García-Cruz v. Sessions

• Decision Date: 26 May 2017
• Docket Number: No. 15-2272,15-2272
• Citation: 858 F.3d 1
• Parties: Felipe GARCÍA–CRUZ, Petitioner, v. Jefferson B. SESSIONS III, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — First Circuit

858 F.3d 1

Felipe GARCÍA–CRUZ, Petitioner,

v.Jefferson B. SESSIONS III,^* Attorney General of the United States, Respondent.

No. 15-2272

United States Court of Appeals, First Circuit.

May 26, 2017

Randy Olen, Providence, RI, for petitioner.

Lindsay M. Murphy, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, with whom Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, and Andrew N. O'Malley, Senior Litigation Counsel, were on brief, for respondent.

Before Torruella, Thompson, and Kayatta, Circuit Judges.

TORRUELLA, Circuit Judge.

Petitioner Felipe García–Cruz appeals from a Board of Immigration Appeals ("BIA") decision, which affirmed an Immigration Judge's ("IJ") decision denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). García–Cruz argues that he presented sufficient evidence to establish both past persecution and a well-founded fear of future persecution, and that he could not reasonably relocate within Guatemala, the country of removal.

BACKGROUND

A. Factual Background¹

García–Cruz is a native of Guatemala, from the village of Chixocol, in the municipality of Zacualpa. García–Cruz became involved in politics in June 2011, after seeing the Patriota (Spanish for "Patriot") party's mayoral candidate for Zacualpa, Gabriel Ventura, deliver a speech. That month, he joined the Patriota party, and by August he had become a member of the party's executive committee. As a member of the committee, he traveled to campaign events to handle set up and logistics; in his time with the party, he helped prepare three rallies.

The incumbent mayor, Ernesto Calachij–Riz, belonged to the Une y Gana (Spanish for "Unite and Win") party. According to García–Cruz, in the days leading up to the elections, Une y Gana members "began to carry weapons and threaten [Patriota supporters] with their weapons. They had guns and they had sticks and machetes ... and they knew who [Patriota supporters] were." Une y Gana members also threatened to "kill anyone who voted for Ventura." Patriota supporters were "ridiculed, sometimes even beaten by the Une y Gana party." Nevertheless, García–Cruz and his family cast their votes for Ventura on September 11, 2011.

That night, it was announced that Calachij–Riz, the Une y Gana candidate, had won the race. The next morning, Patriota members gathered at the Une y Gana victory rally, where a "huge fight broke out" and the "city hall was set on fire." García–Cruz was at home at the time, but other Patriota supporters told him that "the Une y Gana party was going to kill off all the members of the [Patriota party]." In addition, the Une y Gana party made "a list of people they accused of being responsible for the fire." García–Cruz was on the list, even though he "had nothing to do with the fire," because of his "involvement in the Patriota party."

García–Cruz received five threatening phone calls in the aftermath of the September 2011 election. The first came just days after the election, when an anonymous caller—who identified himself as an Une y Gana member—blamed García–Cruz for the fire, pledged to hold him responsible for it, and threatened his life. A second anonymous caller made similar allegations and stated: "We are watching you, and when we find you we will kill you." García–Cruz became so concerned for his life that he stopped leaving his house. In the third call, the caller asked García–Cruz why he had stopped leaving the house, to which García–Cruz responded that he was frightened.

Fearing for his life, García–Cruz moved to Cobán, Alta Verapaz, Guatemala. There, he found work running games at fairs and carnivals. On October 9, 2011, while in Cobán, García–Cruz received the next phone call. The caller asked why he had left Chixocol and told García–Cruz that they knew where he was. In the fifth and final phone call, in January 2012, the caller told García–Cruz that if he did not return to Chixocol, Une y Gana would kidnap his wife and children. García–Cruz never reported the threatening phone calls to authorities. He claimed that the local police were "in the present mayor's pocket," and he feared word would get back to those threatening him if he reported the calls to the national police.

In the days after the fifth phone call, García–Cruz relocated his family to the village of Salamá, about ten hours from Chixocol. García–Cruz also removed the chip from his cell phone so that he would not receive any more calls. After saving enough money, García–Cruz left Guatemala for the United States in May 2012. Nothing suggests that he was either harmed or threatened further between January and May of 2012.

The political conflict in Zacualpa resulted in other Patriota members being targeted. García–Cruz averred that "other members of the Patriota party were being kidnapped and beaten." Two or three weeks after the election, an acquaintance of Ventura was "taken from his home and beaten very badly." Another Patriota member was abducted by Une y Gana and only returned as part of a prisoner exchange. García–Cruz also testified that he knew of "at least one" person who was killed by Une y Gana "in the year that [he] left." García–Cruz does not know what happened to other members of the committee who were accused of burning the city hall, however. In June 2012, after García–Cruz fled Guatemala, Ventura was arrested by the police for alleged crimes against his political rivals, triggering further protests.

At the time of García–Cruz's hearing, the president of Guatemala was a member of the Patriota party, but the Une y Gana party remained in control of Zacualpa. In addition, García–Cruz's wife and children were still living in Salamá. García–Cruz, however, could not live with them because they lived with his wife's employer, and he would not be able to find work in Salamá.

B. Procedural History

García–Cruz conceded removability under 8 U.S.C. § 1182(a)(7)(A)(i)(I) and applied for asylum, withholding of removal, and protection under the CAT on January 22, 2013. On May 22, 2014, the IJ held a hearing on García–Cruz's application. The IJ found his testimony to be credible, but she ruled that García–Cruz did not establish past persecution. The IJ explained that García–Cruz was never physically harmed and had worked in public view, and the phone calls alone were not "so menacing as to have caused some actual harm" and so did not rise to the level of persecution. Moreover, given García–Cruz's failure to report the calls to authorities, the IJ "could not conclude the requisite government action or inaction."

The IJ also concluded that García–Cruz's fear of future persecution was not well-founded; given the time elapsed and García–Cruz's limited involvement with the campaign, there was little support for his assertion that he would be targeted if he returned to Guatemala. Furthermore, the IJ found that, "although it would be economically difficult," García–Cruz could relocate within Guatemala because Guatemala's president at the time of the hearing was a member of the Patriota party and "the Patriota party ha[d] gained significant ground in Guatemala." Specifically, García–Cruz could "reasonabl[y]" and "safely" relocate to Salamá, where he had relocated his wife and children. Thus, the IJ denied García–Cruz's applications for both asylum and withholding of removal. The IJ concluded by denying García–Cruz's application for protection under the CAT given his failure to demonstrate that he would be subjected to torture by or with the acquiescence of a public official.

On September 30, 2015, the BIA upheld the IJ's decision on two grounds. First, it adopted the IJ's determination that the "five anonymous threatening phone calls were not so menacing as to have caused some actual harm," and so they did not rise to the level of past persecution. Second, it found "no clear error of fact or mistake of law in the Immigration Judge's assessment" that García–Cruz "would be able to relocate to another area in Guatemala." It cited the fact that his wife and children lived in Salamá as "strong evidence that [García–Cruz] could do so as well." Thus, the BIA ruled that García–Cruz was not eligible for either asylum or withholding of removal. Finally, the BIA affirmed that García–Cruz failed to establish that "he had ever been tortured or that government officials seek to torture him."² The BIA therefore dismissed his appeal, and García–Cruz petitioned this Court for review.

ANALYSIS

We review the BIA's findings of fact under a "substantial evidence" standard, and we will uphold them if they are "supported by reasonable, substantial, and probative evidence on the record considered as a whole." Xin Qiang Liu v. Lynch , 802 F.3d 69, 74 (1st Cir. 2015) (quoting Hasan v. Holder , 673 F.3d 26, 33 (1st Cir. 2012) ). Questions of law are reviewed de novo . Id. Thus, we will reverse the BIA's determination only if "any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B).

To be eligible for asylum, García–Cruz must establish that he is unwilling or unable to return to Guatemala "because of persecution or 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)(A). "Proof of past persecution creates a presumption of a well-founded fear of future persecution." Ordonez–Quino v. Holder , 760 F.3d 80, 87 (1st Cir. 2014) ; 8 C.F.R. § 1208.13(b)(1). But the Government can rebut this presumption by demonstrating either changed circumstances or that García–Cruz "could avoid future persecution by relocating to another part of [Guatemala] ... and under all the circumstances, it would be reasonable to expect [him] to do so." 8 C.F.R. § 1208.13(b)(1)(i)(A)–(B). Similarly, García–Cruz cannot establish a well-founded fear of future persecution if he "could avoid persecution by...