Baltazar v. Holder, Jr. , 463 F. App'x 7 ( 2012 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 10-2518
VICTOR BALTAZAR,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Souter,* Associate Justice,
and Stahl, Circuit Judge.
Saher J. Macarius and Audrey Botros, on brief for petitioner.
Ada E. Bosque, Senior Litigation Counsel, Office of
Immigration Litigation, U.S. Department of Justice, Tony West,
Assistant Attorney General, Civil Division, and William C. Peachey,
Assistant Director, Office of Immigration Litigation, on brief for
respondent.
February 24, 2012
*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
LYNCH, Chief Judge. Victor Baltazar is a native and
citizen of Guatemala, who entered the United States in January 1993
and overstayed his visa. In response to a September 14, 2004
Notice to Appear, Baltazar conceded removability and requested
relief from removal in the form of asylum, withholding of removal,
and protection under the Convention Against Torture (CAT).
Baltazar's hearing on the merits took place before the
Immigration Judge (IJ) on February 5, 2009. Baltazar testified
that he had been a member of the Civil Defense Patrol (the Patrol)
in Guatemala. Joining the Patrol was mandatory, and groups of
members had to patrol during the night, looking for guerillas. On
one occasion, guerillas found his patrol group, and asked what the
group was doing. The group responded that they were afraid of the
guerillas, and the guerillas "told [them] to go home, go to sleep."
Baltazar also testified about three other incidents not
involving him. Baltazar's cousin, who was a member of the Patrol,
disappeared, along with the cousin's wife. A neighbor of
Baltazar's who was in the Patrol disappeared as well. Baltazar
testified that the guerillas killed another neighbor of his, who
was in the Patrol, and left a note saying that this was what
happened to people who "snitched" on the guerillas.
Baltazar ultimately left his village for the capital,
Guatemala City, because there was a knock on his door one night by
unidentified individuals who Baltazar thought were guerillas.
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Baltazar was sleeping at the time, and left out the back door after
hearing the knocking. While in Guatemala City, some men came
looking for Baltazar, but Baltazar's wife did not recognize the
men, and they did not explain why they were looking for him.
Baltazar also testified that he was a member of a cooperative that
provided medical services, and that most of the cooperative's
members he knew had been killed.1 After Baltazar left Guatemala
for the United States, he learned from his wife that some men had
approached his daughter, asking where he was.
The IJ found that while there were "significant problems"
with Baltazar's testimony, and he was "easily confused, and did not
remember dates or names," Baltazar nevertheless "testified credibly
and to the best of his ability." The IJ found that Baltazar did
not establish that he was subject to past persecution, as he was
never physically harmed or directly threatened, and had "minimal,
if any," contact with the guerrillas. The knock on the door during
the night and the unidentified individuals searching for Baltazar
were insufficient to establish past persecution, as these
individuals were unidentified, and the reason they were looking for
Baltazar was not explained. The IJ rejected Baltazar's claim that
Baltazar feared persecution based on his political opinion, as he
had not expressed his political opinion. The IJ also found that
1
Baltazar makes no claim of persecution based on his
membership in this cooperative.
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Baltazar did not establish a well-founded fear of future
persecution. Indeed, the 1996 peace accords in Guatemala removed
the guerillas as a basis for fearing persecution. This meant he
also failed to establish eligibility for withholding of removal.
The IJ also rejected the CAT claim.
Baltazar appealed to the Board of Immigration Appeals
(BIA), which found no error and dismissed the appeal. The BIA
upheld the IJ's finding that Baltazar had not established past
persecution, as well as the finding that Baltazar had not met his
burden of proving a well-founded fear of persecution. The BIA
found that Baltazar had not provided any evidence that he was or
would be singled out for persecution by the guerillas. The BIA
also agreed with the IJ that conditions in Guatemala had changed as
a result of the peace accords. Finally, the BIA rejected the
finding, made by the IJ, that the Patrol was a particular social
group as defined by the relevant case law. The BIA found that the
Patrol was not sufficiently particular and lacked sufficient social
visibility to constitute a "particular social group." The BIA
affirmed the IJ's findings denying withholding of removal and the
CAT claim.
The standards for judicial review and asylum are well
established and need not be repeated here. See, e.g.,
McKenzie–Francisco v. Holder, 662 F.3d 584, 586 (1st Cir. 2011);
Morgan v. Holder, 634 F.3d 53, 57-58 (1st Cir. 2011); Nako v.
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Holder, 611 F.3d 45, 48-49 (1st Cir. 2010); Lopez Perez v. Holder,
587 F.3d 456, 460-61 (1st Cir. 2009); López-Castro v. Holder, 577
F.3d 49, 52 (1st Cir. 2009); Palma-Mazariegos v. Gonzales, 428 F.3d
30, 34-35 (1st Cir. 2005).
Baltazar claims he was subject to past persecution and
has a well-founded fear of future persecution due to (1) his
political opinion and (2) his former membership in the Patrol,
which he contends is a particular social group within the meaning
of the statute.
The IJ properly found that Baltazar failed to establish
any political opinion that could serve as the basis for an asylum
claim, given that none of Baltazar's testimony articulated any
political opinion.
The IJ and BIA did not err in finding that Baltazar
failed to establish past persecution on account of his membership
in the Patrol. None of Baltazar's testimony established that he
was harmed or directly threatened by Guatemalan guerillas at all,
much less on account of a statutorily protected ground. On the one
occasion where Baltazar directly interacted with guerillas, they
simply told him to go home. The fact that unknown individuals
knocked at Baltazar's door, and on two other occasions sought him
out, does not establish that Baltazar was threatened on account of
a statutorily protected ground. See Vilela v. Holder, 620 F.3d 25,
29 (1st Cir. 2010) (the IJ and BIA are free to reject "speculation"
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that a particular group of individuals was behind particular
events). The disappearance of Baltazar's cousin and neighbor are
insufficient to establish past persecution on a statutorily
protected ground, given that the record contains no information
about why they disappeared. See Reyes Beteta v. Holder, 406 F.
App'x 496, 498-99 (1st Cir. 2011). Finally, Baltazar's testimony
about the killing of the neighbor who "snitched" did not require a
finding of past persecution.
Baltazar similarly failed to meet his burden of proving
a well-founded fear of future persecution based on his Patrol
membership, given that the only testimony supporting such a fear
was that unidentified men on two occasions came looking for him,
for unspecified reasons. Moreover, while the State Department
country report on Guatemala on which Baltazar relies documents
general levels of violence in the country, it does not state that
former Patrol members are targeted, or that any guerillas remain
active, and thus does not support a well-founded fear of
persecution. See Lopez Perez, 587 F.3d at 461. Those reports also
make clear that Guatemala's civil war ended in 1996, which supports
the IJ and BIA's conclusion that even if it were once reasonable
for Baltazar to fear persecution by the guerillas, such a threat no
longer exists, at least in the absence of specific evidence to the
contrary. Cf. Palma-Mazariegos, 428 F.3d at 36.
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Finally, even if Baltazar had a well-founded fear of
persecution on account of a statutorily protected ground, and he
does not, there is no connection between such a fear and the
government, as the IJ found. This alone defeats Baltazar's asylum
claim. See López-Castro, 577 F.3d at 55.
Because Baltazar did not meet his burden of proving a
well-founded fear of persecution,2 his asylum claim fails, and he
necessary failed to meet the higher burden required for withholding
of removal. Pheng v. Holder, 640 F.3d 43, 48 (1st Cir. 2011).
The IJ and BIA also properly found that Baltazar had not
established that it was more likely than not he would be tortured
upon return to Guatemala, and so rejected the CAT claim. See 8
C.F.R. § 1208.16(c)(2).
We deny the petition for review.
2
We need not address the BIA's conclusion that even were
such persecution established, membership in the Patrol is not a
"particular social group" within the meaning of the statute. See
Recinos-Castillo v. Holder, 444 F. App'x 459, 462-63 (1st Cir.
2011) (explaining that precedent "leave[s] open the possibility
that a status as a former civil patrol member . . . could
potentially give rise to asylum eligibility" on account of
membership in a particular social group or political opinion).
This is because, even assuming the Patrol is such a group, Baltazar
has failed to establish a well-founded fear of persecution on
account of his former membership in the Patrol, as explained above.
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