Romulo Guerra v. Eric Holder, Jr.

357 F. App'x 634
CourtCourt of Appeals for the Sixth Circuit
DecidedDecember 16, 2009
Docket09-3208
StatusUnpublished

This text of 357 F. App'x 634 (Romulo Guerra v. Eric Holder, Jr.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Romulo Guerra v. Eric Holder, Jr., 357 F. App'x 634 (6th Cir. 2009).

Opinion

REEVES, District Judge.

Petitioner Romulo Guerra seeks review of a decision by the Board of Immigration Appeals (BIA) denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture. Guerra argues that the Immigration Judge (IJ) and the BIA erred in denying his application for withholding of removal based on the finding that he had not suffered past persecution due to his membership in a particular social group as provided in the Immigration and Nationality Act (INA). Because substantial evidence supports the BIA’s conclusion that Guerra was subjected to extortion attempts and death threats not because of his kinship ties to his murdered cousin but because he was a successful businessman, we deny the petition for review.

I.

Guerra is a citizen and native of El Salvador. He is married and has one child; his wife and daughter remain in El Salvador. Prior to his arrival in the United States in 2000, Guerra owned a sporting goods store in Santa Ana, El Salvador. In 1995, Guerra began to receive demands for money from two men who came into his store. The men forcibly took 5000 Colones from Guerra’s store and told him that they needed $15,000. Guerra asserts that the men threatened that, if he did not come up with $15,000, the same thing would happen to him as had happened to his cousin Alfredo. Alfredo was a businessman in Santa Ana who had been murdered in 1993. Guerra believes that the men who threatened him were part of the same group who killed Alfredo. Guerra states that he did not report the threats because he believed the men might have connections to the police.

Guerra received threatening visits and notes for the next five years. Sometimes the men would damage Guerra’s store and take merchandise. And on at least one occasion, Guerra was threatened with a knife. The men continued to demand $15,000 from Guerra. On their final visit to his store in September 2000, they told Guerra that if he did not give them the money by the end of the day, they would kill him. That night, Guerra left El Salvador and came to the United States.

In addition to his wife and daughter, Guerra’s two sisters remain in El Salvador. Guerra’s mother moved to the United States to live with him because the men from whom Guerra had fled threatened to beat her when she would not tell them where Guerra was living. Before Guerra’s father died in 2003, he was approached by two men and questioned regarding Guerra’s whereabouts. Guerra has learned from family members who still live in El Salvador that the men continue to look for him because of their earlier demand for money.

Guerra was served with a Notice to Appear on June 23, 2006. In subsequent proceedings, he was found to be removable as an alien present in the United States *636 without being admitted or paroled. Guerra then applied for asylum and withholding of removal and a hearing was held before the IJ on March 18, 2008. Guerra testified at the March 18 hearing that he had never been in the military in El Salvador, nor had he been a member of any political party. When asked if he knew why the men had demanded money from him, he stated that it was because he had a business. The IJ noted that, although Guerra had not indicated that he believed he had been subjected to persecution because he belonged to a particular social group, this was the only ground upon which Guerra’s application for withholding of removal could be based.

The IJ concluded that Guerra had not presented any evidence that he had been persecuted on account of his membership in a particular social group. Based upon this conclusion, the IJ denied Guerra’s application for withholding of removal. Guerra’s applications for temporary protected status, asylum, and protection under the torture convention were denied for procedural reasons. The BIA affirmed the IJ’s decision with regard to Guerra’s application for withholding of removal because it likewise could identify no evidence suggesting that Guerra was targeted because of his relationship to his cousin. Instead, the BIA concluded that the motivation behind the extortion attempts was the criminals’ belief that Guerra had money. In this petition for review, Guerra challenges only the denial of his application for withholding of removal.

II.

This Court “review[s] the BIA’s decision as the final agency determination.” Khalili v. Holder, 557 F.3d 429, 435 (6th Cir.2009). However, the IJ’s decision will also be reviewed “[t]o the extent the BIA adopted the immigration judge’s reasoning.” Id. Both decisions are subject to the substantial-evidence standard. Id. Under the INA, “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Thus, we must uphold the BIA’s decision unless the evidence “ ‘not only supports a contrary conclusion, but indeed compels it.’ Ouda v. INS, 324 F.3d 445, 451 (6th Cir.2003) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). To prevail, Guerra “must show that the evidence presented was so compelling that no reasonable fact-finder could fail to find the requisite persecution.” Id.

The IJ found, and the BIA agreed, that Guerra failed to establish that he had suffered past persecution on account of a characteristic protected under the INA. An applicant is eligible for withholding of removal if he can show that his “life or freedom would be threatened in the proposed country of removal on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 C.F.R. § 1208.16(b). If this showing is made, withholding of removal is mandatory. Khalili, 557 F.3d at 435. When an applicant establishes that he has been subjected to past persecution in the proposed country of removal on the basis of one of the five protected grounds, a future threat to life or freedom is presumed. 8 C.F.R. § 1208.16(b)(1)(i).

Persecution is “the infliction of harm or suffering by the government, or persons the government is unwilling or unable to control, to overcome a characteristic of the victim.” Khalili, 557 F.3d at 436 (quotation omitted). This Court has held that “ ‘[pjersistent death threats and assaults on one’s life, family, and business rise to the level of persecution’ ” under the INA. Ouda, 324 F.3d at 454 (quoting Andria-sian v. INS, 180 F.3d 1033, 1042 (9th Cir.1999)). However, extortion attempts *637 do not constitute persecution where those making the demands did not choose their victim based on a protected characteristic. See Sinojmeri v. Gonzales, 199 Fed.Appx.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Al-Ghorbani v. Holder
585 F.3d 980 (Sixth Circuit, 2009)
Khalili v. Holder
557 F.3d 429 (Sixth Circuit, 2009)
Sinojmeri v. Gonzales
199 F. App'x 480 (Sixth Circuit, 2006)
Andriasian v. Immigration & Naturalization Service
180 F.3d 1033 (Ninth Circuit, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
357 F. App'x 634, Counsel Stack Legal Research, https://law.counselstack.com/opinion/romulo-guerra-v-eric-holder-jr-ca6-2009.