Demecio Cristobal v. Eric Holder, Jr.

Filing

OPINION filed :Petition for review is DENIED, decision not for publication pursuant to local rule 206. Boyce F. Martin , Jr., Circuit Judge; Eric L. Clay, Circuit Judge and Helene N. White, Authoring Judge.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0748n.06
No. 10-3296
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
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DEMECIO CRISTOBAL,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY
GENERAL,
Respondent.

BEFORE:

Nov 03, 2011
LEONARD GREEN, Clerk
ON PETITION FOR REVIEW FROM
THE BOARD OF IMMIGRATION
APPEALS

MARTIN, CLAY, and WHITE, Circuit Judges.

HELENE N. WHITE, Circuit Judge. Demecio Cristobal, a native and citizen of Guatemala, seeks
review of the final order of the Board of Immigration Appeals (BIA) affirming the Immigration
Judge’s (IJ) denial of his petition for asylum, withholding of removal, and protection under the
Convention Against Torture (CAT). We DENY the petition for review.
I.
Cristobal entered the United States on October 22, 1994, and filed his asylum application in
December 1994.

The former Immigration and Naturalization Service commenced removal

proceedings against Cristobal under section 212(a)(6)(A)(i) of the Immigration and Nationality Act
(INA), 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the United States without being admitted

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or paroled, and served Cristobal with a Notice to Appear on April 28, 2000. Cristobal completed
a second application for asylum in August 2000.
On June 12, 2008, an IJ held a hearing on Cristobal’s asylum and related claims. Cristobal
testified that beginning in 1980, he was forced to serve as an unpaid member of the Civil Patrol as
part of Guatemala’s war against leftist guerilla organizations. Cristobal’s primary duty was to serve
as a lookout in his home town of Huehuetenango; he did not claim he engaged in armed conflict with
guerrillas as part of his service.
In July 1991, Cristobal had a family reunion at his house. During that reunion, twenty armed
members of a guerrilla group arrived and demanded to know why Cristobal and his family were
helping the army rather than fighting with the guerrillas. The guerillas told Cristobal that things had
to change and threatened to come back and take Cristobal and his family by force. The guerrillas
left when they heard dogs barking, and Cristobal and his family were not physically harmed.
Not long after that incident, Cristobal moved his family to the capital city, where he lived for
four years before leaving for the United States. Cristobal did not find his stay in Guatemala City
peaceful because of its many problems, including a high murder rate. He testified he was afraid to
return to Guatemala because “there’s no peace. There’s always problems there.” He said he heard
cases of people who returned and who were killed, and that the people who took the side of the
guerrillas would recognize members of the Civil Patrol and create problems for them. Cristobal did
not testify that he faced any specific incidents during his stay in Guatemala City.
The IJ found that Cristobal’s account of the single incident at his family reunion did not
establish past persecution. Additionally, because Cristobal was able to avoid problems with the
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guerrillas by moving to the capital, the IJ found he had not shown that his fear of the guerrillas
existed country-wide. The IJ further found that Cristobal’s “fear of harm because of his prior civil
patrol membership is now too remote to support a well-founded fear of persecution,” particularly
because his role in the Civil Patrol “was not so significant, that he would now be recognized as a
person who had opposed the guerillas, particularly in areas other than his hometown.” The IJ
therefore denied Cristobal’s application for asylum and related relief and ordered his removal to
Guatemala.
On June 25, 2008, Cristobal timely appealed the IJ’s decision to the Board of Immigration
Appeals. On February 17, 2010, the BIA agreed with the IJ’s conclusions that Cristobal had not
established past persecution or a well-founded fear of future persecution and dismissed Cristobal’s
appeal. In finding that Cristobal had failed to establish past persecution, the BIA reiterated that in
the sole encounter Cristobal had with guerrilla forces, “no one was harmed, and the guerrillas left
because they heard dogs barking.” The BIA added that Cristobal lived in Guatemala City “for four
years without incident” before coming to the United States. In rejecting Cristobal’s claim of a wellfounded fear of future persecution, the BIA concluded that the news accounts submitted by Cristobal
did not establish a well-founded fear because they related to general country conditions and
contained scant evidence that former Civil Patrol members have been subjected to mistreatment by
former guerrillas.
On March 16, 2010, Cristobal timely filed a petition for review of the BIA’s order dismissing
Cristobal’s appeal.

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II.
The IJ, acting for the Attorney General, has discretion to grant asylum to any alien who
qualifies as a “refugee.” Yu v. Ashcroft, 364 F.3d 700, 702 (6th Cir. 2004) (citing 8 U.S.C. §
1158(b)). A refugee is an alien who is unable or unwilling to return to his home 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. § 1101(a)(42)(A).
Cristobal argues that the BIA erred in finding that he failed to establish past persecution or
a well-founded fear of future persecution. This Court “review[s] administrative findings of fact,
such as whether an alien qualifies as a refugee, under the substantial evidence standard.” Singh v.
Ashcroft, 398 F.3d 396, 400 (6th Cir. 2005). “Such findings are ‘conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.’” Id. (citing Yu, 364 F.3d at 702).
Where the BIA adopts the IJ’s reasoning, this Court reviews those aspects of the IJ’s decision
directly. Id. at 401.
A. Past Persecution
Persecution is “the infliction of harm or suffering by the government, or persons a
government is unwilling or unable to control, to overcome a characteristic of the victim.” Khalili
v. Holder, 557 F.3d 429, 435 (6th Cir. 2009) (quoting Pilica v. Ashcroft, 388 F.3d 941, 950 (6th Cir.
2004)) (internal quotation marks omitted). Persecution “requires more than a few isolated incidents
of verbal harassment or intimidation, unaccompanied by any physical punishment, infliction of harm,
or significant deprivation of liberty.” Japarkulova v. Holder, 615 F.3d 696, 699 (6th Cir. 2010)
(quoting Mikhailevitch v. INS, 146 F.3d 384, 390 (6th Cir. 1998)) (finding that a threat by a
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government minister to arrange a fatal “accident” if the applicant did not abandon efforts to expose
government corruption did not amount to persecution standing alone, particularly where the
applicant stayed in her country for several more years without suffering any physical mistreatment).
Although “physical abuse is not an absolute prerequisite to a finding of persecution,” id. at 700,
threats by themselves will only amount to persecution in exceptional cases. Id. at 701. “Only
‘threats of a most immediate and menacing nature’ can possibly qualify as past persecution.” Id.
(citing Boykov v. INS, 109 F.3d 413, 416 (7th Cir. 1997)).
Here, Cristobal was not physically harmed by the guerrilla groups at any point during his
service in the Civil Patrol. The evidence suggests he was subjected to only one threatening incident
in which guerrilla members angrily told Cristobal they would forcibly conscript him and his family
members at some later date and might have harmed them if barking dogs had not scared them away.
The threat that Cristobal faced was certainly not “of a most immediate and menacing nature” such
that it could qualify by itself as past persecution. Therefore, the BIA’s conclusion that Cristobal
failed to establish past persecution is clearly supported by substantial evidence.
B. Well-Founded Fear of Future Prosecution
An applicant has a well-founded fear of persecution if “(1) he or she has a fear of persecution
in his or her country on account of race, religion, nationality, membership in a particular social
group, or political opinion; (2) there is a reasonable possibility of suffering such persecution if he
or she were to return to that country; and (3) he or she is unable or unwilling to return to that country
because of such fear.” Mikhailevitch, 146 F.3d at 389 (citing 8 C.F.R. 1208.13(b)(2)(i)). “To
establish that his fear of persecution is well-founded, a petitioner must present specific facts which
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demonstrate actual persecution or establish ‘good reason to fear persecution on one of the specified
grounds.’” Dolores v. INS, 772 F.2d 223, 226 (6th Cir. 1985) (quoting Carvajal-Munoz v. INS, 743
F.2d 562 (7th Cir. 1984)). The applicant “need not prove that it is ‘more likely than not’ that he or
she will be persecuted in his or her own country.” INS v. Cardoza-Fonseca, 480 U.S. 421, 449
(1987). An applicant does not have a well-founded fear if he or she “could avoid persecution by
relocating to another part of the applicant’s country . . . if under all circumstances it would be
reasonable to expect the applicant to do so.” 8 C.F.R. 1208.13(b)(2)(ii).
In support of his contention that he may be harmed on account of his previous membership
in the Civil Patrol, Cristobal offered a variety of news accounts and human rights reports of violence
in Guatemala. However, the articles were largely irrelevant to the subject of how former Civil Patrol
members are treated by guerrillas. Among the news articles provided by Cristobal, most of which
are more than ten years old, the most relevant information is in a 2007 U.S. Department of State
Country Report on Guatemala, which described “social cleansing” groups alleged to include former
soldiers and guerrillas that had committed at least thirty murders in the town of Santiago Atitlan. But
the report does not provide any evidence that the violence targeted former Civil Patrol members such
as Cristobal or that otherwise would put Cristobal in more danger than anyone else in the country.
Additionally, the news accounts provide no evidence that such murders are occurring in his former
town of Huehuetenango.
Cristobal also stated that former guerrilla members would recognize and create problems for
former Civil Patrol members. But the IJ found Cristobal’s fear of harm too remote to constitute a
well-founded fear of persecution, particularly in light of his long absence from Guatemala and his
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limited role in the patrol, which “was not so significant, that he would now be recognized as a person
who had opposed the guerillas, particularly in areas other than his hometown.”
Cristobal argues that even if the evidence provided of the possibility of future persecution
was weak, it was sufficient to meet the well-founded fear standard, which does not require an
applicant to show a high likelihood of persecution.1 However, although Cristobal believes he will
be recognized in his hometown as a supporter of the army, he does not provide specific facts that
establish a good reason to fear he will be persecuted, particularly because of the passage of time, his
limited role in the Civil Patrol, and the absence of past persecution. Nor does Cristobal establish that
there is a reasonable possibility that he would be persecuted in towns other than his own. Once
Cristobal moved to Guatemala City, he faced neither persecution nor any other threatening incidents
on account of his membership in the Civil Patrol.2 Accordingly, substantial evidence supports the

1

Cristobal relies heavily on dicta in INS v. Cardoza-Fonseca, 480 U.S. 421 (1987), to argue
that a ten percent chance of persecution establishes a well-founded fear of persecution. However,
that case held that asylum applicants need not show a clear probability of persecution to meet their
burden. Cardoza-Fonseca, 480 U.S. at 430. And although the Supreme Court rejected the view that
“because an applicant only has a 10% chance of being shot, tortured, or otherwise persecuted, that
he or she has no ‘well-founded fear’ of the event happening,” Cardoza-Fonseca, 480 U.S. at 440,
the Court took the ten percent figure from a hypothetical country in which one in every ten adult
males is put to death or sent to a remote labor camp. See Id. at 431. The hypothetical assumed that
a group is actually being persecuted, even though the chance that any given individual will be
persecuted is ten percent. Cardoza-Fonseca did not alter the rule that applicants must establish that
persecution is a reasonable possibility. Id. at 440 (citing INS v. Stevic, 467 U.S. 407, 424–25
(1984)).
2

Cristobal also argues he does not need to show he would be singled out individually for
persecution if there is a pattern or practice of persecution of similarly situated individuals. Cristobal
requests this Court to reverse the BIA’s decision on the basis that it did not properly address whether
there was a pattern or practice of such persecution. However, the BIA did find that Cristobal offered
scant evidence of any mistreatment of members of the Civil Patrol. This finding indicates, a fortiori,
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conclusion of the BIA that Cristobal has failed to establish a well-founded fear of future prosecution
on account of his past service in the Civil Patrol.
C.
Because substantial evidence supports the conclusions that Cristobal did not establish past
persecution or a well-founded fear of future persecution, Cristobal fails to satisfy the burden of proof
for his asylum claim.
III.
In light of the foregoing discussion, we DENY Cristobal’s petition for review of the BIA
decision dismissing his application for asylum and related relief.

that the BIA found Cristobal did not establish any pattern or practice of persecution of members of
the Civil Patrol.
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