Estrada v. Immigration & Naturalization Serv.
| Decision Date | 13 February 2002 |
| Docket Number | 99-70216,9 |
| Parties | GIOVANNI, v. IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT.UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT |
| Court | U.S. Court of Appeals — Ninth Circuit |
Petition to Review a Decision of the Board of Immigration Appeals INS No. A75-098-668
Counsel Lori R. E. Ploeger, Cooley Godward Llp, Palo Alto, California, for the petitioner, and Giovanni Molina-Estrada, Florence, Arizona, pro se petitioner. Anh-Thu Mai and Robbin K. Blaya, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for the respondent.
OPINION
Petitioner Giovanni Molina-Estrada asks us to decide whether the fact that he was 13 years old when he arrived in the United States in 1983 constitutes an "extraordinary circumstance" excusing his failure to file an application for asylum by the statutory deadline of April 1, 1998. We lack jurisdiction to decide that question. We also conclude that the Board of Immigration Appeals (BIA) correctly held that Petitioner was ineligible for cancellation of removal and conclude that substantial evidence supports the BIA's decision regarding the withholding of removal. Accordingly, we dismiss the petition in part and deny it in part.
Petitioner Giovanni Molina-Estrada and his mother, who were citizens of Guatemala, together entered the United States from Mexico without inspection on February 25, 1983. Petitioner was 13 years old at the time. He has remained in the United States since then.
About 15 years later, Petitioner was arrested in Reno, Nevada, for driving under the influence of intoxicants. Thereafter, in April of 1998, the Immigration and Naturalization Service issued a Notice to Appear for removal proceedings. On July 20, 1998, Petitioner filed an application for asylum. He also sought cancellation of removal and withholding of removal. Petitioner admitted that he was in the United States illegally.
At his removal hearing, Petitioner testified to the following relevant facts. In December 1982, he was injured, and his father and cousin were killed, when guerillas bombed his family's house in Guatemala. After the attack, Petitioner and his mother hid at his grandmother's house in another city in Guatemala. According to his testimony, Petitioner's father, a captain in the National Order, was a "very powerful " force against the guerillas. After his father's death, the guerillas made telephone calls to the home of Petitioner's sister, threatening the family. Petitioner also testified that similar calls were made to his grandmother's house. Petitioner stated that his uncles and cousins still lived in Guatemala and that, during a recent call, they had told him that conditions were still dangerous.
The immigration judge (IJ) denied Petitioner's applications for cancellation of removal, asylum, and withholding of removal. The IJ found, first, that Petitioner's mother is not a permanent legal resident of the United States, a citizen of the United States, or an otherwise "qualifying relative" under the cancellation-of-removal statutes; as a result, Petitioner could not qualify for cancellation of removal. Second, the IJ denied Petitioner's application for asylum because it was untimely filed. Finally, the IJ reviewed Petitioner's application for withholding of removal and concluded that Petitioner had not presented evidence that he had been persecuted on account of any of the statutory reasons, that the armed conflict in Guatemala had ended, that peace accords had been signed, and that Petitioner did not face persecution upon return to Guatemala.
Petitioner appealed the IJ's decision to the BIA. The BIA dismissed the appeal, adopting, for the most part, the IJ's reasoning. Neither the IJ nor the BIA questioned Petitioner's credibility.
We lack jurisdiction to review the BIA's determination that no "extraordinary circumstances" excused Petitioner's untimely filing of his application for asylum. 8 U.S.C. §§ 1158(a)(3); Hakeem v. INS, 273 F.3d 812, 815 (2001); see also 8 U.S.C. §§ 1158(a)(2)(D) (); 8 C.F.R. §§ 208.4(a)(5) ().
We also lack jurisdiction to review a discretionary decision to deny cancellation of removal. 8 U.S.C. §§ 1252(a)(2)(B)(i); 8 U.S.C. §§ 1229b(b)(1). However, we have jurisdiction to review the BIA's legal determination that Petitioner is statutorily ineligible for cancellation of removal. Montero-Martinez v. Ashcroft, No. 99-70596, 2002 WL 54640, at *5 (9th Cir. Jan. 16, 2002).
We have jurisdiction over the petition to review the BIA's dismissal of Petitioner's withholding-of-removal claim. 8 U.S.C. §§ 1252(a).
We review for substantial evidence the BIA's decision whether to withhold removal. Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir. 2001). We review de novo the BIA's resolution of "purely legal questions." Castillo-Perez v. INS, 212 F.3d 518, 523 (9th Cir. 2000). Factual findings by the BIA are "conclusive" if " `supported by reasonable, substantial, and probative evidence on the record considered as a whole.' " Singh v. Ilchert, 63 F.3d 1501, 1506 n.1 (9th Cir. 1995) (quoting 8 U.S.C. §§ 1105a(a)(4), now repealed); see also Al-Harbi, 242 F.3d at 888. "To obtain reversal, petitioner must show that `the evidence not only supports that conclusion, but compels it.' " Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir. 1997) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992)); see also Al-Harbi, 242 F.3d at 888. Where, as here, the BIA has reviewed the IJ's decision and incorporated portions of it as its own, we treat the incorporated parts of the IJ's decision as the BIA's. Andriasian v. INS, 180 F.3d 1033, 1040 (9th Cir. 1999); Gonzalez v. INS, 82 F.3d 903, 907 (9th Cir. 1996).
To be eligible for cancellation of removal, an alien who has not been admitted lawfully for permanent residence in the United States must establish, among other factors,"that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence." 8 U.S.C. §§ 1229b(b)(1)(D) (emphasis added). Petitioner argued below that his removal would cause exceptional hardship to his mother who, he alleged, was a lawful permanent resident of the United States.
Petitioner presented no evidence of his mother's permanent-resident status. INS records showed that his mother was not a lawful permanent resident. The BIA therefore correctly concluded that, as a matter of law, Petitioner was ineligible for cancellation of removal.
Title 8 U.S.C. §§ 1231(b)(3)(A) provides that an alien shall not be removed if "the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion." An alien may establish the requisite threat through testimony alone. 8 C.F.R. §§ 208.16(b). Moreover, in this context the past is prologue to the future:
If the applicant is determined to have suffered past persecution in the proposed country of removal on account of race, religion, nationality, membership in a particular social group, or political opinion, it shall be presumed that the applicant's life or freedom would be threatened in the future in the country of removal on the basis of the original claim. 8 C.F.R. §§ 208.16(b)(1)(i).
If the alien does not establish past persecution, however, the presumption of future persecution does not apply. Duarte de Guinac v. INS, 179 F.3d 1156, 1159 (9th Cir. 1999) (citing 8 C.F.R. §§ 208.13(b)(1)(i)). Instead, the applicant must "show a good reason to fear future persecution by adducing credible, direct, and specific evidence in the record of facts that would support a reasonable fear of persecution. " Id.
In this case, the IJ found, and the BIA agreed, that Petitioner's family had been attacked and that the attackers had targeted Petitioner's father because of his role in the National Order. But the IJ and the BIA also found that the attack was incident to general, ongoing civil conflict in Guatemala in 1982 and, for that reason, did not qualify as persecution "for any of the five statutory reasons."
The IJ also concluded, and the BIA agreed, that Petitioner had not established a reasonable fear of future persecution. Apparently relying on the "Guatemala -- Profile of Asylum Claims & Country Conditions" report produced by the State Department in June 1997, which is contained in the record, the IJ found that the civil conflict in Guatemala had ended, that peace accords had been signed, and that there were some --but very few--incidents of violence continuing in Guatemala. Petitioner acknowledged that the civil conflict in Guatemala had ended, but said that he nevertheless feared future persecution in revenge for his father's role in the military more than 15 years earlier.
On appeal, Petitioner argues that the attack on his father qualifies as past persecution of him "on account of" two statutory grounds: (1) imputed political opinion and (2) membership in a particular social group.
Petitioner first contends that the attack on the family home and the subsequent threats constituted persecution on account of his father's political opinion, which was imputed to him. "To establish imputed political opinion,`an applicant must show that his persecutors actually imputed a political opinion to him.' " Navas v. INS, 217 F.3d 646, 659 (9th Cir. 2000) (quoting Sangha, 103 F.3d at 1489).
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...failed to establish past persecution, Juan Francisco is not entitled to a presumption of future persecution. See Molina-Estrada v. INS, 293 F.3d 1089, 1096 (9th Cir. 2002). Juan Francisco does not argue that he otherwise established a well-founded fear of future persecution. Accordingly, hi......