Elvin Castillo-Gutierrez v. Loretta E. Lynch

809 F.3d 449, 2016 U.S. App. LEXIS 24, 2016 WL 51230
CourtCourt of Appeals for the Eighth Circuit
DecidedJanuary 5, 2016
Docket14-2481
StatusPublished
Cited by7 cases

This text of 809 F.3d 449 (Elvin Castillo-Gutierrez v. Loretta E. Lynch) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Elvin Castillo-Gutierrez v. Loretta E. Lynch, 809 F.3d 449, 2016 U.S. App. LEXIS 24, 2016 WL 51230 (8th Cir. 2016).

Opinion

SMITH, Circuit Judge.

Elvin Castillo-Gutierrez petitions for review of the Board of Immigration Appeals’ (BIA) decision rejecting his claims that he should not be returned to Nicaragua. *451 Castillo’s brother was brutally murdered by local police in Nicaragua. Castillo, a native Nicaraguan, fears return to Nicaragua would place him in grave danger from persecution by those responsible for his brother’s death. An immigration judge (IJ) ordered his removal, concluding that he failed to satisfy the requirements for asylum, withholding of removal, and withholding under the convention against torture (CAT). The BIA agreed, concluding that Castillo’s fear of future persecution was not objectively reasonable. We deny his petition for review.

I. Background

Castillo left Nicaragua and entered this country illegally in 2006. After the Department of Homeland Security initiated proceedings to remove Castillo, he learned that local police officers killed his brother, Noel, in his hometown. Castillo does not challenge his removability but seeks relief that would enable him to remain in the United States. According to Castillo, if he is returned to Nicaragua, he will seek justice for his brother. But he fears that this course of action will subject him to police retaliation.

Castillo’s brother, Noel, was beaten to death by local police officers in Nicaragua. Noel, while intoxicated, attempted to enter a hospital to visit a niece and was rebuffed by hospital security. Noel tried to force his way into the hospital, and local police responded. The police officers beat Noel to death and dumped his body nearby. Miguel, a family friend, witnessed Noel’s murder. After Noel died, one of the officers threatened Miguel that “something might happen to him” if he told anyone what he saw. Despite the threat, Miguel informed another of Castillo’s brothers, Orlando.

Several months later, Orlando filed a complaint regarding Noel’s death with the police department and wrote to a human rights organization in Nicaragua. Neither organization has pursued the matter, and the police officers responsible have not been prosecuted. To date, Castillo’s family has not suffered any retaliation from the police. Orlando believes that the police are looking for him, but he has been able to avoid them by living in a rural area a few miles outside of the city.

After considering hearing testimony and documentary evidence, the IJ denied Castillo’s request for asylum, withholding of removal, and relief under the CAT.

The BIA affirmed the IJ’s denial of asylum, finding that Castillo failed to establish that his fear. of future persecution was objectively reasonable. The BIA noted that Castillo did “not identify any objective evidence that private individuals who investigate the death of relatives are perse.-cuted in Nicaragua.” The BIA also found that “[t]he presence of unharmed family members [and friends] in Nicaragua significantly undermines [Castillo’s] claimed fear.” In particular, the BIA noted that “[o]ne of [Castillo’s] remaining' brothers has filed a report and contacted a human rights group” and that “his brother’s actions [have not] resulted in any actual harm to him.” Similarly, Miguel, “has not experienced any harassment aside from [the] unfulfilled threat.” Accordingly, the BIA concluded that “the Immigration Judge properly denied [Castillo’s] request for asylum.”

The BIA also affirmed the IJ’s denial of withholding of removal and withholding under the CAT. Citing Malonga v. Mukasey, 546 F.3d 546, 551 (8th Cir.2008), the BIA held that because Castillo “has not met the lower standard of showing a well-founded fear of future persecution for purposes of asylum, he has necessarily not established a clear probability of future persecution” for purposes of his request *452 for withholding of removal. Applying Alemu v. Gonzales, 403 F.3d 572, 576 (8th Cir.2005), the BIA additionally held that because Castillo “has not presented an unrelated claim to protection under the Convention Against Torture, the Immigration Judge properly denied that request as well.”

The IJ decided this case'in Kansas City, Missouri. Accordingly, we have jurisdiction to review the final order of the BIA pursuant to 8 U.S.C. § 1252(a).

II. Discussion

A. Standard of Review

“We must affirm the agency’s decision that [Castillo] is not eligible for asylum if it is supported by substantial evidence on the administrative record considered as a whole.” See Melecio-Saquil v. Ashcroft, 337 F.3d 983, 986-87 (8th Cir.2003) (citation omitted). Castillo thus “bears the heavy burden of showing that his evidence ‘was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.’ ” See Id. (quoting INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)).

B. Asylum

To obtain asylum, Castillo must demonstrate either past persecution or a well-founded fear of future persecution on account of his race, religion, nationality, political opinion, or membership in a particular social group. 8 U.S.C. §§ 1101(a)(42), 1229a(c)(4); Elias-Zacarias, 502 U.S. at 481, 112 S.Ct. 812. A fear of future persecution is “well founded” if it “is both subjectively genuine and objectively reasonable.” Feleke v. INS, 118 F.3d 594, 598 (8th Cir.1997) (citation omitted). “For an alien’s fear of persecution to be objectively reasonable, the fear must have basis in reality and must be neither irrational nor so speculative or general as to lack credibility.” Perinpanathan v. INS, 310 F.3d 594, 598 (8th Cir.2002) (citation omitted). Moreover, “[a]n 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 of nationality ... if under all the circumstances it would be reasonable to expect the applicant to do so.” 8 C.F.R. § 1208.13(b)(2)(ii).

The BIA determined that Castillo’s fear was not objectively reasonable. Castillo argues that

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809 F.3d 449, 2016 U.S. App. LEXIS 24, 2016 WL 51230, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elvin-castillo-gutierrez-v-loretta-e-lynch-ca8-2016.