Aroldo Solis-Nolasco v. Eric Holder, Jr.
Per Curiam OPINION filed : The petition for review of withholding of removal is DENIED,: The petition for review of the privilege of voluntary departure is REMANDED to the BIA for further consideration, decision not for publication. Danny J. Boggs, Circuit Judge; Eugene E. Siler , Jr., Circuit Judge and David D. Dowd , Jr., U.S. District Judge., NDO
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0777n.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ERIC H. HOLDER, JR., Attorney General,
Aug 21, 2013
DEBORAH S. HUNT, Clerk
ON PETITION FOR REVIEW
FROM THE UNITED STATES
BOARD OF IMMIGRATION
BEFORE: BOGGS and SILER, Circuit Judges; DOWD, District Judge.*
PER CURIAM. Aroldo Solis-Nolasco requests judicial review of the Board of Immigration
Appeals’s decision to affirm the Immigration Judge’s denial of his application for withholding of
removal and its decision not to reinstate his voluntary-departure period. For the following reasons,
the petition is denied in part and remanded in part.
Petitioner Aroldo Solis-Nolasco (“Petitioner” or “Solis-Nolasco”) is a male from the
Ixchiguán village in San Marcos, Guatemala and is ethnically Mayan and Mamean. Administrative
Record (“AR”) 100. He entered the United States in 2001 without inspection by an immigration
officer. AR 115, 270.
The Department of Homeland Security (“DHS”) filed a Notice to Appear in July of 2010 to
commence removal proceedings against Petitioner pursuant to the Immigration and Nationality Act
The Honorable David D. Dowd, Jr., United States District Judge for the Northern District
of Ohio, sitting by designation.
Solis-Nolasco v. Holder
of 1952 (“INA”) §240, 8 U.S.C. §1299(a). AR 343-345. Petitioner filed an application for
withholding of removal pursuant to INA §241(b)(3), 8 U.S.C. §1231(b)(3), and for protection under
the Convention Against Torture (“CAT”) pursuant to 8 C.F.R. §§ 1208.16(c), 1208.18. AR 269-280.
In the alternative, he requested the privilege of voluntary departure. AR 27. In his application for
withholding of removal and protection under CAT, Petitioner indicated that he has been persecuted
in Guatemala because of one of the five grounds protected by the INA, namely his race and
membership in a particular social group. AR 274. He further indicated that he was afraid of being
subjected to torture in his home country. AR 275.
At a hearing before the Immigration Judge (“IJ”), Petitioner testified that members of the
neighboring village of Tajumulco persecuted members of his village, killed his parents, burned down
his house, and tortured him because the residents of that neighboring village wanted to take over the
land that Petitioner and his family lived on. AR 101-106. He was not sure specifically when or in
what years this mistreatment occurred, and he was vague in describing the specific mistreatment that
he suffered. See AR 101-110. Because of this alleged mistreatment, Petitioner came to the United
States through California in 2001. See AR 115-116. Petitioner’s sisters, children, and mother-in-law
still live in Guatemala. AR 120-121.
Petitioner supported his allegations by submitting articles, reports, and affidavits from his
sister and the Mayor of Ixchiguán describing the land dispute between the two villages and the
general conditions in the area. AR 171-175, 183-266, 301-303. Petitioner did not submit any further
corroborative evidence that specifically described his parents’ death or his personal mistreatment.
See AR 69-71.
Solis-Nolasco v. Holder
On July 19, 2011, the IJ denied Solis-Nolasco’s application for withholding of removal under
the INA because Petitioner’s claim of past persecution was not sufficiently corroborated and
Petitioner did not establish a nexus to a protected ground. AR 72. The IJ also denied Petitioner’s
request for protection under the CAT because Petitioner’s alleged mistreatment did not constitute
torture at the hand of a government force as defined in the regulations. AR 72. Although the IJ
denied Petitioner’s claims for withholding of removal and for protection under the CAT, Petitioner
was granted the privilege of voluntary departure conditioned upon posting of a bond in the amount
of $500 within five business days. AR 73-74. Alternatively, the IJ imposed an order of removal to
Guatemala if Petitioner failed to post bond in a timely manner or to depart as required. AR 73-74.
On October 1, 2012, the Board of Immigration Appeals (“BIA”) adopted the IJ’s reasoning
and dismissed Petitioner’s appeal. See AR 3-4. In its dismissal, the BIA indicated that “[t]he record
does not reflect that the respondent submitted timely proof of having paid the voluntary departure
bond.” AR 4. Therefore, the BIA did not reinstate the voluntary-departure period granted by the IJ,
but it instead ordered Petitioner removed pursuant to the IJ’s alternate order. AR 4.
II. Standard of Review
The decision of the BIA is the final agency decision that Solis-Nolasco asks the court to
review, but when the BIA adopts the IJ’s decision, we also review the IJ’s decision to the extent that
it was adopted and supplemented by the BIA. See Ceraj v. Mukasey, 511 F.3d 583, 588 (6th Cir.
2007). The court decides the petition for review “only on the administrative record on which the
order of removal is based.” 8 U.S.C. §1252(b)(4)(A). The factual findings of the administrative
record are reviewed under the substantial-evidence standard. Hamida v. Gonzales, 478 F.3d 734,
736 (6th Cir. 2007). This means that the findings must be upheld if “supported by reasonable,
Solis-Nolasco v. Holder
substantial, and probative evidence on the record considered as a whole.” I.N.S. v. Elias-Zacarias,
502 U.S. 478, 481 (1992) (internal quotation marks omitted); Camara v. Holder, 705 F.3d 219, 223
(6th Cir. 2013).
III. Withholding of Removal
The INA protects an alien from removal if his life or freedom would be threatened in the
designated country of removal based on one of five grounds: race, religion, nationality, membership
in a particular social group, or political opinion. 8 U.S.C. §1231(b)(3)(A). An alien seeking
withholding of removal under this section bears the burden of establishing a clear probability that
his life or freedom would be threatened in the proposed country of removal on account of one of
those five protected grounds. See 8 C.F.R. §1208.16(b); I.N.S. v. Stevic, 467 U.S. 407, 413 (1984).
One way an alien may satisfy this burden is by showing that he suffered past persecution on account
of one of the five protected grounds. 8 C.F.R. §1208.16(b)(1).
If an alien establishes past persecution, then “it shall be presumed that the applicant's life or
freedom would be threatened in the future in the country of removal on the basis of the original
claim.” 8 C.F.R. §1208.16(b)(1)(i). Once the alien has established the presumption that his life or
freedom would be threatened, the burden of proof rests on the government to rebut such presumption
by showing “that there has been a fundamental change in circumstances in the proposed country of
removal or that the applicant could reasonably be relocated to another part of the country, such that
his life or freedom would not be threatened.” Haider v. Holder, 595 F.3d 276, 283-84 (6th Cir.
2010); 8 C.F.R. §1208.16(b)(1)(i)(A)-(B).
Solis-Nolasco v. Holder
Petitioner claims that the IJ and BIA erred in denying his application for withholding of
removal because Petitioner established that he will be subject to persecution if removed to
Guatemala by showing that he has been persecuted in the past because of one of five grounds
enumerated in the INA. See Petitioner’s Petition for Judicial Review of an Immigration Order of
Removal, Case No. 12-4286, Dec. 31, 2012, at 20-26. Solis-Nolasco argues that once he established
past persecution, the burden of proof was on the government to rebut the presumption that his life
and freedom were in danger. Petition for Judicial Review, at 15-20.
This court, however, agrees with the IJ that Petitioner’s testimony was not “sufficiently
detailed to carry the day,” and that there was “virtually no specific corroborating evidence.” AR 6970. Further, Solis-Nolasco did not establish the required nexus between his alleged past persecution
and one of five grounds enumerated in the INA. AR 71. As the IJ held, this dispute was “not
necessarily a dispute on account of race or on account of membership in a particular social group.”
AR 71. Petitioner’s testimony and corroborating evidence describe alleged persecution based on a
land or territory dispute. AR 71-72. Mistreatment based on a land dispute does not fall under a
protected ground of the INA. See 8 U.S.C. §1231(b)(3)(A).
Since Solis-Nolasco did not establish past persecution, there is no presumption that his life
or freedom will be threatened in the future, and the burden did not shift to the Government to rebut
such presumption. This determination is supported by substantial evidence. Based on this analysis,
we deny the petition for review of the application for withholding of removal.
Solis-Nolasco v. Holder
IV. Privilege of Voluntary Departure
Solis-Nolasco also asserts that the BIA erred in declining to reinstate the voluntary-departure
period granted by the IJ and instead ordering Petitioner removed to Guatemala. Petition for Judicial
Review, at 26-30. In support of its decision to order Petitioner’s removal, the BIA stated that the
record did not reflect that Petitioner provided proof of having paid his voluntary-departure bond.
AR 4. The administrative record presented to this court, however, reflects that Petitioner attached
the receipt from the DHS for his bond payment to his appeal to the BIA. See AR 48-54. The BIA
did not make any mention of this receipt or explain why attachment of the receipt was not sufficient
proof that Petitioner timely paid his voluntary-departure bond. See AR 4. Therefore, we remand the
case for further explanation or reconsideration of the BIA’s decision not to reinstate the voluntarydeparture period and instead order Petitioner removed pursuant to the IJ’s alternate order.
For the foregoing reasons, the petition for review of withholding of removal is denied. The
petition for review of the privilege of voluntary departure is remanded to the BIA for further
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