Bartolo-Diego v. Gonzales

• Decision Date: 27 June 2007
• Docket Number: No. 06-1642.,06-1642.
• Citation: 490 F.3d 1024
• Parties: Jose Luiz BARTOLO-DIEGO, Petitioner, v. Alberto GONZALES, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

490 F.3d 1024

Jose Luiz BARTOLO-DIEGO, Petitioner, v. Alberto GONZALES, Attorney General of the United States, Respondent.

No. 06-1642.

United States Court of Appeals, Eighth Circuit.

Submitted: March 15, 2007.

Filed: June 27, 2007.

Counsel who represented the appellant was Joseph L. Wilson of Omaha, NE.

Counsel who represented the appellee was Robyn A. Millenacker, AUSA, of Minneapolis, MN.

Before WOLLMAN, JOHN R. GIBSON, and MURPHY, Circuit Judges.

WOLLMAN, Circuit Judge.

Petitioner seeks review of the Board of Immigration Appeals' (BIA) affirmance of the order entered by an Immigration Judge (IJ) denying his claim for relief under the Immigration and Nationality Act ("INA" or "the Act"), 8 U.S.C. § 1252(a)(1) (2000). We deny the petition.

I.

Bartolo-Diego was born in Guatemala on June 5, 1977, and resided there until he fled the country in 1994. His father had been a member of the Guatemalan military until he was killed in 1984 while fighting against anti-government guerilla forces. In 1989, when Bartolo-Diego was approximately twelve years old, the guerillas came to his home, demanded that he join them, and threatened to harm him and his family if he refused. Bartolo-Diego did refuse to join them, and the guerillas proceeded to beat him severely. Ultimately, they left without him because of his age. Although the guerillas returned a number of times in the ensuing years and beat his sister for hiding people from them, Bartolo-Diego made it a practice to hide whenever he saw signs of their approach and therefore escaped conscription or additional harm. In August of 1994, Bartolo-Diego relocated to the United States, allegedly because of his constant fear for his life from the threat of the Guatemalan guerillas.

The Department of Homeland Security commenced removal proceedings against Bartolo-Diego pursuant to the Act. Bartolo-Diego conceded to being removable. He submitted an application for asylum, a request for withholding of removal, and a deferral of removal under the United Nations Convention Against Torture ("CAT"). The IJ found that Bartolo-Diego (1) was ineligible for asylum because he had failed to file his application within the statutorily mandated period; (2) did not qualify for a withholding of removal because there was an insufficient nexus between his evidence of past persecution and the statutorily protected classifications and because the political conditions in Guatemala had changed in such a way as to render fear of future persecution objectively unreasonable; and (3) did not qualify for CAT relief because the guerillas were not acting at the behest of or with the acquiescence of the Guatemalan government. The IJ granted Bartolo-Diego the privilege of voluntary departure. The BIA adopted the IJ's reasoning without comment.

II.

When the BIA summarily adopts and affirms an IJ's decision, we review the IJ's decision directly. Aziz v. Gonzales, 478 F.3d 854, 857 (8th Cir.2007) (citing Bernal-Rendon v. Gonzales, 419 F.3d 877, 880 (8th Cir.2005)).

A. Asylum

The BIA and IJ determined that asylum relief was unavailable because Bartolo-Diego did not timely file his asylum application and did not offer testimony in support of an exception from the timely filing requirement. The regulations and law require, in relevant part, that any application for asylum under the Act must be filed within a one-year period commencing on the date of an alien's last arrival in the United States or on April 1, 1997, whichever is later.¹ 8 U.S.C. § 1158(a)(2)(b); 8 C.F.R. § 1208.4(a)(2)(ii) (2005). In the absence of alleged constitutional violations or errors of law, we lack jurisdiction to review the determination that Bartolo-Diego's application was untimely and that no extraordinary circumstances had been presented that might excuse its untimeliness. 8 U.S.C. § 1158(a)(3) ("No court shall have jurisdiction to review any determination of the Attorney General under paragraph (2)."); Ignatova v. Gonzales, 430 F.3d 1209, 1213-14 (8th Cir.2005); see also Yakovenko v. Gonzales, 477 F.3d 631, 635 (8th Cir.2007) (noting that we have limited jurisdiction to review alleged constitutional violations or errors of law for decisions made under § 1158(a)(2)). Bartolo-Diego does not raise any constitutional challenges or questions of law regarding the determination that his application was untimely and that he failed to show that he should be excused from the deadline due to extraordinary or changed circumstances. Accordingly, we lack jurisdiction to review his asylum claim.

B. Withholding of Removal

There is no similar one-year requirement for applications for withholding of removal or CAT protection. We therefore have jurisdiction to review the IJ's denial of those grounds for relief. 8 U.S.C. § 1252(a); Mouawad v. Gonzales, 485 F.3d 405, 411 (8th Cir.2007).

To qualify for withholding of removal, an alien must show a clear probability of persecution in the proposed country of removal on the basis of race, religion, nationality, membership in a particular social group, or political opinion. 8 C.F.R. § 1208.16(b); Mouawad, 485 F.3d at 411. The applicant may make this requisite showing by either: (1) showing past persecution on the basis of a protected ground, thereby "creating a rebuttable presumption that his life or freedom would be threatened upon removal," or (2) establishing that "it is more likely than not that he or she would be persecuted" upon removal based upon a protected ground. Mouawad, 485 F.3d at 411-12 (citing 8 C.F.R. § 1208.16(b)(1), (2)). This is a higher standard than the "well-founded fear of persecution" standard applicable in asylum analysis. Aziz, 478 F.3d at 858. We may not reverse an IJ's findings unless "the evidence not only supports [a contrary] conclusion, but compels it." INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).

The IJ found that Bartolo-Diego had not shown that he had suffered harm "on account of" any ground enumerated in the Act. As a matter of law, guerilla attempts to forcibly compel a person to join them, absent additional evidence that the conscription was motivated by that person's political opinion, are insufficient to compel a finding of persecution on account of political belief. Elias-Zacarias, 502 U.S. at 483-84, 112 S.Ct. 812; see also Melecio-Saquil v. Ashcroft, 337 F.3d 983, 986 (8th Cir.2003) (applying this principle in an asylum claim based on forced recruitment attempts by Guatemalan guerillas). Bartolo-Diego asserts, however, that the guerillas harassed and attempted to conscript him because they imputed to him the political beliefs of his father. Assuming, without deciding, that imputed political opinion may satisfy the Act, see Sangha v. INS, 103 F.3d 1482, 1489 (9th Cir.1997), "since the statute makes motive critical, [Bartolo-Diego] must provide some evidence of it, direct or circumstantial." Elias-Zacarias, 502 U.S. at 483, 112 S.Ct. 812.

Even if Bartolo-Diego's father's death at the hands of the guerillas because of his involvement in the Guatemalan military allows for the possibility that the guerillas might impute the political beliefs of the father to the son, Bartolo-Diego provided no evidence, circumstantial or otherwise, suggesting that they did do so. See Melecio-Saquil, 337 F.3d at 986 (noting that petitioner failed to prove the guerillas acted because of his teenage membership in Guatemala's civil patrol). In light of the guerillas' actual behavior toward Bartolo-Diego, we are not compelled to conclude that the IJ was wrong when it found that the guerillas "did not identify the [petitioner] or seek to recruit him because of any political opinion, or punishment for his father's service within the military." A.R. at 43. "To the contrary, by [petitioner's] testimony, it appears to be clear that [he] was simply targeted as a young man who might be sympathetic to the guerilla cause." Id. Bartolo-Diego acknowledged that he did not belong to any political party and offered no evidence that he maintained any political opinions. He testified that, on their first approach, the guerillas honored his refusal to accept their demands that he join them because he was too young. A.R. at 63-64. As the IJ noted, this behavior is entirely consistent with that of a militant group motivated to fill its ranks with able-bodied soldiers. Cf. Dominguez v. Ashcroft, 336 F.3d 678, 680 (8th Cir.2003) ("A reasonable fact finder could decide from this record that the guerillas were simply trying to...