C. Flores-Calderon v. Alberto Gonzales ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-1739
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Carlos Alberto Flores-Calderon, and *
Magaly Vilchez-Romani, *
*
Petitioners, *
*
v. * Petition for Review from the Board
* of Immigration Appeals.
Alberto Gonzales, Attorney General *
of the United States of America, *
*
Respondent. *
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Submitted: October 16, 2006
Filed: January 8, 2007
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Before MELLOY, BEAM, and BENTON, Circuit Judges.
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BENTON, Circuit Judge.
Carlos Alberto Flores-Calderon and Magaly Edith Vilchez-Romani, husband
and wife, seek review of an order of the Board of Immigration Appeals (BIA)
dismissing their appeal for asylum. Having jurisdiction under 8 U.S.C. § 1252, this
court denies the petition for review.
I.
Flores-Calderon and Vilchez-Romani, Peruvian natives, entered the United
States in October 2002 and September 2001, respectively, on visitors' visas. After
overstaying, they jointly applied for asylum, withholding of removal, protection under
the Convention Against Torture, or voluntary departure. At a joint removal
proceeding, they conceded removability and renewed their application. The
Immigration Judge (IJ) denied all requests except voluntary departure. The BIA
dismissed the appeal and adopted the findings of the IJ.
Flores-Calderon and Vilchez-Romani assert several incidents of persecution
based on his military service. Flores-Calderon served in the Peruvian navy for 16
years as a nurse and dental technician. From 1992 until 1994, he was assigned as a
nurse to a unit trained to fight subversives and narcotraffickers. Flores-Calderon
testified that some of his duties included patrolling rural areas in the rainforest, as well
as capturing and interrogating guerrillas. For security purposes each member of the
unit was known only by code name.
Flores-Calderon avers that in October 1999,when he was off duty and driving
home, four armed men surrounded his car and began hitting him on the head and back
with handguns. He was forced into the back of the car, covered, and taken to another
location. There, the men left him, taking his military identification and car. Flores-
Calderon reported this incident to the police and the military.
As a result of the carjacking, Flores-Calderon theorizes that his military
identification fell into the hands of a terrorist group he had fought while a member of
the anti-subversive unit. In 2000, Flores Calderon and his wife began receiving
threatening phone calls and letters. The callers never identified themselves, but said
they would make Flores-Calderon and Vilchez-Romani suffer and then kill them.
Flores-Calderon and Vilchez-Romani reported receiving five telephone calls each and
three letters. The threatening calls and letters persisted despite a change in telephone
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number and moves to different homes. Flores-Calderon destroyed the letters, calling
them "silliness," and did not report any of the calls or letters to the police or military.
Flores-Calderon and Vilchez-Romani testified that they were living in fear,
changing locations and taking different routes to work. She left Peru in September
2001. He remained until October 2002 after retiring from the Navy in April 2002. He
did not receive any threatening calls or letters after his retirement.
II.
Flores-Calderon and Vilchez-Romani contend that there is substantial evidence
they suffered past persecution and have a reasonable fear of future persecution
because of his military career and the Peruvian government's inability to control the
activities of traffickers and guerrillas. The IJ and the BIA held that Flores-Calderon
and Vilchez-Romani failed to meet their burden of establishing past persecution, or
fear of future persecution under any of the protected grounds conferring refugee
status. See 8 U.S.C. § 1101(a)(42)(A).
A.
This court must determine whether the denial of asylum is "supported by
reasonable, substantial, and probative evidence" on the record as a whole.
Kratchmarov v. Heston, 172 F.3d 551, 554 (8th Cir. 1999). The BIA decision is not
overturned unless the evidence is "so compelling that no reasonable fact finder could
fail to find the requisite fear of persecution." Perinpanathan v. INS, 310 F.3d 594,
597 (8th Cir. 2002) (quoting Feleke v. INS, 118 F.3d 594, 598 (8th Cir. 1997)).
To be eligible for asylum, Flores-Calderon and Vilchez-Romani must qualify
as refugees under 8 U.S.C. 1158(b)(1)(A). Rodriguez v. Gonzales, 441 F.3d 593, 595
(8th Cir. 2006). A refugee is "any person who is outside any country of such person's
nationality . . . who is unable or unwilling to return . . . because of persecution or a
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well-founded fear of persecution on account of race, religion, nationality, membership
in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A). Flores-
Calderon claims persecution on account of a political opinion, imputed by his military
service opposing the guerrillas and subversives.
Flores-Calderon presented the following evidence to support his request for
asylum: the 1999 carjacking where his car and military ID were taken, and the
multiple threatening phone calls and letters. Flores-Calderon does not contend that
persecution occurred at the hands of the government, but rather was committed by
local terrorists or guerrillas. "Actions by private parties are not attributable to the
government, absent a showing that the harm is inflicted by persons that the
government is unwilling or unable to control." Kimumwe v. Gonzales, 431 F.3d 319,
322-23 (8th Cir. 2005).
No substantial evidence was presented identifying the carjackers or the persons
making the threatening calls and letters. Because the carjackers were not identified,
the IJ could not conclude that the carjacking was an act of persecution, rather than a
criminal act. Similarly, there is not substantial evidence that the calls and letters were
initiated by guerrillas or terrorists. Therefore, it cannot be determined that these acts
were perpetrated by persons the government is unwilling or unable to control. The
belief that the carjackers, callers, and writers were members of a guerrilla group is
speculative, as demonstrated by Flores-Calderon's testimony that "it's possible" his ID
fell into the hands of terrorists and therefore, the terrorists "probably were able to
enter into my personal database." This evidence is not so compelling that "no
reasonable factfinder could arrive at the conclusion reached by the BIA." Yang v.
Gonzales, 427 F.3d 1117, 1120 (8th Cir. 2005).
There is no substantial evidence connecting the claims to one of the protected
grounds. The Board's determination that Flores-Calderon and Vilchez-Romani did not
suffer past persecution is supported by substantial evidence on the record.
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B.
Although Flores-Calderon and Vilchez-Romani failed to establish past
persecution, they are still eligible for asylum if they can show a "well-founded fear of
future persecution." Samedov v. Gonzales, 422 F.3d 704, 708 (8th Cir. 2005); see 8
C.F.R. § 208.13(b). To establish a well-founded fear of persecution, Flores-Calderon
and Vilchez-Romani must demonstrate that it is both subjectively genuine and
objectively reasonable. Shoaira v. Ashcroft, 377 F.3d 837, 844 (8th Cir. 2004). The
subjective prong may be proved by the applicant's testimony, while the objective
element requires "credible, direct, and specific evidence that a reasonable person in
[their] position would fear persecution if returned to [the] country of origin." Id.While their fear may be subjectively genuine, both the IJ and BIA held that they failed
to satisfy the burden of showing that their fear was objectively reasonable.
The fear of future persecution must not be "so speculative or general as to lack
credibility" and Flores-Calderon and Vilchez-Romani must show that the evidence
they presented "was so compelling that no reasonable fact finder could fail to find the
requisite fear of persecution." Miranda v. INS, 139 F.3d 624, 627 (8th Cir. 1998).
Flores-Calderon testified that he did not receive threatening telephone calls or
letters during the six months between his retirement from the military and his
departure from Peru. Flores-Calderon and Vilchez-Romani never identified the
carjackers, callers, or writers. See Ruzi v. Gonzales, 441 F.3d 611, 617 (8th Cir.
2006). In addition, the IJ determined that the guerrilla groups in Peru have been
marginalized since then, now concentrating on high-profile leaders. Compare
Kratchmarov, 172 F.3d at 554. Flores-Calderon points to evidence that guerrillas
continued to operate in 2001 and 2003. Although Flores-Calderon and Vilchez-
Romani have a subjective fear of being harmed, they did not present credible, direct,
and specific evidence of a fear of future persecution. The IJ reasonably concluded that
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it is unlikely that a retired member of the military medical service, whose last major
involvement in combat was in 1994, would be the subject of persecution.
The denial of asylum is supported by reasonable, substantial, and probative
evidence on the record as a whole. Flores-Calderon and Vilchez-Romani fail to meet
their burden of showing past persecution, or a well-founded fear of future persecution
on account of a protected ground. The petition for review is denied.
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