Discussion
The BIA has jurisdiction over motions to reopen removal
proceedings under 8 C.F.R. § 1003.2(a). We have jurisdiction over
the BIA's decisions under 8 U.S.C. § 1252. Due to the "strong
public interest in bringing litigation to a close . . . promptly"
in deportation proceedings, motions to reopen are generally
disfavored. Fesseha v. Ashcroft, 333 F.3d 13, 20 (1st Cir. 2003)
(quoting INS v. Abudu, 485 U.S. 94, 107 (1988)). As a consequence,
the BIA "enjoys considerable latitude in deciding whether to grant
or deny such a motion," Raza v. Gonzales, 484 F.3d 125, 127 (1st
Cir. 2007), and we review the BIA's denial of a motion to reopen
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only for abuse of discretion, Larngar v. Holder, 562 F.3d 71, 74
(1st Cir. 2009). In practice, we must therefore affirm the BIA's
decision unless the petitioner shows that the BIA committed an
error of law or "exercised its judgment in an arbitrary,
capricious, or irrational way." Raza, 484 F.3d at 127; see also
Larngar, 562 F.3d at 74.
An applicant who moves to reopen removal proceedings on
any ground must surmount several substantive and procedural
hurdles. As a substantive matter, the applicant must both
introduce new, material evidence that was not available or
discoverable at the prior hearing and must also present a prima
facie case of eligibility for the relief sought. Fesseha, 333 F.3d
at 20 (quoting Abudu, 485 U.S. at 104); see also 8 C.F.R.
§ 1003.2(c)(1). The BIA is entitled to exercise its discretion to
deny a motion to reopen even where both threshold concerns are met.
Smith v. Holder, 627 F.3d 427, 433-34 (1st Cir. 2010); see also 8
C.F.R. § 1003.2(a) ("The Board has discretion to deny a motion to
reopen even if the party moving has made out a prima facie case for
relief.").
As a procedural matter, an applicant is typically limited
to one motion to reopen, to be filed within ninety days of a final
administrative decision in his or her case. Larngar, 562 F.3d at
74; 8 C.F.R. § 1003.2(c)(2). However, these requirements are
relaxed where the petition establishes that "changed circumstances
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have arisen in the country of nationality or in the country to
which deportation has been ordered." Larngar, 562 F.3d at 74; see
also 8 C.F.R. § 1003.2(c)(3) ("The time and numerical limitations
. . . shall not apply to a motion to reopen proceedings . . . based
on changed circumstances arising in the country of nationality or
in the country to which deportation has been ordered . . . .").
The petitioner bears the burden of "mak[ing] a convincing
demonstration of changed conditions in his homeland." Raza, 484
F.3d at 127; see also Tandayu v. Mukasey, 521 F.3d 97, 100 (1st
Cir. 2008). Evidence of changed country circumstances must, first,
have been unavailable during the prior proceeding and, second, be
material to the underlying substantive claim for relief. Raza, 484
F.3d at 127; see also 8 C.F.R. § 1003.2(c)(3)(ii).
In light of the record in this case, the BIA did not
abuse its discretion in finding that petitioner Sutuj has neither
established a prima facie case for asylum,1 nor provided evidence
of materially changed conditions in his country of nationality.
1
Although Sutuj's motion to reopen included his initial
claims for both asylum and withholding of removal, the BIA's
decision addresses only asylum and Sutuj does not challenge the
omission on appeal. His brief also seeks reopening his application
for protection under C.A.T., an issue not raised in his original
motion. This unexhausted claim is forfeit.
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A. Prima Facie Eligibility for Relief
To establish eligibility for asylum, an applicant must
demonstrate a "well-founded fear of persecution on one of five
protected grounds": race, religion, nationality, membership in a
particular social group, or political opinion. Maryam v. Gonzales,
421 F.3d 60, 62 n.3 (1st Cir. 2005); see also 8 C.F.R. §
1208.13(b)(2)(i)(A). An applicant may satisfy this burden through
proof of past persecution, which creates a rebuttable presumption
of a well-grounded fear of future persecution. Escobar v. Holder,
698 F.3d 36, 38 (1st Cir. 2012). Alternatively, the applicant must
show both that he or she "genuinely fears such persecution" and
that "an objectively reasonable person in [his or her]
circumstances would fear such persecution." Mendez-Barrera v.
Holder, 602 F.3d 21, 25 (1st Cir. 2010).
A prima facie case for asylum requires the applicant to
demonstrate only a "reasonable likelihood" of future persecution,
defined as "a realistic chance that the petitioner can at a later
time establish that asylum should be granted." Smith, 627 F.3d at
437 (quoting Guo v. Ashcroft, 386 F.3d 556, 564 (3d Cir. 2004)).
Even a prima facie case, however, requires several threshold
showings. First, the applicant must demonstrate a realistic chance
of persecution "based on a statutory ground," limited to race,
religion, nationality, membership, or political opinion. Id.Second, "a showing of persecution requires 'more than mere
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discomfiture, unpleasantness, harassment, or unfair treatment,'"
Mendez-Barrera, 602 F.3d at 25 (quoting Nikijuluw v. Gonzales, 427
F.3d 115, 120 (1st Cir. 2005)), but rather "must show serious
harm," id. Finally, the alleged persecution must involve "some
connection to government action or inaction." Raza, 484 F.3d at
129 (quoting Orelien v. Gonzales, 467 F.3d 67, 72 (1st Cir. 2006))
(internal quotation marks omitted).
The BIA did not abuse its discretion in finding that
Sutuj's motion to reopen does not make out a prima facie case for
persecution on a statutorily protected ground. In Sutuj's initial
removal proceedings, the IJ found and the BIA affirmed that Sutuj's
childhood encounters with Guatemalan guerillas before 1984 did not
give rise to a continuing well-founded fear of persecution due to
political opinion. Sutuj did not appeal the BIA's decision at the
time and does not challenge this finding now. Rather, his motion
to reopen relies on the rise of criminal syndicates in Guatemala to
argue that, as an American repatriate, he will be newly subject to
criminal extortion upon his return.
Even acknowledging, for purposes of argument, Sutuj's
suggestion that Guatemalan criminal gangs might be aided by the
government, an assertion for which he presents no substantiating
evidence,2 Sutuj's fear of financial extortion does not qualify as
2
In his motion to reopen, Sutuj suggests a "conspiracy by the
government and narco-trafficking." The record does not support
this statement or connect it to the applicant's personal fears of
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persecution on the basis of a statutorily protected ground. We
have consistently rejected the theory that criminal exploitation
motivated by greed or wealth, including that based on one's status
as a former inhabitant of the United States, triggers statutory
protection. E.g., Escobar, 698 F.3d at 39 (rejecting applicant's
theory that "Guatemalan gangs will assume that he amassed
significant wealth during his two-decade-long stay in the United
States" in denying asylum); Ruiz v. Mukasey, 526 F.3d 31, 36-37
(1st Cir. 2008) (finding it "significant" in denying asylum "that
the threats about which the witnesses testified were not connected
with any statutorily protected ground but, rather, were clearly
motivated . . . by greed"); Lopez de Hincapie v. Gonzales, 494 F.3d
213, 220 (1st Cir. 2007) (finding that extortion does not call for
statutory protection). As we have remarked, "being a target for
thieves on account of perceived wealth, whether the perception is
temporary or permanent," does not satisfy the bar for persecution
but "is merely a condition of living where crime is rampant and
poorly controlled." Escobar, 698 F.3d at 39.
The BIA's decision followed this precise line of
reasoning. The BIA specifically noted the requirement that asylum-
seekers allege persecution on race, religion, nationality,
membership, or political opinion, concluding that "[g]ang action
motivated by extortion is not equivalent to persecution on a
extortion.
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[protected] ground." The BIA did not abuse its discretion in
determinating that Sutuj failed to present a prima facie case for
eligibility for asylum.3
Alternatively, Sutuj's motion to reopen suggests that, as
a victim of past persecution, he is eligible for asylum even absent
a well-founded fear of future persecution if he can establish a
"reasonable probability" of "other serious harm upon removal." See
8 C.F.R. § 1208.13(b)(1)(iii)(B). As the BIA properly noted,
however, the IJ in Sutuj's initial removal hearings rejected the
claim that Sutuj's childhood experiences in Guatemala amounted to
3
Sutuj additionally claims that the BIA abused its discretion
in requiring him to submit affidavits from first-hand sources in
order to support his prima facie case. We read the BIA's reference
to affidavits somewhat differently: not as requiring affidavits
from first-hand sources per se, but rather as listing the lack of
personal affidavits as among the evidentiary gaps that make Sutuj's
prima facie showing deficient in this case. We note that, although
the petitioner's argument fails because it is not supported by the
record, it is not legally unsound. We have considered -- and in
some cases upheld -- numerous asylum applications and motions to
reopen that relied exclusively on an applicant's affidavit and
documentary evidence. See, e.g., Escobar, 698 F.3d at 39
(reviewing a motion to reopen supported by "personal knowledge" of
violence and reports by the State Department and human rights
organizations); Smith, 627 F.3d at 434 (holding that BIA erred in
denying a motion to reopen due to changed country circumstances
supported by "reports from human rights organizations, the United
States government, and the press"); Mendez-Barrera, 602 F.3d at 24(reviewing an application for asylum based on "generalized accounts
of country conditions"); López-Castro v. Holder, 577 F.3d 49, 53
(1st Cir. 2009) (reviewing an application for asylum supported by
Amnesty International and State Department reports); Raza, 484 F.3d
at 129 (reviewing a motion to reopen based on "a series of internet
articles" describing contemporaneous country conditions); Fesseha,
333 F.3d at 18 (reviewing a motion to reopen supported by reports
from the U.S. government and human rights organizations).
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persecution motivated by political opinion. Following the BIA's
adoption of the IJ's decision, Sutuj did not seek further review of
appeal. Accordingly, in considering Sutuj's motion to reopen, the
BIA did not abuse its discretion in deferring to this earlier
finding and in denying Sutuj's eligibility for relief under 8
C.F.R. § 1208.13(b)(1)(iii)(B).
B. Changed Country Conditions
Similarly, the BIA correctly found that Sutuj failed to
make a convincing demonstration of materially changed conditions in
his country of nationality. Before us, Sutuj emphasizes that the
IJ's initial denial of asylum relied substantially on evidence of
recent peace accords and "improv[ing]" human rights conditions in
Guatemala in 1999, while his submitted evidence suggests spiking
social disorder and crime. Comparing the original record against
Sutuj's evidence in support of his motion to reopen, the BIA
concluded that both records "reported widespread societal violence
and inadequate police and judicial protection" and consequently
suggested no meaningful change in country conditions in the
interim. Considering the evidence of national discord at Sutuj's
initial hearing and the IJ's own acknowledgment of continuing
"instances of violence" on both political and criminal grounds, the
BIA's conclusion cannot be considered arbitrary, capricious, or
irrational.
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In any case, the petitioner's argument neglects the
requirement that any changes in country conditions must not simply
be newly available, but also "material to the underlying
substantive relief" sought. Raza, 484 F.3d at 127; see also 8
C.F.R. § 1003.2(c)(3)(ii). Even assuming that the present-day
levels of gang activity in Guatemala mark a qualitative change from
the social turmoil in the country ten years ago, rising rates of
general criminal activity are not material to Sutuj's claims for
asylum or withholding of removal on an enumerated statutory basis.
"Evidence of 'widespread violence . . . affecting all citizens' is
not enough to establish persecution on a protected ground."
Escobar, 698 F.3d at 38 (quoting Maryam, 421 F.3d at 63); see also
López-Castro, 577 F.3d at 54 ("A country-wide risk of victimization
through economic terrorism is not the functional equivalent of a
statutorily protected ground . . . ."). Sutuj thus fails to show
changed country circumstances for the same reason he fails to make
a prima facie case for relief: because the alleged changes in
country conditions have no nexus to Sutuj's fear of persecution due
to race, religion, nationality, membership, or political opinion.
The BIA noted as much when it observed that Sutuj's reports of
growing crime rates in Guatemala provided "no new and material
evidence that the respondent will face persecution on account of [a
protected ground]." The BIA properly concluded that Sutuj failed
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to establish a material change in country conditions necessary to
reopen removal proceedings.
The petition for review is denied.
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