Pedro Suram Rodriguez v. Alberto Gonzales ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-1526
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Pedro A. Suram Rodriguez, also *
known as Pedro Alfonso Suram *
Rodriguez, *
*
Petitioner, *
* Petition for Review of an Order
v. * of the Board of Immigration
* Appeals.
Alberto Gonzales, Attorney General *
of the United States of America *
*
Respondent. *
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Submitted: March 17, 2006
Filed: March 22, 2006
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Before MURPHY, BOWMAN, and BENTON, Circuit Judges.
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MURPHY, Circuit Judge.
Petitioner Pedro Rodriguez is a Guatemalan citizen who entered the United
States illegally on March 28, 1991. He filed an asylum application in December 1993,
seeking asylum, withholding of removal, and protection under the Convention Against
Torture (CAT). The Immigration Judge (IJ) found removability and denied his
asylum application and his alternative request for voluntary departure. The Board of
Immigration Appeals (BIA) affirmed without opinion. Rodriguez appeals, arguing
that he is entitled to asylum and protection under CAT and that the BIA erred in
affirming without opinion. We affirm.
Rodriguez was the only witness to testify in support of his application. He
testified that from 1988 until 1990 he worked for the National Union of the Center
(UNC), an opposition political party in Guatemala. He was not technically employed
by the UNC but made his living selling weapons and working at a local restaurant.
Although he handed out UNC flyers, he never paid dues, attended party meetings, or
held a leadership position. The UNC collapsed in 1992 when its leader was killed.
Rodriguez claims that the military began pressuring him to join in 1985 or 1986, but
he testified that he was not recruited by military personnel but rather by civilians who
wanted him to commit "violent acts." His brother was murdered in 1992, and
Rodriguez believes that he was killed due to his refusal to join the military. He
admitted removability, but claims that he is afraid to return to Guatemala because the
military would kill him.
After hearing Rodriguez's testimony and considering the documentary evidence
submitted, the IJ denied his asylum application. The IJ found his testimony credible,
but held that he was not entitled to asylum because he had not established past
persecution or a reasonable fear of future persecution. The IJ also found that
Rodriguez did not meet his burden for withholding of removal and that there was no
evidence in the record indicating that he would be tortured if returned to Guatemala.
The BIA affirmed without opinion. Rodriguez now petitions for review of the BIA
decision, arguing that he has suffered past persecution and maintains a reasonable fear
of future persecution. He also complains that the BIA's summary affirmance violates
the agency's own regulations as well as the Supreme Court decision in SEC v.
Chenery, 332 U.S. 194 (1947).
Because the BIA affirmed the IJ's decision without opinion, we treat the IJ's
decision as the final agency decision for purposes of judicial review. Amin v.
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Ashcroft, 388 F.3d 648, 650 (8th Cir. 2004). We review the IJ's findings of fact,
including its decision that an applicant has failed to establish eligibility for asylum or
withholding of removal, under the substantial evidence standard, Menendez-Donis v.
Ashcroft, 360 F.3d 915, 917 (8th Cir. 2004), and we will defer to the IJ's findings
"unless any reasonable adjudicator would be compelled to conclude to the contrary."
8 U.S.C. § 1252(b)(4)(B); see also S-Cheng v. Ashcroft, 380 F.3d 320, 323 (8th Cir.
2004).
Rodriguez first contends that he is entitled to asylum. To be eligible for asylum
under the Immigration and Nationality Act, Rodriguez must qualify as a refugee under
8 U.S.C. § 1158(b)(1)(A). A refugee is an alien unable to return to his home country
"because of past persecution or a well-founded fear of future persecution on account
of race, religion, nationality, membership in a particular social group, or political
opinion." 8 U.S.C. § 1101(a)(42)(A). Rodriguez bears the burden to prove that he is
entitled to refugee status. 8 C.F.R. § 1208.13(a).
No testimony or evidence showed that Rodriguez was ever physically harmed
or threatened on account of his refusal to join the military. Moreover, forced
recruitment itself is not persecution; the petitioner must show that the recruitment was
based on one of the five statutory criteria in § 1101(a)(42)(A). See Dominguez v.
Ashcroft, 336 F.3d 678, 680 (8th Cir. 2003). Here, Rodriguez never showed that his
recruitment was based on any of the five criteria. Although he testified regarding the
death of his brother, he was unable to show that this death was on account of a
protected ground or that it was in any way tied to him. See Jalloh v. Gonzales, 418
F.3d 920, 923 (8th Cir. 2005).
Similarly, Rodriguez submitted no evidence that the government of Guatemala
would persecute him for evading military service or that his involvement in a now
defunct political party would cause him any problems if he were returned. While he
did provide some evidence indicating that Guatemala is politically unstable, instability
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alone does not establish a reasonable fear of persecution for harm must be
individualized in asylum cases. See Mohamed v. Ashcroft, 396 F.3d 999, 1003 (8th
Cir 2005). We conclude that a reasonable fact finder could have determined that
Rodriguez neither suffered past persecution nor maintained a reasonable fear of future
persecution, and he thus did not qualify as a refugee entitled to asylum.
Petitioner also claims that he is entitled to protection under CAT. To warrant
such protection, Rodriguez must demonstrate that it is more likely than not that he will
be tortured if returned to Guatemala. 8 C.F.R. § 208.16(c)(2). If a petitioner fails to
establish eligibility for asylum, it is likely that he will not succeed under CAT.
Samedov v. Gonzales, 422 F.3d 704, 708 (8th Cir. 2004). A separate analysis under
CAT is only required when the petitioner has presented evidence that he is likely to
be tortured for reasons unrelated to his asylum claim. Alemu v. Gonzales, 403 F.3d
572, 576 (8th Cir. 2005). Petitioner has presented no such evidence, and we conclude
that the IJ did not err in denying petitioner's claim under CAT.
Lastly Rodriguez claims that the BIA's summary affirmance violated its own
regulations and Chenery, 332 U.S. at 196-97, because the BIA did not give a reasoned
explanation susceptible to judicial review. Agency regulations allow the BIA to
render its decision without opinion, 8 C.F.R. § 1003.1(e)(4), and we have previously
concluded that the decision of the immigration judge satisfies the requirement that the
agency provide a reasoned explanation for judicial review under Chenery. See Ngure
v. Ashcroft, 367 F.3d 975, 988 (8th Cir. 2004); Dominguez, 336 F.3d at 680. The
BIA's decision to affirm without opinion "is committed to agency discretion and [is]
not subject to judicial review." Ngure, 367 F.3d at 983. We conclude that the BIA
was within its discretion and acted consistent with its regulations as well as prior
precedent.
Accordingly, we deny the petition for review.
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