Sanic v. Holder

343 F. App'x 62
Court of Appeals for the Sixth Circuit·Decided August 20, 2009·No. No. 08-4006·Published·Cited by 3 cases

Opinion

KEITH, Circuit Judge.

Petitioner Jose Sanie (“Sanie”) seeks this Court’s review of an order from the Board of Immigration Appeals (“BIA”), denying his application for asylum, withholding of removal, protection under the Convention Against Torture, and cancellation of removal. For the following reasons, we DISMISS the petition for review, in part, and DENY it, in part, and AFFIRM the BIA’s decision.

I.

A. Procedural Summary

On December 20, 1992, Petitioner Jose Sanie (“Sanie”) applied for asylum, pursuant to 8 U.S.C. § 1158(b)(1), and withholding of removal, pursuant to 8 U.S.C. § 1231(b)(3). He also applied for Suspension of Deportation or Special Rule Cancellation of Removal under section 203 of the Nicaraguan and Cental American Relief Act (“NACARA”) of 1997 (“Special Rule Cancellation”).1 Sanie was denied Special Rule Cancellation, and the matter was referred to an immigration judge (“IJ”) in accordance with 8 C.F.R. § 240.70.

On August 7, 2006, the Department of Homeland Security served Sanie with a Notice to Appear (“Notice”), charging him [64] with removability under 8 U.S.C. § 1182(a)(6)(A)®. On October 8, 2006, Sanie appeared before the IJ and admitted the factual allegations in the Notice and conceded his removability. That same date, Sanie indicated that he wished to renew his request for asylum and that he would seek cancellation of removal under 8 U.S.C. § 1229b(b)(l). On February 28, 2007, Sanie filed his application for cancellation of removal with the immigration court.

Same’s merits hearing was held on September 25, 2007 in Memphis, Tennessee. He was the only testifying witness, and spoke before the IJ with the help of a Spanish interpreter. He also submitted a list of exhibits, including a declaration from Frank O. Mora, Ph.D., an academic with expertise in Latin American politics and society.

An oral decision was rendered the day of the hearing. The IJ denied Same’s applications for asylum, withholding of removal, cancellation of removal, and voluntary departure on the merits while finding that Sanie was not eligible to apply for CAT relief because of the age of his asylum application. Sanie appealed the IJ’s decision and the BIA dismissed the appeal in an order and opinion dated July 22, 2008. The instant petition for review timely followed on August 14, 2008.

B. Removal Proceeding

Sanie is a native and citizen of Guatemala and of Quiche descent.2 He resided with his family in Almolonga, Quetzal-tenango, Guatemala. Sanie came to the United States in June 1990 as a thirteen-year-old during the civil war between the Guatemalan government and a national guerrilla movement.

According to Same’s testimony, found credible by the IJ, several guerrilla members broke into Same’s family’s home in Guatemala one night during late May of 1990. The guerrillas informed Same’s father that they wanted to take Sanie and his two brothers to join their rebel forces. Same’s father refused to let his children go, telling the guerrillas that he did not believe in their cause and that he sided with the government in the civil war. In response, the guerrillas beat Same’s father with their hands and various unidentified weapons that they carried. Sanie stated he was also “beaten some” during the encounter but that his mother “received most of the beats up (sic)” while she protected him. Sanie further stated the beating his mother received was “not much.” Id. The guerrillas were in the home for a total of eight to ten minutes before fleeing.

Shortly after this incident, Same’s father decided to send Sanie and his brothers to the United States out of concern for their safety. Sanie entered the United States illegally on June 20, 1990. His father, as well as his sister, continued to live in Guatemala as of the date of Same’s immigration hearing.

The 2005 United States Department of State Country Report on Human Rights Practices in Guatemala (“State Department Report”), included as part of the administrative record, indicated the civil war between the government and the guerrillas ended in 1996 when a formal peace accord was signed. Sanie, however, alleged the fighting continues based on reports from his father. Accordingly, San-ie feared returning to Guatemala out of concern that the guerrillas would seek to harm or kill him in retribution for his prior refusal to join their cause.

[65] Sanie claimed that former guerrillas visited his father in 1998, and warned him that Sanie and his brothers would be killed if they returned to Guatemala. Sanie testified that guerrillas still operate across all of Guatemala and thus he could not safely relocate to another part of the country if he were removed from the United States. Sanie did not claim that his family members living in Guatemala have been harmed by guerrillas since the May 1990 incident. Same’s father told him, however, that one individual who returned to Guatemala in 2006 was kidnaped and never reappeared. The circumstances surrounding the alleged kidnaping are not contained in the record.

The declaration from Dr. Mora alleged that “irregular forces, such as former Guatemalan guerrillas engaged in political and criminal activities exercise near absolute control in the more remote areas of the country.” He further suggested that Same’s social status and former residency in the remote area of Quetzaltenango would likely lead to “continued harassment, intimidation, and violence that he experienced before leaving the country.” According to Dr. Mora, “[i]n small rural communities where ... the effectiveness of law enforcement agencies is dismal, the repression or murder of past victims of human right violations” may occur.

The State Department Report acknowledged the existence of widespread “societal violence” in Guatemala and specifically attributed hundreds of killings and other crimes to “non-state actors with links to organized crime, gangs, private security companies, and alleged ‘clandestine groups.’ ” The State Department Report, however, did not indicate that these acts of violence were committed for political reasons. Furthermore, the document noted the absence of reports of politically motivated disappearances in Guatemala as well as politically motivated killings by the government and its agents.

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Sanic v. Holder, 343 F. App'x 62 (6th Cir. 2009).

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