Filed: Mar. 16, 2004
Latest Update: Feb. 22, 2020
Summary: Seth Adam Perlmutter on brief for petitioners.Ernesto H. Molina, Jr., Senior Litigation Counsel, and Jennifer, Paisner, Office of Immigration Litigation, U.S. Department of, Justice, Civil Division, on brief for respondent.during which both Najera and Jimenez testified.home in Santa Domingo.
Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 02-2328
NERY OLIVEIRIO NAJERA MÉNDEZ and
ELDA SUSANA JIMÉNEZ MÉNDEZ NAJERA,
Petitioners,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Torruella and Selya, Circuit Judges.
Seth Adam Perlmutter on brief for petitioners.
Peter D. Keisler, Assistant Attorney General, Civil Division,
Ernesto H. Molina, Jr., Senior Litigation Counsel, and Jennifer
Paisner, Office of Immigration Litigation, U.S. Department of
Justice, Civil Division, on brief for respondent.
March 16, 2004
Per Curiam. Nery Oliveirio Najera Mendez ("Najera") and
Elda Susana Jimenez Mendez Najera ("Jimenez") are citizens of
Guatemala, who entered the United States at the Mexican border
without being admitted or paroled on April 3, 1993, and August 27,
1992, respectively. The two were married in the United States on
April 14, 1998, and have one child born in the United States. On
October 15, 1998, the INS issued each of them a Notice to Appear
which charged Najera and Jimenez with removability under 8 U.S.C.
§ 1182(a)(6)(A)(i) (2000) as aliens present in the United States
without being admitted or paroled.
Najera and Jimenez conceded removability as charged, and
requested asylum and withholding of removal. An Immigration Judge
held a hearing on the asylum applications on November 16, 1999,
during which both Najera and Jimenez testified. At the conclusion
of the hearing, the Immigration Judge denied the petitioners'
applications for asylum because they had not been timely filed and
there were no excusing exceptional circumstances. 8 U.S.C. §
1158(a)(2) (2000). No appeal was taken from this aspect of the
ruling.
The Immigration Judge also denied petitioners'
applications for withholding of removal, finding that they had
failed to demonstrate past persecution or a probability of future
persecution on account of a protected ground. Petitioners appealed
this part of the Immigration Judge's decision to the Board of
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Immigration Appeals, which affirmed without opinion the decision of
the Immigration Judge. 8 C.F.R. 1003.1(a)(7) (2003). Petitioners
now seek review in this court, and under the new procedures this
means that we review directly the decision of the Immigration
Judge. Herbert v. Ashcroft, 325 F.3d 68, 71 (1st Cir. 2003);
Albathani v. INS,
318 F.3d 365, 373 (1st Cir. 2003).
"The burden of proof is on the applicant for withholding
of removal . . . to establish that his or her 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. § 208.16(b) (2003). An
alien can establish withholding of removal in one of two ways.
First, the alien may demonstrate past persecution on one of the
protected grounds, which creates a rebuttable presumption that the
alien's life or freedom would be threatened in the future. Id. §
208.16(b)(1) (2003). Second, the alien may show that his or her
life or freedom would be threatened in the future by demonstrating
that it is more likely than not that he or she would be persecuted
on account of a protected ground.
Id. § 208.16(b)(2) (2003).
The Immigration Judge found that petitioners had not
produced evidence sufficient to establish withholding of removal
under either method. That determination "must be upheld if
supported by reasonable, substantial, and probative evidence on the
record considered as a whole." El Moraghy v. Ashcroft, 331 F.3d
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195, 202 (1st Cir. 2003) (quoting INS v. Elias-Zacarias, 502 U.S.
478, 481 (1992) (internal quotation omitted)). We deny the
petitions for review because the evidence fails to establish past
persecution or a threat of future persecution on account of one of
the five enumerated grounds.
The evidence produced in support of petitioners' claim is
briefly as follows: Najera was born in the village of Santo Domingo
in Guatemala, and moved with his family to the village of Peten.
Jimenez also lived in the village of Peten, although she did not
know Najera before coming to America. In January 1984, when
petitioners were ten or eleven years old, the village was attacked
by guerrillas. Najera's parents disappeared in the attack.
Jimenez's parents were wounded in the attack, but survived and
continue to reside in Guatemala; her aunt, uncle, and cousin
disappeared in the attack.
Najera testified that his parents were not involved
politically, had no contact with the guerillas, and that although
they were Catholic his family was not persecuted on account of
their religion. Jimenez also testified that her family was not
part of any political or religious group that would have made them
subject to this kind of attack. Jimenez speculated that the 1984
attack by the guerrillas on Peten was caused by the false
accusation either that the villagers or her family specifically--
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her testimony is ambiguous on this point--were acting as informants
to the military against the guerillas.
Nothing in the evidence suggests past persecution on one
of the five protected grounds. The only other evidence as to past
persecution involved a 1986 guerilla attack on Najera's neighbor's
home in Santa Domingo. Najera fled to Santa Domingo after leaving
Peten but before leaving Guatemala altogether. The attack, which
focused on Najera's neighbor and not him, does not suggest past
persecution on account of one of the protected grounds.
Petitioners fare no better in seeking to prove future
persecution on account of one of the five protected grounds.
Najera testified that he has not had any contact with friends or
relatives in Guatemala since he left the country in 1986, and had
no knowledge of the current conditions there. Najera is not a
member of any organizations or groups in Guatemala, nor has he ever
been arrested, detained or interrogated in any country. He stated
that notwithstanding peace accords agreed on in 1996 in Guatemala,
he was still afraid to return because of what he experienced in
1984. When pressed as to whether he thought anyone in Guatemala
was looking for him specifically, he merely stated "there's always
people to harm you and I'm very frightened to be killed."
Jimenez, who left Guatemala in 1987 at the request of her
parents, still keeps in touch with her parents and siblings who
reside in Guatemala. She stated that although no member of her
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family has recently been attacked in Guatemala, she is afraid to
return there because "it is known that these people are always
killing there." Jimenez is not a member of any organizations or
groups in Guatemala, nor has she ever been arrested, detained or
interrogated in any country.
While petitioners have produced evidence that guerilla
attacks continue in Guatemala, and may even be able to demonstrate
that they too could fall victim to guerilla attacks, they have
produced no evidence to suggest that any persecution they may
suffer will be on account of one of the five enumerated protected
grounds. Petitioners concede as much in their brief:
Eventhough [sic] the retribution which the
Petitioners believes [sic] they will suffer if
they are returned to Guatemala, does not
appear to be on account of race, religion,
nationality, membership in a particular social
group or political opinion, the fact the
Guatemalan government has been so ineffective
in preventing, policing and prosecuting cases
of retribution and other violent crime,
demonstrates an acquiescence and acceptance by
the government of these activities which place
people in the Petitioners' position in great
danger.
"[I]t is the law that general fears (even 'well-founded'
ones) of future harm from political upheaval or terrorist violence
are not sufficient to establish eligibility for asylum," Meguenine
v. INS, 139 F.3d 25, 29 (1st Cir. 1998), much less withholding of
removal,
Albathani, 318 F.3d at 372-73 (withholding standard
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stricter than asylum standard), as the Immigration Judge
recognized.
The petition for review is denied.
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