Gonzalez-Hernandez v. Ashcroft

• Decision Date: 18 July 2003
• Docket Number: No. 02-7218.,02-7218.
• Citation: 336 F.3d 995
• Parties: Bernardo Antonio GONZALEZ-HERNANDEZ; Hilda Vivian Gonzalez; Heidi Argentina Gonzalez-Morales; Vilma Lissette Gonzalez-Morales; Mayra Alejandra Gonzaleza-Morales, Petitioners, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

336 F.3d 995

Bernardo Antonio GONZALEZ-HERNANDEZ; Hilda Vivian Gonzalez; Heidi Argentina Gonzalez-Morales; Vilma Lissette Gonzalez-Morales; Mayra Alejandra Gonzaleza-Morales, Petitioners, v. John ASHCROFT, Attorney General, Respondent.

No. 02-7218.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 3, 2003.

Filed July 18, 2003.

Susan E. Hill, Los Angeles, CA, for the petitioners.

Norah Ascoli Schwarz, Jamie Dowd, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. INS Nos. A75-507-115, A75-507-116, A75-507-117, A75-507-118, A75-507-119.

Before: THOMPSON, TROTT, and TALLMAN, Circuit Judges.

OPINION

TALLMAN, Circuit Judge:

In this petition for review, we are once again asked to decide whether the Immigration and Naturalization Service (INS) rebutted the presumption of future persecution through the use of a State Department country report, thereby defeating the petitioners' claims of asylum. Because the country report in this case indicates that only high-level political figures are now subject to persecution on account of political opinion in Guatemala, and that in any event such leaders can safely relocate within Guatemala, we hold that substantial evidence supports the Board of Immigration Appeals' (BIA) decision to deny asylum to petitioners,¹ who were never party leaders nor high-level politicians. We therefore deny the petition.

I

Bernardo Gonzalez-Hernandez (Gonzalez) and his family claim they are entitled to asylum because they have a well-founded fear that they will be persecuted on account of their political opinions if deported to their native country of Guatemala. The facts giving rise to their claim of asylum start in early 1987. For approximately three months of that year, Bernardo Gonzalez actively participated in the Christian Democratic Party.

At some point, the Christian Democratic Party elected or appointed Gonzalez to the "Board of Judges," a position requiring him to monitor an election for voter fraud. This was Gonzalez's only official position in the Christian Democratic Party, and it lasted for just the day of the election. Gonzalez does not recall the exact day, but remembers that it was in either February or March of 1987.

On election day, Gonzalez watched members of the rival Revolutionary Party (PR) stuff ballots. Gonzalez confronted the PR members, as he was required to do. The PR members responded by striking Gonzalez in the head with the butt of a gun. The police were present while this happened and failed to intervene.

Gonzalez received the first of two threatening letters one week after this incident. The letter stated that Gonzalez and his family were "going to have very many problems" and that Gonzalez "would have to pay ... very dearly." The second note, delivered to Gonzalez a few days later, reiterated that Gonzalez and his family were in serious danger.

Though no more threatening letters arrived at his house, Gonzalez repeatedly heard rumors that the PR wanted to harm both him and his family. In November 1987 the Gonzalez family moved to Guatemala City for safety. The family resided in Guatemala City for approximately seven months without receiving any more threats or letters. However, friends and family back home informed Gonzalez that PR members were inquiring about his whereabouts.

In July 1988 Gonzalez entered the United States without inspection. Five months later, Gonzalez returned to Guatemala and assisted his family in entering the United States without inspection. The Gonzalez family has lived here since December 1988.²

In April 1998 the INS initiated removal proceedings, charging that Gonzalez and his family illegally resided in the United States because none of the family members were lawfully admitted or paroled. A hearing was held before an Immigration Judge, and the Gonzalez family members conceded that they were subject to removal but argued that they were eligible for asylum and withholding of removal. The Immigration Judge determined that the family members did not qualify for asylum or withholding of removal. The BIA subsequently dismissed their appeal.

The family members now petition for review.

II

The Attorney General, at his discretion, is authorized to grant asylum to "refugees." 8 U.S.C. § 1158(b)(1). A refugee is a person unable to return to his or her country of nationality because that person will be persecuted upon return, or because that person has a well-founded fear of persecution, "on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42).

If the applicant for asylum has suffered past persecution, he or she "is presumed to have a well-founded fear of future persecution." Rios v. Ashcroft, 287 F.3d 895, 900 (9th Cir.2002). "The INS can rebut this presumption by showing, by a preponderance of the evidence, that the conditions in the applicant's home country have changed such that[he or] she no longer has a well-founded fear of persecution." Id.; 8 C.F.R. § 208.13(b)(1)(i). Evidence presented by the INS to rebut the presumption must be tailored to the applicant: "Information about general changes in the country is not sufficient." Rios, 287 F.3d at 901 (quoting Garrovillas v. INS, 156 F.3d 1010, 1017 (9th Cir.1998)); see also id. ("The INS is obligated to introduce evidence that, on an individualized basis rebuts a particular applicant's specific grounds for his well-founded fear of future persecution.") (internal quotation marks and citation omitted).

A

The Immigration Judge ruled that Bernardo Gonzalez³ "failed to submit sufficient specific facts as well as concrete and/or credible evidence from which the Court might infer that [he had] been persecuted in Guatemala" and therefore denied asylum. The Immigration Judge also held that Gonzalez would not be entitled to relief even if he had suffered past persecution because country conditions in Guatemala have changed such that Gonzalez no longer has a well-founded fear of persecution in that country.

The BIA disagreed with the Immigration Judge's conclusion regarding past persecution. It held that Gonzalez "demonstrated that he suffered past persecution on account of his political opinion." Nevertheless, the BIA dismissed the appeal on the ground that a 1997 State Department country report, introduced into evidence by the INS, demonstrates that Gonzalez no longer has a well-founded fear of persecution in Guatemala. According to the BIA, this country report rebuts the presumption that Gonzalez will be persecuted upon his return to Guatemala in three ways. First, the report indicates that peace accords were signed in Guatemala, "ending the civil war in that country." Second, the report states that "only party leaders or high-profile activists generally would be vulnerable to such harassment and usually only in their home communities, making internal relocation a viable alternative in many cases." Finally, the report never mentions the PR, suggesting "that the political party [Gonzalez] opposed and feared may no longer even exist." In addition to the country report, the BIA also relied upon the lapse of time between the events giving rise to the past persecution and the hearing (ten years) to hold that Gonzalez no longer has a well-founded fear of persecution in Guatemala.

B

Our review of the BIA's determination that Gonzalez does not qualify for asylum is quite narrow. The BIA's decision need only be supported by substantial evidence. Kumar v. INS, 204 F.3d 931, 933 (9th Cir.2000). In other words, to overturn the BIA's determination that he is ineligible for asylum, Gonzalez "must show that the evidence he presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution." INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); see also 8 U.S.C. § 1252(b)(4)(B). "Within broad limits the law entrusts the agency to make the basic asylum eligibility decision...." INS v. Ventura, 537 U.S. 12, 16, 123 S.Ct. 353, 355, 154 L.Ed.2d 272 (2002) (per curiam).

The BIA did not exceed those limits in holding that the INS rebutted the presumption that Gonzalez has a well-founded fear of future persecution. The 1997 country report introduced into evidence by the INS, "Guatemala — Profile of Asylum Claims & Country Conditions," states that "only party leaders or high-profile activists generally would be vulnerable to" persecution based on political opinion. Gonzalez was neither a party leader nor a high-profile activist. By his own admission, Gonzalez's involvement in the Christian Democratic Party was minimal: he participated in the Party for three months and monitored one election.

Even if we assume that Gonzalez was in fact a "party leader" or "high profile activist," the 1997 country report explains that such persons are usually susceptible to persecution "only in their home communities, making internal relocation a viable alternative in many cases." Because "an individual who can relocate safely within his home country ordinarily cannot qualify for asylum here," Ventura, 123 S.Ct. at 356 (citing 8 C.F.R. § 208.13(b)(1)(i)), the fact that Gonzalez relocated to Guatemala City for several months without receiving any threats or letters is highly relevant. The BIA could have reasonably concluded that Gonzalez would be safe in Guatemala City, although Gonzalez might face persecution if he returned to his hometown. Substantial evidence therefore supports the BIA's asylum determination.

C

To be sure, the country report is somewhat ambiguous and contradictory.⁴ For example, the report never mentions the PR party. The report also notes that "political violence during 1996 remained high," that "after the March cease-fire, guerrillas continued to employ death threats," and that "local political...