Bosbeli Sapon-Ordonez v. Atty Gen USA ( 2012 )

  •                                                       NOT PRECEDENTIAL
                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT
                                         No. 11-2229
                                BOSBELI SAPON-ORDONEZ,
                           On Petition for Review of an Order of the
                                Board of Immigration Appeals
                                (Agency No. A088-645-576 )
                        Immigration Judge: Honorable Eugene Pugliese
                       Submitted Pursuant to Third Circuit LAR 34.1(a)
                                      March 14, 2012
                     Before: FISHER, WEIS and BARRY, Circuit Judges
                                 (Opinion filed: April 2, 2012)
          Bosbeli Sapon-Ordonez petitions for review of a Board of Immigration Appeals
    (BIA) decision denying his application for withholding of removal and protection under
    the United Nations Convention Against Torture (CAT). For the following reasons, we
    will deny the petition for review
           Sapon-Ordonez, a citizen of Guatemala, entered the United States without
    inspection in January 2006, and was apprehended during the execution of a search
    warrant in Bristol, Pennsylvania. 1 Administrative Record (A.R.) 158. Conceding
    removability, he filed an application for asylum, 2 withholding of removal, and CAT
    protection. Sapon-Ordonez claimed that, as an indigenous Guatemalan, he was targeted
    for persecution by “maras” (roving gangs) in his village. Beginning in 2002, these gangs
    began to harass him and his family, requesting ever-increasing payments—which they
    called a “peace tax”—and demanding that he join their ranks. A.R. 204. The police were
    unwilling to help him, see A.R. 142, and following a December 2005 beating, he fled the
    country. Sapon-Ordonez insisted that he could not return to Guatemala at all, as
    relocation within the country would not be possible because the gang “control[s]
    everything [and] it’s a big gang.” A.R. 143. He further explained that he was targeted
    because the gangs “look for people that the law does not protect,” such as indigenous
    persons. A.R. 145–46.
      Because the parties are our primary audience, we will not recount Sapon-Ordonez’s
    story with the level of detail developed in the agency proceedings. However, we have
    undertaken a full and complete review of the record.
     Sapon-Ordonez’s asylum application was found to be untimely, and he does not press
    any asylum-related issues before this Court.
           Despite finding Sapon-Ordonez to be a “credible witness,” A.R. 84, the IJ denied
    relief, concluding (inter alia) that the abuse he suffered did not rise to the level of
    persecution. A.R. 85–86. The BIA dismissed the appeal, holding that 1) Sapon-Ordonez
    had not shown that his status as an indigenous person was “one central reason” for the
    harassment he suffered, and 2) the mistreatment alleged did not rise to the level of
    persecution. A.R. 3–4. Therefore, Sapon-Ordonez had failed to present evidence of past
    persecution, and was thus not entitled to a presumption of future persecution. A.R. 4.
           The BIA further concluded that Sapon-Ordonez had failed to show a clear
    probability of future persecution upon his return to Guatemala. Although he “expressed
    continued fear of retaliation for his rejection of gang recruitment . . . , threats related to
    gang recruitment are generally not considered persecution on an enumerated ground.”
    A.R. 4. Moreover, Sapon-Ordonez’s “fear of generalized turmoil d[id] not, without
    more, qualify him for withholding of removal,” and while “there [wa]s some
    discrimination against indigenous people, [the background information on Guatemala]
    d[id] not demonstrate a pattern or practice of persecution.” A.R. 4. The BIA also denied
    claims related to the Fifth Amendment and declined to grant CAT protection. A.R. 4–5.
    This counseled petition for review followed.
           We have jurisdiction under 8 U.S.C. § 1252(a) to review the BIA’s decision,
    looking “to the IJ’s ruling only insofar as the BIA defer[red] to it.” Huang v. Att’y Gen.,
    620 F.3d 372
    , 379 (3d Cir. 2010). “We will uphold the findings of the BIA to the extent
    that they are supported by reasonable, substantial and probative evidence on the record
    considered as a whole, and will reverse those findings only if there is evidence so
    compelling that no reasonable factfinder could conclude as the BIA did.” Kayembe v.
    334 F.3d 231
    , 234 (3d Cir. 2003). Legal conclusions are considered de novo.
    Berishaj v. Ashcroft, 
    378 F.3d 314
    , 330 (3d Cir. 2004).
           Under the INA, an alien qualifies for withholding of removal “if the Attorney
    General decides that the alien’s life or freedom would be threatened in that country
    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). “This standard is similar to, but more
    stringent than, the standard for asylum. Whereas an asylum applicant need only establish
    a ‘well-founded fear’ of persecution, a withholding applicant must establish a ‘clear
    probability’ that his life or freedom would be threatened because of an enumerated
    characteristic. ‘Clear probability’ means that it is ‘more likely than not’ that an alien
    would be subject to persecution.” Li v. Att’y Gen., 
    633 F.3d 136
    , 140 (3d Cir. 2011); see
    also Dong v. Att’y Gen., 
    638 F.3d 223
    , 228 (3d Cir. 2011) (citing 8 C.F.R.
    § 208.16(b)(1); INS v. Stevic, 
    467 U.S. 407
    , 429–30 (1984)). In order to qualify for
    protection under the CAT, an alien must show that “it is more likely than not that he or
    she would be tortured if removed to the proposed country of removal.” 8 C.F.R.
    § 208.16(c)(2); see also Dong v. Att’y Gen, 
    638 F.3d 223
    , 228–29 (3d Cir. 2011).
    A) Past Persecution
           The BIA determined that the abuse suffered by Sapon-Ordonez “did not rise to the
    level of persecution.” A.R. 4. Its conclusion was supported by substantial evidence. 3
    Persecution consists of “threats to life, confinement, torture, and economic restrictions so
    severe that they constitute a real threat to life or freedom.” Lukwago v. Ashcroft, 
    329 F.3d 157
    , 168 (3d Cir. 2003) (citation omitted). “While this Court has not yet drawn a
    precise line concerning where a simple beating ends and persecution begins, our cases
    suggest that isolated incidents that do not result in serious injury do not rise to the level of
    persecution.” Voci v. Gonzales, 
    409 F.3d 607
    , 615 (3d Cir. 2005). The record is
    equivocal on the extent of Sapon-Ordonez’s injuries; for example, in his affidavit, Sapon-
    Ordonez implied that he was beaten severely, but he told the IJ that he was “hit.”
    Compare A.R. 204, with A.R. 142. Thus, the BIA did not err in finding the incidents in
    question to fall short of “persecution” as defined in our case law.
           Hence, because Sapon-Ordonez did not demonstrate past persecution, he was not
    entitled to a presumption of future persecution.
    B) Future Persecution
           In determining that Sapon-Ordonez had not shown a clear probability that he
    would be persecuted if returned to Guatemala, the BIA emphasized that Sapon-Ordonez’s
    fear of “generalized turmoil” and a record that showed “some discrimination against
      We therefore need not address the BIA’s alternative determination regarding whether
    an enumerated ground was “one central reason” for the harassment. See 8 U.S.C. §
    1158(b)(1)(B)(i); Li v. Att’y Gen., 
    633 F.3d 136
    , 142 n.4 (3d Cir. 2011).
    indigenous people” did not suffice to qualify him for withholding of removal. See A.R.
    4. It therefore denied his appeal.
           Unlike the question of past persecution, Sapon-Ordonez’s worries of his fate upon
    returning to Guatemala present a closer issue. We observe that the State Department’s
    2007 Human Rights Report reflects “pervasive” discrimination against indigenous
    people, as well as “ethnic discrimination in employment and occupation.” A.R. 173.
    While Sapon-Ordonez’s fear of persecution may be subjectively reasonable, however, we
    are not compelled to conclude that it is also objectively so. See Gomez-Zuluaga v. Att’y
    527 F.3d 330
    , 347 (3d Cir. 2008). The treatment described by the State
    Department report does not necessarily establish a “pattern or practice” of activities
    meeting the definition of “persecution.” See Sukwanputra v. Gonzales, 
    434 F.3d 627
    637 (3d Cir. 2006); see also Wong v. Att’y Gen., 
    539 F.3d 225
    , 236 (3d Cir. 2008)
    (“[H]arassment and discrimination do not constitute persecution.”); Chen v. Ashcroft,
    381 F.3d 221
    , 233 (3d Cir. 2004) (“[C]ourts routinely deny relief to those who suffer
    racial discrimination that falls short of ‘persecution’ . . . .”); Ahmed v. Ashcroft, 
    341 F.3d 214
    , 217 (3d Cir. 2003). A reasonable arbiter might well conclude to the contrary, but
    “[w]here the record supports plausible but conflicting inferences in an immigration case,
    the . . . choice between those inferences is, a fortiori, supported by substantial evidence.”
    De Hincapie v. Gonzales, 
    494 F.3d 213
    , 219 (1st Cir. 2007). Given the particularly
    deferential standard of review that governs withholding of removal, we must uphold the
    BIA’s determination.
    C) Convention Against Torture
          The BIA correctly determined that Sapon-Ordonez had not met his burden under
    the CAT. He made no showing of the likelihood of torture should he return to
    D) Due Process
          Finally, Sapon-Ordonez argues that the IJ failed to give adequate weight to his
    mother’s affidavit and the evidence contained in the State Department report denied him
    due process. The BIA retains the power “to weigh and evaluate evidence introduced
    before the IJ.” Rotinsulu v. Mukasey, 
    515 F.3d 68
    , 73 (1st Cir. 2008). We see no
    indication that the manner in which the BIA evaluated the evidence—or the extent to
    which it implicitly relied on the IJ’s weighing of evidence—violated due process and
    affected Sapon-Ordonez’s ability to fairly present his case. See Khan v. Att’y Gen., 
    448 F.3d 226
    , 236 (3d Cir. 2006).
          For all of the above reasons, we will deny the petition for review.