Pelaez v. INS ( 2003 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 02-1512
JOSE HUGO PELAEZ,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Torruella and Lipez, Circuit Judges.
Ronald L. Abramson with whom Abramson, Bailinson & O'Leary,
P.C. was on brief for petitioner.
Jennifer L. Lightbody, with whom Robert D. McCallum, Jr.,
Assistant Attorney General, Allen W. Hausman, Senior Litigation
Counsel, and Earle B. Wilson, Attorney, Office of Immigration
Litigation, were on brief for respondent.
May 22, 2003
LIPEZ, Circuit Judge. Jose Hugo Pelaez, a native and
citizen of Colombia, petitions for relief from the denial of his
claims for asylum under 8 U.S.C. § 1158(a), and for withholding of
removal. The Immigration Judge found that Pelaez had not
demonstrated a well-founded fear of persecution justifying asylum.
The Board of Immigration Appeals affirmed the decision without
opinion, in accordance with the Department of Justice's (DOJ)
"streamlined" appellate review procedures. Pelaez challenges both
the Immigration Judge's denial of his asylum claim and the
constitutionality of the DOJ's affirmance without opinion
procedures. We affirm.
I. ASYLUM
To be eligible for asylum, Pelaez bears the burden of
proving that he qualifies as a "refugee." 8 U.S.C. § 1158(b)
(2003). The Immigration and Nationality Act "defines a refugee as
an alien who cannot or does not want to return to his home 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.'" Manzoor v. United States
Dep't of Justice, 254 F.3d 342, 346 (1st Cir. 2001) (quoting 8
U.S.C. § 1101(a)(42)(A) (2003)). A petitioner can prove that he
qualifies as a refugee in one of two ways: "(1) by demonstrating
past persecution, thus creating a presumption of a well-founded
fear of persecution; or (2) by demonstrating a well-founded fear of
-2-
persecution." Yatskin v. INS, 255 F.3d 5, 9 (1st Cir. 2001). We
review a denial of a petition for asylum under a substantial
evidence standard. Id. We will reverse a decision of the IJ or
BIA only if "the record evidence would compel a reasonable
factfinder to make a contrary determination." Aguilar-Solis v.
INS, 168 F.3d 565, 569 (1st Cir. 1999).1
Before assessing the record evidence in this case, we
must address Pelaez's suggestion in his brief and assertion at oral
argument that the IJ "found that he did in fact suffer
'persecution' as a threshold matter." The government strongly
disagrees with this contention, asserting that the IJ did not find
that Pelaez suffered past persecution, and that, "in fact, Pelaez
made no allegation of past persecution in his application for
asylum or during his testimony before the Immigration Judge." The
stakes in this disagreement are considerable. If the IJ had found
that Pelaez demonstrated past persecution on the basis of political
opinion, he would have established a presumption of a well-founded
fear of persecution. Under INS regulations, this finding would
then shift the burden of proof to the government, requiring it to
prove by a preponderance of the evidence that the fear of
1
"Ordinarily, Courts of Appeals review decisions of the
[BIA], and not those of an IJ. When the BIA does not render its
own opinion, however, and either defers [to] or adopts the opinion
of the IJ, a Court of Appeals must then review the decision of the
IJ." Albathani v. INS, 318 F.3d 365, 373 (1st Cir. 2003) (quoting
Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002)) (alterations in
original; internal quotation marks omitted).
-3-
persecution is not well-founded, either because "[t]here has been
a fundamental change in circumstances" in the petitioner's home
country, 8 C.F.R. § 208.13(b)(1)(i)(A), or because the petitioner
"could avoid future persecution by relocating to another part" of
his home country, 8 C.F.R. § 208.13(b)(1)(i)(B). Moreover, if the
IJ had found that Pelaez suffered past persecution because of his
political opinions, and then failed to allocate the burden of proof
properly, that misallocation would have been a legal error.
Manzoor, 254 F.3d at 348 (finding that "the BIA erred in allocating
the burden of proof to Manzoor to show that the threat of
persecution was country-wide").
We find nothing in the IJ's opinion that supports the
claim that she made a finding of past persecution. Moreover, we
agree with the government that Pelaez did not properly raise the
issue of past persecution before the IJ. Indeed, there is only a
single mention of "past persecution" in a closing statement
Pelaez's attorney made to the IJ. Consequently, we will analyze
Pelaez's claim before us only as one citing a well-founded fear of
persecution. See Yatskin, 255 F.3d at 9 ("[A] reviewing court
should judge the action of an administrative agency based only on
reasoning provided by the agency.").
Before departing Colombia for the United States, Pelaez
worked as the Chief Secretary of Planning for the city of Cartago.
The Immigration Judge found this position to be a "political
-4-
patronage type of job," to which Pelaez was appointed because of
his involvement with the Conservative Social Party. As Planning
Secretary, Pelaez oversaw urban development projects and was
responsible for the enforcement of property and zoning regulations.
In June 1996, a colleague in the Planning Office was assassinated
after he had received death threats. Shortly thereafter, Pelaez
also began to receive threats at work and at his home. In his
view, these threats came from local property developers and
builders who were connected with the drug trade. In June 1998,
Pelaez had a particularly heated meeting with a developer who
implied that he was carrying a weapon. Only two months later, in
August 1998, Pelaez traveled on business to Brazil, Chile, and
Argentina. He returned to Colombia in September 1998, and remained
there until May 1999, when he and his wife traveled to the U.S. on
tourist visas. Pelaez filed his application for asylum in 2000.
Pelaez argues that he has a well-founded fear of
persecution on the basis of political opinion because the threats
he received resulted from his position as Secretary of Planning in
Cartago -- a political job requiring him to further the political
aims of the Mayor. Pelaez contends that his enforcement of zoning
regulations, his role in drafting new property laws, and his
willingness to root out corruption in the Planning office were
political acts, engendering retribution by local property owners
based on political opinion. Whether the performance of one's
-5-
governmental job can be deemed political opinion or imputed
political opinion for the purpose of an asylum determination
pursuant to 8 U.S.C. § 1158(a) is a difficult question that the IJ
chose not to answer. Instead, she assumed arguendo that Pelaez had
drawn the necessary nexus between the threats he received as a
result of his government work and the threat of persecution on the
basis of political opinion, and concluded that he still had not
proven a "well-founded fear of persecution." We follow her lead on
appeal.
"To prove a well-founded fear of persecution, the
'applicant's fear must be both genuine and objectively
reasonable.'" Morales v. INS, 208 F.3d 323, 330 (1st Cir. 2000)
(quoting Aguilar-Solis, 168 F.3d at 572). The IJ concluded that
Pelaez's conduct before his arrival in the United States "undercut"
his claim that he feared persecution if he were to return to
Colombia. As noted, shortly after receiving a threatening visit
from a developer, Pelaez traveled on business to three other
countries in South America, but chose to return to Colombia after
his business was concluded. The IJ found that Pelaez's voluntary
return to Colombia and his failure to apply for asylum in any of
the countries he visited on his business trip undermined his claim
that he genuinely feared persecution at home. We agree.
The IJ also concluded that Pelaez "has not shown he could
not relocate to another part of Colombia." Such ability to
-6-
relocate is a relevant consideration in determining whether a fear
of persecution is well founded. See 8 C.F.R. § 208.13(b)(2)(ii)
("An applicant does not have a well-founded fear of persecution if
the applicant could avoid persecution by relocating to another part
of the applicant's country of nationality . . . if under all the
circumstances it would be reasonable to expect the applicant to do
so."). Pelaez testified that he has family living in other parts
of Colombia. The IJ also relied on the fact that Pelaez had
"skills that would be useful to him in an urban center," and that
"Colombia is a large country, and [Pelaez] is not sure that he
could not relocate elsewhere." These conclusions are supported by
the evidence in the record.
As we have stated, a petitioner seeking reversal of a
denial of asylum must show that "the evidence presented was so
compelling that no reasonable fact-finder could fail to find that
[he] was persecuted on the basis of political opinion or had a
well-founded fear of such persecution." Morales, 208 F.3d at 331.
The evidence in this case does not meet that standard.2
2
Pelaez also applied for withholding of deportation, but
because the burden of proof under that section is "more stringent
than that for asylum, 'a petitioner unable to satisfy the asylum
standard fails, a fortiori, to satisfy the former.'" Velasquez v.
Ashcroft, 316 F.3d 31, 34 n.2 (quoting Alvarez-Flores v. INS, 909
F.2d 1, 4 (1st Cir. 1990)). Therefore, we also affirm the IJ's
denial of that claim.
-7-
II. STREAMLINED APPEALS PROCESS
Pelaez also challenges the constitutionality of the
recent amendments to the DOJ's regulations governing appeals to the
BIA. See 8 C.F.R. § 3.1(a)(7) (2003). These regulations permit
one member of the BIA to summarily affirm, without written opinion,
a decision of an Immigration Judge. This same objection to the
regulations was recently rejected in our circuit in Albathani, 318
F.3d at 375-79. There is nothing for us to add to that well-
reasoned opinion.
AFFIRMED.
-8-