Garza-Lopez v. Ashcroft

139 F. App'x 287
CourtCourt of Appeals for the First Circuit
DecidedJuly 20, 2005
Docket04-1999
StatusPublished
Cited by1 cases

This text of 139 F. App'x 287 (Garza-Lopez v. Ashcroft) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Garza-Lopez v. Ashcroft, 139 F. App'x 287 (1st Cir. 2005).

Opinion

PER CURIAM.

Petitioner appeals an order by the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) decision to deny his application for asylum because he failed to establish an objective basis for a well-founded fear of future persecution. Since there is substantial evidence in the record to support the BIA’s order, we affirm.

I. Background

Petitioner is a 31-year-old national of Guatemala. He entered the United States without inspection at or near San Ysidro, California, on September 15,1991, when he was eighteen years old. On February 22, 2001, the Immigration and Naturalization Service 1 served petitioner with a Notice to Appear, alleging that he is an alien present in the United States who has not been admitted or paroled after inspection by an Immigration Officer. Petitioner admitted these allegations and conceded removability, but sought relief of asylum, withholding of removal, and protection under the Convention Against Torture. On February 14, 2001, the IJ denied petitioner’s applications for relief and granted him the privilege of voluntary departure. The BIA affirmed the IJ’s decision without opinion. This petition for review follows. 2

Between the ages of fourteen and eighteen, during a time of civil war in Guatemala, petitioner served in the military *289 reserves. The reserves were operated by the Guatemalan government, but separate from the Civil Patrol and the Guatemalan Army. One night a week, petitioner patrolled the highways, looking for suspicious activity and “register[ing]” passers-by to see if they were “carrying something.” Sometimes his duties required him to detain people. Throughout his service with the reserves, petitioner encountered members of guerrilla forces, some of whom were aggressive. At one point, petitioner suffered “light harm” when a guerrilla cut him on the hand. He also testified before the IJ that in 1989, a member of his reserve group shot a man in the leg, incapacitating him. Although petitioner “felt bad” about this event, no subsequent interactions resulted from the incident. He was never captured by guerrillas, but he was approached to join them on multiple occasions in 1988. To the best of petitioner’s knowledge, the guerrillas sought him out because they saw him as a healthy young man who could replenish their ranks. Petitioner testified that he was never politically involved in Guatemala, and has not had any problems with, or fear of, the Guatemalan government.

Although peace accords between the guerrillas and the Guatemalan government were signed in 1996, petitioner contends that the “delinquency continues.” Carrying out these delinquent acts, petitioner alleges, are ex-guerrillas, whom petitioner agrees may now be characterized as common criminals. He fears them for several reasons. First, he fears retaliation by those whom he detained during his service. Second, he fears retaliation for not having joined the guerrilla forces after repeatedly being asked to do so. Third, he fears that the ex-guerrillas, who may perceive him as “well-to-do” since he has lived in the United States for so long, will make him the target of their crimes in an attempt to obtain some of the money he has earned while working here. Petitioner fears that, even after thirteen years, he will be recognized by ex-guerrillas who wish him harm, and that he will not be safe from this harm anywhere in Guatemala since it is a small country. Although he testified before the IJ that he has “heard things” from his family to substantiate this fear, he was unable to provide specific evidence to support this contention and conceded that no one in Guatemala is looking for him in particular. While petitioner claims the primary reason he wishes to remain in the United States is to avoid the danger he believes awaits him in Guatemala, he also testified that he wants to remain in this country in order to earn enough money to support his family.

Petitioner’s wife and children still reside in Guatemala. He also has a father and siblings living there. According to petitioner, two of his brothers previously had some unspecified problems because of their participation in the reserves, but solved those problems later. Petitioner also testified that two of his cousins were assassinated by the guerrillas, one in 1987 and the other in 1992. Otherwise, the rest of his relatives have remained in Guatemala without incident.

II. Analysis

In order to be eligible for asylum, “the burden of proof is on the applicant ... to establish that he or she is a refugee as defined in section 101(a)(42) of the [Immigration and Nationality] Act.” 3 8 C.F.R. *290 § 208.13(a). “The applicant may qualify as a refugee either because he or she has suffered past persecution or because he or she has a well-founded fear of future persecution.” 8 C.F.R. § 208.13(b). The BIA’s determination that petitioner was not eligible for asylum “must be upheld if ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole.’ ” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (quoting 8 U.S.C. § 1105a(a)(4)); see also Yatskin v. INS, 255 F.3d 5, 9 (1st Cir.2001) (“we review a denial of a petition for asylum by the BIA under a substantial evidence standard”). We review findings of fact deferentially, and thus may reverse such a finding only if “any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Because the BIA affirmed the IJ’s decision without opinion, we review the decision issued by the IJ. See Albathani v. INS, 318 F.3d 365, 373 (1st Cir.2003).

A. Past Persecution

“To qualify as persecution, a person’s experience must rise above unpleasantness, harassment, and even basic suffering.” Nelson v. INS, 232 F.3d 258, 263 (1st Cir.2000). Petitioner must also establish “through direct or circumstantial evidence, that his alleged persecutors were motivated by one of the statutorily enumerated grounds.” 4 Guzman v. INS, 327 F.3d 11, 15 (1st Cir.2003) (citing Elias-Zacarias, 502 U.S. at 483).

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Related

Albathani v. INS
318 F.3d 365 (First Circuit, 2003)

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Bluebook (online)
139 F. App'x 287, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garza-lopez-v-ashcroft-ca1-2005.