Felipe Valiente-Cifuentes v. Eric Holder, Jr. , 438 F. App'x 532 ( 2011 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-3512
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Felipe Leonel Valiente-Cifuentes; *
Osmar Rodrigo Valiente-Mazariego, *
*
Petitioners, *
* Petition for Review of
v. * an Order of the Board
* of Immigration Appeals.
Eric H. Holder, Jr., Attorney General *
of the United States, * [UNPUBLISHED]
*
Respondent. *
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Submitted: June 14, 2011
Filed: August 25, 2011
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Before LOKEN, BEAM, and GRUENDER, Circuit Judges.
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PER CURIAM.
Felipe Valiente-Cifuentes (Valiente) and his son, natives and citizens of
Guatemala, petition for review of an order of the Board of Immigration Appeals (BIA)
that affirmed the Immigration Judge's (IJ) denial of asylum and withholding of
removal. We deny the petition.
In 1992, Valiente entered the United States without inspection, and his son
followed suit approximately eleven years later. In 2005, the government issued
Notices to Appear, charging Valiente and his son with removeability. They conceded
removeability but sought relief from removal by applying for asylum and withholding
of removal based on Valiente' claim that he was threatened in Guatemala as a result
of his work as a military recruiter. Before the IJ, Valiente testified that he served as
a recruiter for the Guatemalan army between 1985 and 1990 in San Marcos,
Guatemala. Valiente claimed that he received five written death threats during that
time, but he could not remember whether the threats were signed. He also testified
that unknown individuals sought him out at his house, but he was never present and
he did not know why they were looking for him. Valiente explained that, due to such
threats, he quit his job as a recruiter and moved to Guatemala City. He remained there
for about eighteen months and then moved to another city in Guatemala before
entering the United States. Valiente received no threats after he left San Marcos.
The IJ found that Valiente failed to demonstrate past persecution or a well-
founded fear of future persecution and denied relief, emphasizing that (1) Valiente did
not know the identity of his persecutors; (2) the threats were not accompanied by
physical confrontation or harm; (3) he received no threats after he left San Marcos;
and (4) Valiente failed to demonstrate a nexus between the threats and his military
service. Valiente and his son appealed to the BIA, which affirmed the IJ's decision
and dismissed the appeal. The BIA concluded that Valiente failed to demonstrate that
his past fear of unknown individuals constituted persecution and that he failed to
establish a connection between any alleged persecution and a protected ground–i.e.,
his political opinion or membership in a particular social group. The BIA also
emphasized that some eighteen years had passed since Valiente left Guatemala.
Valiente and his son petition this court for review.
Because the BIA essentially adopted the IJ's opinion and added some of its own
reasoning, we review both decisions. Khrystotodorov v. Mukasey, 551 F.3d 775, 781
(8th Cir. 2008). We review the agency's determinations regarding asylum and
withholding of removal for substantial evidence. Id. Under this "extremely
deferential standard of review," we will not disturb the agency's factual findings
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"unless any reasonable adjudicator would be compelled to conclude to the contrary."
Id. (quotations omitted). To qualify for asylum, an alien bears the burden of
establishing that he is a "refugee"–a person who is unwilling or unable to return to his
country because of persecution or a well-founded fear of persecution on account of
race, religion, nationality, membership in a particular social group, or political
opinion. 8 U.S.C. §§ 1158(b)(1)(A)-(B), 1101(a)(42)(A). If an alien establishes that
he suffered past persecution on account of a protected ground, he is entitled to a
rebuttable presumption of future persecution. 8 C.F.R. § 1208.13(b)(1). Where an
alien fails to establish eligibility for asylum, he cannot meet the more rigorous
standard of proof for withholding of removal. Cao v. Gonzales, 442 F.3d 657, 661
(8th Cir. 2006).
Valiente challenges the agency's determination that he failed to demonstrate that
the harassment he suffered in Guatemala–multiple written death threats and visits to
his house while he was not present–rose to the level of past "persecution." This
argument is unconvincing because Valiente suffered no physical harm and he was
never physically confronted by the unknown individuals at issue. See Setiadi v.
Gonzalez, 437 F.3d 710, 713 (8th Cir. 2006) ("Past persecution does not normally
include unfulfilled threats of physical injury."). It may be that "[i]n certain extreme
cases . . . repeated and especially menacing death threats can constitute a primary part
of a past persecution claim, particularly where those threats are combined with
confrontation or other mistreatment." Lim v. INS, 224 F.3d 929, 936 (9th Cir. 2000)
(emphasis added). But, this is not such an "extreme case," id. (threats, including death
threats, constitute past persecution only when they cause significant actual suffering
or harm), and, even if it was, Valiente's attempt to demonstrate past persecution fails
for other reasons.
Indeed, Valiente wholly failed to identify who was responsible for the threats.
He could not recall whether the threats were signed, the threats did not state why they
were made, and he did not know who visited his house. As a result, "the [agency]
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could not conclude that the [threats were] an act of persecution, rather than a criminal
act." Flores-Calderon v. Gonzales, 472 F.3d 1040, 1043 (8th Cir. 2007); see also
Menendez-Donis v. Ashcroft, 360 F.3d 915, 917-19 (8th Cir. 2004) (affirming the
agency's denial of asylum where there was a "lack of clear evidence as to the identity
of [the alien's] attackers or the motives for their attacks"). Moreover, Valiente had the
burden of establishing that he was persecuted "by the government or by persons that
the government is unwilling or unable to control." Cubillos v. Holder, 565 F.3d 1054,
1057 (8th Cir. 2009) (internal quotation omitted). Because Valiente failed to identify
the individuals responsible for the conduct at issue, "it cannot be determined that these
acts were perpetrated by persons the government is unwilling or unable to control."
Flores-Calderon, 472 F.3d at 1043. Valiente's evidence of past persecution is simply
not "so compelling that no reasonable factfinder could arrive at the conclusion reached
by the [agency]." Id. (internal quotation omitted).
The agency's determination that Valiente failed to demonstrate a well-founded
fear of future persecution is also supported by substantial evidence. Because Valiente
failed to demonstrate past persecution, he had the buren of demonstrating that his fear
of future persecution is both subjectively and objectively reasonable. Hassan v.
Ashcroft, 388 F.3d 661, 666 (8th Cir. 2004). In other words, Valiente "must establish
with credible evidence that he genuinely fears persecution and show through credible,
direct, and specific evidence that a reasonable person in his position would fear
persecution." Id. Again, Valiente's failure to identify those responsible for the threats
and visits to his house undermines his claim that he has a well-founded fear of future
persecution. See Flores-Calderon, 472 F.3d at 1043; Cubillos, 565 F.3d at 1058. The
fact that Valiente received no threats after he relocated to Guatemala City also belies
his claim. 8 C.F.R. § 1208.13(b)(2)(ii) ("An applicant does not have a well-founded
fear of persecution if the applicant could avoid persecution by relocating to another
part of the applicant's country."); Melecio-Saquil v. Ashcroft, 337 F.3d 983, 987-88
(8th Cir. 2003) (explaining that alien's ability to safely relocate within Guatemala
following guerillas' threats cuts against finding a well-founded fear of future
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persecution). While Valiente may have a subjective fear of persecution, he has failed
to demonstrate through "credible, direct, and specific evidence" that such fear is
objectively reasonable.
Because Valiente and his son failed to meet the burden of proof for asylum,
their claim for withholding of removal necessarily fails as well. Cao, 442 F.3d at 661.
For the foregoing reasons, the petition for review is denied.
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