Saul Gutierrez-Olivares v. Michael B. Mukasey

533 F.3d 946, 2008 U.S. App. LEXIS 15265, 2008 WL 2777412
CourtCourt of Appeals for the Eighth Circuit
DecidedJuly 18, 2008
Docket07-2321
StatusPublished
Cited by6 cases

This text of 533 F.3d 946 (Saul Gutierrez-Olivares v. Michael B. Mukasey) 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
Saul Gutierrez-Olivares v. Michael B. Mukasey, 533 F.3d 946, 2008 U.S. App. LEXIS 15265, 2008 WL 2777412 (8th Cir. 2008).

Opinion

WOLLMAN, Circuit Judge.

Saul David Gutierrez-Olivares, a citizen and native of Peru, seeks review of an order of the Board of Immigration Appeals (BIA) that affirmed the decision of an immigration judge (IJ) denying his application for asylum and withholding of removal and ordering his removal to Peru. We dismiss the asylum claim for lack of jurisdiction and deny the petition for review of the withholding of removal claim.

I.

Gutierrez-Olivares entered the United States on a one-month tourist visa in March 2002. He remained and worked in the United States after the expiration of his visa, and the government initiated removal proceedings against him in July 2004. Gutierrez-Olivares admitted his re-movability, but applied for asylum in February 2005, claiming that he had suffered past persecution in Peru on account of his political opinion and membership in a par *948 ticular party and feared future persecution if he returned.

At his removal hearing in February 2006, Gutierrez-Olivares testified to the following. From 1991 until 2000, he had a one-hour weekday morning radio program wherein he gave news commentary and criticized corrupt practices of then-Peruvian-president Alberto Fujimori and of the local government in his province of Cam-pana, Peru. His program was unpopular with those whom he criticized, and he was assaulted once on the street by two men he later identified as working with the mayor. He suffered a few blows that resulted in bruises and did not require medical attention. The radio station was vandalized by the mayor and his supporters, but Gutierrez-Olivares was not present at the time and the owner obtained a court judgment for the damage. In 1994, Gutierrez-Olivares became the mayoral candidate for a small local political group. During his candidacy, he was threatened that if he did not withdraw from the election, he would be forcibly removed. Some of his campaign flyers and posters were vandalized, and unidentified people would throw stones at his windows and knock on his door at night. The police failed to bring any of the vandals to justice. Gutierrez-Olivares did not withdraw from the race, but was not elected. In 1998, he ran again. His campaign meeting-place was vandalized and some of his supporters, but not Gutierrez-Olivares, were injured in the fracas. His supporters recognized the vandals as supporters of the pro-Fujimori mayoral candidate, to whom Gutierrez-Oli-vares lost the election.

Gutierrez-Olivares joined the anti-Fu-jimori Peru Posible party in 1999. In 2000, he attended an anti-Fujimori coun-terdemonstration in Arequipa at which violence broke out, resulting in the arrest of some eighty to one-hundred people from his party. Those arrested were injured, jailed, prosecuted, and/or released. Gutierrez-Olivares was not arrested, but was afraid to return to Campana for two weeks, after which he left for the United States for the first time. He returned to Peru in December 2000, after Fujimori had fled the country.

The leader of the Peru Posible party, Alejandro Toledo, was elected president in 2001. Some of Fujimori’s supporters remained in Campana’s local government, however, and Gutierrez-Olivares received threats against himself and his family. He sent his two eldest children to study abroad and his wife and youngest child to live in Arequipa. Gutierrez-Olivares remained in Campana until his final entry into the United States in March 2002, vacationing once in the United States in the interim. He testified that he intended to return to Peru when the political climate was more hospitable. In 2003, his wife was appointed head of the municipal public welfare program in Campana, replacing the man who had threatened Gutierrez-Olivares during his 1994 campaign and thereafter. As the result of a property dispute, she was assaulted and sustained injuries requiring medical attention. She obtained a restraining order against her attackers, and her case against them is currently pending in Peru’s courts.

After considering this testimony and supporting evidence, including background information on Peru, the IJ denied Gutierrez-Olivares’s application for asylum on the basis that it was untimely filed and thus statutorily barred. The IJ denied the application for withholding of removal based on her finding that Gutierrez-Oli-vares had failed to meet his burden of proof that he had suffered past persecution or would suffer future persecution.

II.

We review the BIA’s order, which includes the IJ’s findings and reasoning to *949 the extent that it expressly adopts them, as the final order of removal. Fofanah v. Gonzales, 447 F.3d 1037, 1040 (8th Cir.2006); see 8 U.S.C. § 1252(a)(1). We will uphold the BIA’s findings of fact unless the evidence as a whole would compel any reasonable adjudicator to conclude to the contrary, and we will uphold the BIA’s decision unless it is manifestly contrary to law. 8 U.S.C. § 1252(b)(4)(B)-(C).

A. Asylum

We lack jurisdiction to review the BIA’s determinations with respect to the timeliness of his application for asylum, including whether the application was filed within the one-year time limit or whether changed or extraordinary circumstances permit the consideration of an otherwise ineligible application. 8 U.S.C. § 1158(a)(3) (courts lack jurisdiction to review determinations made pursuant to 8 U.S.C. § 1158(a)(2)). Thus, we dismiss Gutierrez-Olivares’s asylum claim for lack of jurisdiction because it does not raise a colorable constitutional claim or question of law. See 8 U.S.C. § 1252(a)(2)(D). 2

B. Withholding of Removal

To qualify for withholding of removal under 8 U.S.C. § 1231(b)(3)(A), Gutierrez-Olivares must have established that “his life or freedom would be threatened” in Peru because of his “race, religion, nationality, membership in a particular social group, or political opinion.” 8 C.F.R. § 208.16(b).

Gutierrez-Olivares argues that he suffered and will suffer persecution based on his political opinion and his membership in a particular party. The record does not compel such conclusions. We agree with the BIA that the incidents described in Gutierrez-Olivares’s testimony, even when aggregated, do not constitute persecution within the meaning of 8 C.F.R. § 208.16(b), and thus do not establish that his life or freedom was threatened within the meaning of 8 U.S.C.

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533 F.3d 946, 2008 U.S. App. LEXIS 15265, 2008 WL 2777412, Counsel Stack Legal Research, https://law.counselstack.com/opinion/saul-gutierrez-olivares-v-michael-b-mukasey-ca8-2008.