Melvin Reyes-Cardona v. Eric Holder, Jr. , 565 F. App'x 366 ( 2014 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0337n.06
No. 13-3828
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
MELVIN REYES-CARDONA, ) Apr 29, 2014
) DEBORAH S. HUNT, Clerk
Petitioner, )
) ON PETITION FOR REVIEW
v. ) FROM THE UNITED STATES
) BOARD OF IMMIGRATION
ERIC H. HOLDER, JR., Attorney General, ) APPEALS
)
Respondent. )
BEFORE: MERRITT, COOK, and STRANCH, Circuit Judges.
PER CURIAM. Melvin Reyes-Cardona, a citizen of Guatemala, petitions through
counsel for review of an order of the Board of Immigration Appeals (BIA) dismissing his appeal
from a decision of an immigration judge (IJ) denying his applications for withholding of removal
and protection under the Convention Against Torture (CAT).
Reyes-Cardona was born in Guatemala in 1975. He entered the United States in 1998
without authorization and has remained here since that time. He applied for the above relief,
stating that he feared persecution if he returned to Guatemala. He stated that a friend of his had
killed a man, and the friend had later been killed by members of the deceased man’s family in
revenge. These same people were allegedly looking for Reyes-Cardona, believing that he may
have been involved in the original crime. After a hearing, at which Reyes-Cardona was the sole
witness, the IJ denied relief. The IJ found that Reyes-Cardona was not credible, that he was not
a member of a protected social group, that he had established only a personal dispute between
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him and the murdered man’s family, and that he had not shown he would be tortured in
Guatemala. The BIA agreed with each of these findings and dismissed the appeal. Reyes-
Cardona reasserts his arguments before this court.
Initially, Reyes-Cardona challenges the finding that his testimony was not credible. A
credibility finding is reviewed under the substantial evidence standard, and will be reversed only
if the record compels a contrary finding. Hachem v. Holder, 656 F.3d 430, 434 (6th Cir. 2011).
When evaluating credibility, an IJ should be sensitive to misunderstandings caused by language
barriers, the use of translators, and cultural differences. See Iao v. Gonzales, 400 F.3d 530, 532
(7th Cir. 2005). Here, the IJ placed too much weight on the fact that witnesses described Reyes-
Cardona and his friends as being “in” a bar that had only outdoor seating and on the possible
contradiction regarding when Reyes-Cardona had last spoken to his friend Nerrie, especially as
the IJ failed to address Reyes-Cardona’s explanation for the inconsistency. See N’Diom v.
Gonzales, 442 F.3d 494, 499 (6th Cir. 2006). However, the IJ correctly noted that Reyes-
Cardona testified that he did not know if a police report was made concerning the killing of his
friend, and that this was in direct contrast to his written statement saying that the killing had been
reported but not solved. Moreover, the credibility finding was also based on the absence of
corroborating evidence that Reyes-Cardona should have supplied. See Lin v. Holder, 565 F.3d
971, 977 (6th Cir. 2009). Based on the determination that Reyes-Cardona significantly lacked
credibility, the IJ understandably required substantial corroboration. Even so, the IJ did not
explain why particular corroborating evidence would be expected, and some of the missing
corroboration identified by the IJ—namely the death certificate of a man whose name Reyes-
Cardona did not know—could not reasonably be expected. The IJ correctly pointed out that a
statement from his father failed to corroborate the fact that Reyes-Cardona’s friend had been
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killed by the original victim’s family though admittedly the statement was too short to contain all
relevant information. Still the record contains support for some of the bases of the adverse
credibility finding and thus does not compel a different conclusion. See 8 U.S.C.
§ 1158(b)(1)(B)(iii) (explaining that inconsistencies relevant to an adverse credibility finding
need not “go[] to the heart of the applicant’s claim”).
Even if all of Reyes-Cardona’s testimony were accepted, however, he still failed to
establish eligibility for withholding or protection under the CAT. To be eligible for withholding,
Reyes-Cardona had to establish a clear probability of persecution on account of a protected
ground. Zoarab v. Mukasey, 524 F.3d 777, 782 (6th Cir. 2008). This requires showing that it is
more likely than not that the applicant will be persecuted. Almuhtaseb v. Gonzales, 453 F.3d
743, 749 (6th Cir. 2006). A denial of withholding relief will be upheld unless it is manifestly
contrary to law. Id. Before the IJ, Reyes-Cardona stated that he was a member of a social group
of victims of crime, which the IJ properly rejected. Before this court, Reyes-Cardona claims that
he is a member of a group of witnesses to a public crime. We lack jurisdiction to consider this
alleged social group because Reyes-Cardona failed to raise this argument before the IJ or the
BIA. See 8 U.S.C. § 1252(d)(1); Ramani v. Ashcroft, 378 F.3d 554, 559 (6th Cir. 2004). As to
whether victims of crime are a social group, the IJ properly concluded that Reyes-Cardona
established only a personal dispute between himself and the family of his friend’s victim, which
is not a protected ground. See Zoarab, 524 F.3d at 781.
Reyes-Cardona also argues that the IJ rejected another proposed social group he
identified, that of potential victims of crimes targeted on account of their perceived wealth as
former inhabitants of the United States. This is also not a protected ground. See Jutus v. Holder,
723 F.3d 105, 111 (1st Cir. 2013); Cristobal-Leon v. Holder, 510 F. App’s 397, 399 (6th Cir.
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2013) (per curiam). Finally, Reyes-Cardona argues that this court has recently changed the
definition of what constitutes a recognizable social group, citing Umana-Ramos v. Holder,
724 F.3d 667, 672 (6th Cir. 2013). However, that case does not purport to enunciate a change in
the law, but instead restates earlier holdings that a social group is one perceived as such by the
society, and not necessarily visually recognizable. Nothing in that case establishes that Reyes-
Cardona is either a victim of crime or a target of persecution based on the non-protected ground
of having lived in the United States.
In order to be eligible for protection under the CAT, Reyes-Cardona was required to
show that it was more likely than not that he would be tortured by the government of Guatemala
or with its acquiescence. Amir v. Gonzales, 467 F.3d 921, 927 (6th Cir. 2006). Again, a denial
of protection under the CAT will be upheld unless manifestly contrary to law. Ali v. Reno,
237 F.3d 591, 596 (6th Cir. 2001). In considering the torture risk to an applicant, the IJ should
consider any evidence of past torture, and whether the applicant would be tortured in all areas of
the country. Id. at 596-97. In this case, the IJ properly found that Reyes-Cardona had submitted
no evidence of past torture, or of a likelihood of future torture committed or acquiesced to by the
Guatemalan government anywhere in the country.
For all of the above reasons, the petition for review is denied.
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