Lemus-Arita v. Sessions

• Decision Date: 17 April 2017
• Docket Number: No. 16-1924,16-1924
• Citation: 854 F.3d 476
• Parties: Francisco Emanuel LEMUS–ARITA, Petitioner v. Jefferson B. SESSIONS, III, Attorney General of the United States, Respondent
• Court: U.S. Court of Appeals — Eighth Circuit

854 F.3d 476

Francisco Emanuel LEMUS–ARITA, Petitioner

v.Jefferson B. SESSIONS, III, Attorney General of the United States¹ , Respondent

No. 16-1924

United States Court of Appeals, Eighth Circuit.

Submitted: January 13, 2017

Filed: April 17, 2017

Counsel who presented argument on behalf of the petitioner was Matthew Lorn Hoppock, of Overland Park, KS. The following attorney(s) appeared on the petitioner brief; Matthew Lorn Hoppock, of Overland Park, KS.

Counsel who presented argument on behalf of the respondent was Melissa Lynn Neiman–Kelting, of Washington, DC. In addition to Ms. Neiman–Kelting, the following attorney(s) appeared on the respondent brief; Benjamin C. Mizer, Principal Deputy Assistant Attorney General and M. Jocelyn Lopez Wright, Acting Assistant Director, Office of Immigration Litigation.

Before COLLOTON, GRUENDER, and KELLY, Circuit Judges.

GRUENDER, Circuit Judge.

Francisco Lemus–Arita petitions for review of the Board of Immigration Appeals's ("BIA") decision affirming the immigration judge's ("IJ") denial of Lemus–Arita's requests for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT").² For the following reasons, we deny the petition.

I. Background

Lemus–Arita is a native and citizen of Guatemala. He initially entered the United States illegally in 2002 but returned to Guatemala in December of 2011 in anticipation of relocating there with his wife and son. After staying approximately one month, he decided to return to the United States and entered illegally near Brownsville, Texas on January 23, 2012. The Department of Homeland Security detained him and issued a notice to appear. Lemus–Arita conceded removability and filed an application for asylum, withholding of removal, and relief under the CAT.

In a hearing before an IJ, Lemus–Arita testified that when he returned to Guatemala, he learned that his cousin Oscar had been killed in August 2011.³ Oscar was rumored to have been involved in a kidnapping, and his murder was purportedly perpetrated by a vigilante group called the Anti–Secuestro (that is, "anti-kidnapping"). Lemus–Arita testified that his uncle began a rumor that Lemus–Arita had returned from the United States with money to avenge his cousin's death. Soon thereafter, family members relayed rumors to Lemus–Arita that the Anti–Secuestro group was looking for him and wanted to kill him. Lemus–Arita immediately abandoned his plans to establish a home in Guatemala and returned to the United States. Lemus–Arita conceded that these threats were never conveyed to him personally, that he never saw anyone from the Anti– Secuestro group, and that he was never harmed. Lemus–Arita did not report the threats to the police or the Guatemalan government because of rumors that police officers were members of the Anti–Secuestro group. Lemus–Arita's father made a police report, but no investigation resulted.

Lemus–Arita's sister, Evelyn, testified that, after Lemus–Arita left Guatemala, she saw trucks in her village painted with the "mano dura" symbol, which identified a Guatemalan political party and which she associated with the people who purportedly killed Oscar (although she did not identify those individuals as members of the Anti–Secuestro group). Evelyn also testified that armed men in black clothing and ski masks who refused to identify themselves came to her house and told her that they were looking for Lemus–Arita and were going to kill him. She testified that they threatened her with harm if she did not reveal her brother's location, and they later watched the house and followed her for several days. Lemus–Arita also testified that Evelyn called him and told him that someone shot at her house. However, she was never harmed, and she did not report these incidents to the police. Evelyn testified that the family never confirmed why Oscar was killed and that she was unaware of whether Oscar had been accused of kidnapping.

The IJ found Lemus–Arita's testimony credible, but he found Evelyn's testimony only partially credible because her statements were inconsistent and she had an asylum application of her own pending at the time. The IJ then found that Lemus–Arita did not qualify for asylum because he had not established that he had suffered past persecution or that he had a well-founded fear of future persecution. As a result, the IJ found that Lemus–Arita also had not carried his burden of establishing that he qualified for withholding of removal or relief under the CAT. In the alternative, the IJ found that Lemus–Arita had not demonstrated that any persecution would be at the hands of the Guatemalan government or a third party the government is unwilling or unable to control. The BIA affirmed the IJ's decision.

Lemus–Arita petitions for review. The BIA's decision was the final agency decision, see 8 U.S.C. § 1101(a)(47)(B)(i), and we have jurisdiction to consider the appeal under 8 U.S.C. § 1252(a)(5).

II. Discussion

"We review the BIA's decision, as it is the final agency action, but to the extent that the BIA adopted the findings or reasoning of the IJ, we also review the IJ's decision as part of the final agency action." Gutierrez–Vidal v. Holder , 709 F.3d 728, 731–32 (8th Cir. 2013) (quotation omitted). We review legal determinations de novo , Agha v. Holder , 743 F.3d 609, 614 (8th Cir. 2014), and accept the agency's factual findings "unless any reasonable adjudicator would be compelled to conclude to the contrary," Fofana v. Holder , 704 F.3d 554, 557 (8th Cir. 2013). Further, we review "decisions on asylum, withholding of removal, and CAT protection under the substantial evidence standard, upholding the decision if it is supported by reasonable, substantial, and probative evidence based on the record as a whole." Id. (quotation omitted).

Lemus–Arita initially contends that the BIA applied the wrong standard of review to the IJ's finding that Lemus–Arita had not demonstrated an objectively reasonable fear of future persecution and that this issue alone requires remand. The BIA reviews factual findings for clear error and all other matters de novo . 8 C.F.R. § 1003.1(d)(3)(i), (ii). "[W]hether an asylum applicant has established an objectively reasonable fear of [future] persecution ... is a legal determination that remains subject to de novo review." Matter of Z–Z–O, Respondent , 26 I. & N. Dec. 586, 590–91 (BIA 2015). Lemus–Arita argues that the BIA reviewed this finding for clear error, but he relies on a strained interpretation of the BIA's decision. The BIA explained that it "review[ed] the Immigration Judge's factual findings for clear error and all other issues de novo." After summarizing the IJ's findings, including those with respect to the objective reasonableness of Lemus–Arita's fear of future persecution, the BIA concluded "[w]e see no clear error of fact or mistake of law in the Immigration Judge's assessment." Lemus–Arita contends that the BIA's wording leaves "no question" that the BIA reviewed for clear error the IJ's finding that Lemus–Arita's fear of future persecution was objectively unreasonable. We disagree. The phrase "clear error" modifies "fact," not "mistake of law." Lemus–Arita provides no reason to believe that the BIA failed to use de novo review to determine whether Lemus–Arita had an objectively reasonable fear of future persecution. Accordingly, we find no reason to conclude that the BIA applied the wrong standard of review.

Next, Lemus–Arita challenges the merits of the BIA's decision. The Attorney General may grant asylum "to any alien who demonstrates that he is a ‘refugee’ within the meaning of the Immigration and Nationality Act." Fofana , 704 F.3d at 557 (quoting 8 U.S.C. § 1158(b)(1)(A) ). The Act defines a "refugee" as "an alien ‘who is unable or unwilling to return to ... [his] country [of nationality] 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.’ " Id. (alterations in original) (quoting 8 U.S.C. § 1101(a)(42)(A) ). The burden is on the applicant to establish refugee status. 8 U.S.C. § 1158(b)(1)(B)(i).

First, substantial evidence supports the BIA's conclusion that Lemus–Arita failed to demonstrate past persecution. Persecution is "an extreme concept that involves the infliction or threat of death, torture, or injury to one's person or freedom, on account of a protected characteristic," and though a single death threat may constitute persecution, a threat that is "exaggerated, nonspecific, or lacking in immediacy may be insufficient." La v. Holder , 701 F.3d 566, 570–71 (8th Cir. 2012) (citations omitted). "Past persecution does not normally include unfulfilled threats of physical injury...." Setiadi v. Gonzales , 437 F.3d 710, 713 (8th Cir. 2006). Rather, "[t]hreats alone constitute persecution in only a small category of cases, and only when the threats are so menacing as to cause significant actual suffering or harm." La , 701 F.3d at 571 (quotation omitted).

Lemus–Arita was never harmed and never threatened directly, receiving only secondhand warnings. Indeed, Lemus–Arita could not point to anything more than rumors to substantiate the identity of the group threatening him. Lemus–Arita emphasizes the threats against his sister, but these threats did not result in physical harm to her, and she did not immediately flee Guatemala like her brother. Cf. Flores v. Holder , 699 F.3d 998, 1000–01, 1003 (8th Cir. 2012) (calling into question the BIA's determination that an applicant failed to demonstrate past persecution where family members who refused to provide the applicant's whereabouts were killed and his sister was raped). We have found direct and more menacing threats insufficient to demonstrate past persecution. See Ladyha v. Holder , 588 F.3d 574, 577 (8th Cir. 2009) (finding a threat at knifepoint insufficient to demonstrate...