Valensuela-Ortega v. Immigration & Naturalization Service

58 F. App'x 145
CourtCourt of Appeals for the Sixth Circuit
DecidedFebruary 12, 2003
DocketNo. 01-3461
StatusPublished

This text of 58 F. App'x 145 (Valensuela-Ortega v. Immigration & Naturalization Service) 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
Valensuela-Ortega v. Immigration & Naturalization Service, 58 F. App'x 145 (6th Cir. 2003).

Opinion

SILER, Circuit Judge.

Juan Valensuela-Ortega (“Valensuela”), a citizen of Guatemala, petitions for review of a Board of Immigration Appeals (BIA) order affirming the decision of the Immigration Judge (IJ) denying his petition for asylum and ordering his deportation. We affirm.1

I.

Valensuela illegally entered the United States in February 1993. In 1987, he became a Guatemalan police officer. Later, he investigated homicides. He assisted in the investigation of the murder of Myrna Mack, who was researching the government’s policies toward displaced peasants. From the beginning of the investigation, there was physical evidence to suggest that the Guatemalan military intelligence unit known as the “G-2” may have played some role Mack’s death. After a very brief involvement by Valensuela, his super[146]*146visor, Estuardo Mendez-Vasquez, relieved Valensuela from any further participation in the Mack investigation. Shortly thereafter, Emilio Escobar was placed in charge of the investigation. In late 1991 or early 1992, Mendez and Valensuela were transferred to the police academy. Valensuela served as Mendez’s bodyguard, but he considered the new assignment a demotion.

In June 1991, Escobar testified before a court in Guatemala concerning the involvement of the Guatemalan security forces. In August, before he could testify before the Inter-American Commission on Human Rights, Escobar was killed. Another investigator that assisted with the Mack investigation, Julio Cesar Perez Ixeajop, left the country after the murder of Escobar. In February 1993, Mack’s killer was convicted of murder. Valensuela did not testify or otherwise participate in the trial. Human rights activists were dissatisfied with the investigation. They alleged that the G-2 involvement was not investigated and that a cover-up had taken place.

Valensuela admits that between the Mack murder in 1990 and his departure from Guatemala in 1993, he was not threatened, arrested or harmed. In 1991 or 1992, the windshield of his car was broken, an event that he admits is common in Guatemala. Valensuela contends, however, that after the transfer to the police academy, Mendez advised him to leave Guatemala. At his own request, Valensuela left the police department in January 1993, sold the family residence, obtained passports for the family, and all left for the United States without incident.

Mrs. Valensuela testified that at the beginning of 1992, she received two phone calls at times when Mr. Valensuela was not at home, both of which came from the same unidentified man. He warned Ms. Valensuela to tell her husband to be careful, to take care of himself and to “guard his life ... [or else] it will be taken from him.” Mrs. Valensuela received two additional calls in November or December 1992, during which the same caller said “take care of yourself’ and then hung up. Mrs. Valensuela also related two occasions in which she was riding the bus home from her job when a man got on the bus and started staring at her. On both occasions, the man got off the bus when policemen boarded the bus. After the second incident, Mr. Valensuela began driving his wife to and from work.

The IJ held a hearing on Valensuela’s request for asylum and found Valensuela and his wife to be credible witnesses, although he suspected that they “exaggerated to some extent” their level of fear in Guatemala. The IJ found it significant that despite the alleged danger Valensuela faced due to his limited involvement in the Mack investigation, he did not have any problems until over a year later. Also, the IJ took notice that Valensuela did not leave the country until almost a year and a half after Escobar was killed and Ixeajop departed from Guatemala. Accordingly, the IJ held that Valensuela did not experience anything that rose to the level of persecution. In the IJ’s view, Valensuela’s allegations, at best, amounted to two “very ambiguous circumstances”: a broken windshield and perhaps a demotion to the police academy. Likewise, the calls received by Mrs. Valensuela and incidents on the bus were not found to be linked to the Mack investigation.

In addition, the IJ concluded that Valensuela’s fears of future persecution in Guatemala were not objectively reasonable. The IJ found that even if Valensuela had been in some danger in the immediate aftermath of the Mack slaying in 1990 and 1991, with the passage of time and events, “he is probably in virtually no danger whatsoever today.” Even if there was a [147]*147danger, the IJ held that there was no nexus between the harm and any of the grounds protected by the Immigration and Nationality Act (INA). Valensuela admitted in his testimony that he was not political and never expressed any concerns or public comments concerning the Mack investigation. Also, “conscientious and dedicated members of the national police” do not constitute a particular social group under the INA. So, even presuming past difficulties, there was no evidence of any threat of future persecution.

Finally, the IJ held that even if everything alleged by Valensuela was taken to be true, the conditions in Guatemala “had changed sufficiently, as to immoderate current concerns in the future.” The IJ noted that following the change in presidency since Valensuela left, communications between the government and human rights activists had opened; in fact, the president was the former human rights ombudsman. In light of his findings, the IJ concluded that Valensuela had failed to meet his burdens to establish his eligibility for asylum and withholding of deportation.

Valensuela appealed to the BIA. The BIA conducted a de novo review and affirmed. In its decision, the BIA noted that Valensuela was never harmed or had any threatening encounters, offered no evidence that the government had imputed any political opinion to him, or any evidence linking the phone calls, bus incidents, or broken car window to his limited investigation of the Mack murder. Further, the BIA observed that in the eight intervening years there was no evidence that the government had any interest in Valensuela. Accordingly, it found that Valensuela failed to establish his eligibility for asylum, much less the “clear probability” standard for withholding of deportation and dismissed his appeal.

Standard op Review

In reviewing the factual determinations of the BIA regarding an alien’s eligibility for asylum and withholding of deportation, this court must apply the substantial evidence standard of review. Klawitter v. INS., 970 F.2d 149, 151 (6th Cir.1992). In order to reverse the BIA’s factual determinations, we must find that the evidence not only supports a contrary conclusion, but indeed compels it. INS v. Elias-Zacarias, 502 U.S. 478, 481 & n. 1,112 S.Ct. 812, 117 L.Ed.2d 38 (1992). The BIA’s determination that an alien is not eligible for asylum must be upheld unless the alien shows that the evidence he or she presented was “so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.” Id. at 484,112 S.Ct. 812.

Valensuela argues that where the BIA summarily affirms the IJ’s decision, this court should base its review only on the IJ’s analysis. Citing Lwin v. INS,

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