Herminio Acevedo-Perez v. Eric Holder, Jr. , 514 F. App'x 682 ( 2013 )

FILED
NOT FOR PUBLICATION MAR 29 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
HERMINIO ANTONIO ACEVEDO- No. 11-71496
PEREZ,
BIA No. A070-076-043
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 20, 2013
San Francisco, California
Before: REINHARDT, TASHIMA and NGUYEN, Circuit Judges.
Herminio Antonio Acevedo-Perez, a native and citizen of Guatemala,
petitions for review of a decision of the Board of Immigration Appeals (“BIA”)
affirming an immigration judge’s denial of his applications for asylum,
withholding of removal, and protection under the Convention Against Torture. He
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
contends that the BIA erred in its determination that he failed to establish past
persecution or an objectively reasonable fear of future persecution. We have
jurisdiction under 8 U.S.C. § 1252. We grant the petition for review and remand to
the BIA for further proceedings.
Although it is true that unfulfilled threats alone generally do not constitute
past persecution, see Lim v. INS, 224 F.3d 929, 936 (9th Cir. 2000), “threats may
be compelling evidence of past persecution, particularly when they are specific and
menacing and are accompanied by evidence of violent confrontations, near-
confrontations and vandalism,” Mashiri v. Ashcroft, 383 F.3d 1112, 1119 (9th Cir.
2004) (citing Ruano v. Ashcroft, 301 F.3d 1155, 1160–61 (9th Cir. 2002)); see also
Kaiser v. Ashcroft, 390 F.3d 653, 658–59 (9th Cir. 2004) (“What matters is
whether the group making the threat has the will or ability to carry it out.” (quoting
Bolanos-Hernandez v. INS, 767 F.2d 1277, 1285 (9th Cir. 1984))).
Here, Acevedo-Perez credibly testified about his role as a civil defender
against guerilla attacks, the letters from guerillas to his mother threatening that he
would be killed if he continued his patrols, the guerillas’ murder of his uncle—also
a civil defender—while they were looking for him, and his flight to the United
States to escape the guerillas’ reach. Taken together, the death threats to Acevedo-
Perez and the related harm to his family, including the murder of someone who
2
held his same politically-sensitive position, all “compel a finding of past
persecution.” Salazar-Paucar v. INS, 281 F.3d 1069, 1075 (9th Cir. 2002); see
also id. (“Evidence of harm to individuals who held the same political positions to
Petitioner’s, similar to the harm to Petitioner’s family, also supports a finding of
past persecution.”).
Having established past persecution, Acevedo-Perez was entitled to a
presumption that he held a reasonable fear of future persecution, shifting the
burden to the government to rebut this presumption by showing changed country
circumstances. See 8 C.F.R. § 1208.13(b)(1)(ii); see also Ahmed v. Keisler, 504
F.3d 1183, 1197 (9th Cir. 2007). In affirming the immigration judge, the BIA did
not afford Acevedo-Perez this presumption. Accordingly, we remand this matter
to the BIA to determine in the first instance whether the government has met its
burden by showing changed country circumstances.1 See Garcia-Martinez v.
Ashcroft, 371 F.3d 1066, 1078 (9th Cir. 2004).
PETITION FOR REVIEW GRANTED; REMANDED.
1
On remand, we urge the BIA to consider our rule that it would be
“fundamentally unfair to permit the BIA to rebut the presumption of persecution
by relying on . . . administrative delay in processing the claims of petitioners.”
Salazar-Paucar, 281 F.3d at 1077.
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