Javier Cifuentes, et al v. Eric Holder, Jr.

Filing

OPINION filed : Because a reasonable adjudicator would not be compelled to conclude otherwise, we AFFIRM this denial. We DENY the petition, decision not for publication pursuant to local rule 206. Richard F. Suhrheinrich, Circuit Judge; Jeffrey S. Sutton, Circuit Judge and Deborah L. Cook, AUTHORING Circuit Judge.

Case: 10-3915

Document: 006111178226

Filed: 01/09/2012

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0027n.06
FILED

No. 10-3915

Jan 09, 2012
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

JAVIER ADOLFO CIFUENTES, JOHNNY
X. MACARIO, SARA K. MACARIO,
Petitioners,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.

)
)
)
)
)
)
)
)
)
)

LEONARD GREEN, Clerk

ON PETITION FOR REVIEW FROM THE
U N IT E D S T A T E S B O A R D O F
IMMIGRATION APPEALS

Before: SUHRHEINRICH, SUTTON, and COOK, Circuit Judges.

COOK, Circuit Judge. In August 2006, the government initiated removal proceedings
against Petitioner Javier Cifuentes and his children, Johnny and Sara Macario. Cifuentes and his
children applied for asylum and withholding of removal. An immigration judge (“IJ”) denied these
applications because Cifuentes failed to establish either past persecution or a well-founded fear of
future persecution. The IJ likewise denied Cifuentes’s application for “special rule” cancellation of
removal under section 203 of the Nicaraguan and Central American Relief Act of 1997
(“NACARA”). The Board of Immigration Appeals (“BIA”) then dismissed his appeal.1

1

The IJ granted Cifuentes’s application for cancellation of removal under § 240A(b) of the
Immigration and Nationality Act (“INA”). The IJ likewise granted the cancellation application filed
by Cifuentes’s wife, Blanca Zarate, who is not a party to this appeal. The cancellations do not extend
to their children, derivative petitioners Johnny and Sara Macario. Neither Cifuentes nor the
government appealed this portion of the IJ’s decision.

Case: 10-3915

Document: 006111178226

Filed: 01/09/2012

Page: 2

No. 10-3915
Cifuentes v. Holder
We review questions of law de novo. See Stserba v. Holder, 646 F.3d 964, 971 (6th Cir.
2011). Conversely, we review factual findings for substantial evidence and reverse only if “any
reasonable adjudicator would be compelled to conclude to the contrary.” Khalili v. Holder, 557 F.3d
429, 435 (6th Cir. 2009) (quoting 8 U.S.C. § 1252(b)(4)(B)) (citation and internal quotation marks
omitted).

Substantial evidence supports the IJ’s conclusion that Cifuentes is ineligible for asylum, see
8 U.S.C. § 1158, withholding of removal, see 8 U.S.C. § 1231(b)(3), or protection under the
Convention Against Torture (“CAT”), see 8 C.F.R. §§ 1208.16(c), 1208.17, 1208.18. Cifuentes did
not testify that he suffered persecution or torture in Guatemala before he entered the United States.
Rather, he expressed a vague fear that if deported, he “could be” harmed or have a “negative
experience” at the hands of the government, a neighbor, or “people in gangs thinking that he was
returning to Guatemala with money.” These “unsupported assumptions or suppositions,” as the IJ
appropriately found, evince neither an objectively reasonable, well-founded fear of returning to
Guatemala nor a likelihood that he will be tortured. Because Cifuentes fails to meet his asylum
burden of proof, he also fails to satisfy the higher burden required to establish eligibility for
withholding of removal. See Rreshpja v. Gonzales, 420 F.3d 551, 557 (6th Cir. 2005).

We likewise affirm the IJ’s denial of Cifuentes’s “special rule” application for cancellation
of removal. Cifuentes’s stated basis for special rule eligibility is that he registered for benefits under
the settlement agreement in American Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal.

-2-

Case: 10-3915

Document: 006111178226

Filed: 01/09/2012

Page: 3

No. 10-3915
Cifuentes v. Holder
1991). The IJ concluded that Cifuentes failed to demonstrate that he timely applied for ABC
benefits. See 8 U.S.C. § 1229a(c)(4)(A) (“An alien applying for relief or protection from removal
has the burden of proof to establish . . . the applicable eligibility requirements”); id. § 1229a(c)(4)(C)
(permitting IJ to “base a credibility determination on the demeanor, candor, or responsiveness of the
applicant or witness, the inherent plausibility of the applicant’s or witness’s account, the consistency
between the applicant’s or witness’s written and oral statements . . . , [and] the consistency of such
statements with other evidence of record”). Cifuentes testified before the IJ that in 1990, he “went
to a notary office with other friends” in California and “fill[ed] out some forms,” though he “could
not testify exactly as to the nature or purpose of those forms.” He claims he lost his copy of this
paperwork and did not check back with the Immigration Service for “many, many years.” Silvan
Lopez submitted an affidavit to the IJ on Cifuentes’s behalf stating that he saw Cifuentes filling out
paperwork at an office where individuals were applying for ABC benefits, but Lopez’s affidavit
contradicted Cifuentes’s account of how they met and, in any case, Lopez did not specifically attest
that he saw Cifuentes fill out ABC paperwork. The IJ ultimately concluded that Cifuentes’s story
was “not plausible or credible.” Because a reasonable adjudicator would not be compelled to
conclude otherwise, we affirm this denial.

We deny the petition.

-3-