Lobo v. Holder

• Decision Date: 06 July 2012
• Docket Number: No. 11–1640.,11–1640.
• Citation: 684 F.3d 11
• Parties: Carlos Alberto LOBO, Darwin Alberto Lobo, Ciria Jimena Lobo, and Karen Vanessa Lobo, Petitioners, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — First Circuit

684 F.3d 11

Carlos Alberto LOBO, Darwin Alberto Lobo, Ciria Jimena Lobo, and Karen Vanessa Lobo, Petitioners,

v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 11–1640.

United States Court of Appeals,First Circuit.

Submitted May 11, 2012.

Decided July 6, 2012.

Harvey J. Bazile and Bazile & Associates, on brief for petitioners.

Nancy K. Canter, Attorney, Civil Division, Office of Immigration Litigation, Tony West, Assistant Attorney General, Civil Division, and Shelley R. Goad, Assistant Director, on brief for respondent.

Before TORRUELLA, LIPEZ, and HOWARD, Circuit Judges.

TORRUELLA, Circuit Judge.

Petitioners Carlos Alberto Lobo (“Lobo”) and his children (collectively, “Petitioners” or “Lobos”) ¹ seek review of a final order of removal issued by the Board of Immigration Appeals (“BIA”) denying their applications for asylum, withholding of removal, and protection under Article III of the United Nations Convention Against Torture (“CAT”). After careful consideration, we deny their petition for review.

I. Background

Petitioners are natives and citizens of Honduras who entered the United States without inspection on approximately October 27, 1991. We first turn our eyes to those events that transpired prior to the Lobos' border crossing, which are derived from Lobo's testimony before the immigration judge (“IJ”).

Lobo and his family lived in San Pedro Sula, Honduras, where Lobo worked as a tax analyst and, following a promotion, as chief of the commercial department for the city. Lobo lived and worked there for approximately twelve to thirteen years. Lobo's job responsibilities were equivalent to those of a tax collector: he was in charge of ensuring that commercial establishments and merchants in the Municipality of San Pedro Sula properly paid their taxes on time. If a business was unable to pay its taxes, it fell to Lobo's department to arrange a payment plan for the company to assure it would not default on its payments.

Lobo's control and monitoring of commercial establishments' tax payments proved to be a demanding job. As tax evasion's shadow cast ever wider over San Pedro Sula, Lobo commonly had the responsibility of fining or closing businesses that failed to meet their tax obligations. Perhaps true to form, one of the businesses that decided to take a gamble with its tax obligations was a casino operating in the Municipality. By 1989, the casino had failed to pay its taxes for the third time in three years, the overdue payments of which totaled approximately three and a half million U.S. dollars. With potential fraud flags flying, investigations commenced, with Lobo leading the investigatory pack.

Lobo's probing uncovered the following details: the casino was managed by a woman closely associated with the Municipality,² and the casino was not being required to pay taxes due to continuing fraud within the relevant hierarchical governmental structure. Lobo prepared a report of his findings and conclusions and distributed it to the casino and various government entities, including the Municipality's Audit Department, Accounting Department, and Treasury Department.

The report was, to put it lightly, not well-received. Soon after Lobo's report went public, Lobo began to receive threats. In July of 1990, his boss, José Dennis Lagos (“Lagos”), began pressuring Lobo to make the report disappear by threatening to make his job disappear. Lobo declined Lagos's request. That same month, Lobo began to receive threats at his home.

Lobo testified that he received approximately five or six threats in total between July 1990 and September 1991,³ and that sometime during the course of these threats, Lobo was fired from his job. Lobo described his threats as follows: ⁴ two threats from Lagos; one threat from an attorney sent by Lagos; another threat from a woman (whose relation to Lobo or the Municipality is unclear from the record) who came to his house and aimed “a gun to [his] chest” and demanded money; and another from persons (whom Lobo believed were sent by Lagos) who came to his house and threatened Lobo and his family. Lobo noted that the threats to his family were “not just one occasion; it was various times” before he left Honduras. Lobo additionally testified that, after being fired from his job, he continued to receive threats at his home, whether over the phone or in person, and that immediately before he departed for the United States, he received a threat from “an agent that worked with the dean” ⁵ who came to his house with a firearm.⁶ Lobo stated that he never reported these warnings for fear that those responsible for the confrontations might be associated with the authorities.

By late September 1991, Lobo had reached his breaking point. Lobo left Honduras along with his three children, crossing the Mexican border and entering the United States without inspection on or about October 27, 1991.

On May 21, 1992, Lobo filed an affirmative asylum application with the Immigration and Naturalization Service (“INS”), predecessor to the United States Citizenship and Immigration Naturalization Service (“USCIS”). In 2006, an asylum officer at USCIS interviewed Lobo about his case. The officer subsequently referred his application to the Immigration Court.

On September 7, 2007, the Department of Homeland Security (“DHS”) commenced removal proceedings against Petitioners, issuing a “Notice to Appear” (the “Notice”) to Lobo and his three children. The DHS charged Lobo and his children under § 212(a)(6)(A)(i) of the Immigration and Nationality Act as aliens present in the United States without having been admitted or paroled following inspection. The Notice stated that Lobo and his children, citizens of Honduras, had illegally entered the United States via Texas on approximately October 27, 1991.

On January 15, 2008, Petitioners appeared before the IJ. At the hearing, Petitioners admitted all facts, conceded removability, and acknowledged they would be seeking asylum, withholding of removal, and protection under CAT. ⁷ Lobo also testified at the hearing, recounting the aforementioned events underlying his reasons for fearing return to Honduras.

On April 28, 2009, the IJ, having considered Petitioners' applications and Lobo's testimony, denied their applications and ordered their removal. The IJ concluded that Lobo had failed to establish past persecution or a well-founded fear of future persecution to qualify for asylum. Specifically, the IJ determined that Lobo's evidence did not rise to a level sufficient to constitute persecution. The IJ stated that no evidence showed the threats Lobo received were likely to be carried out; no harm in fact befell any of the Lobos during the over year-long threat period; and no evidence showed that others in Honduras had been harmed for failure to remain quiet in the face of corrupt business activities—with the exception of Lobo's reference to a missing reporter, which the IJ deemed too lacking in proof to be of any weight in Lobo's case. Additionally, the IJ noted that Lobo had not been active in Honduran politics prior to leaving, and his five brothers and mother had remained living in Honduras unharmed, despite Lobo's contention that individuals, from time to time, asked as to his whereabouts (which Lobo asserted served as proof of an ongoing risk to his life and safety).

As to the withholding of removal claim, the IJ held that because Lobo could not establish a claim for asylum, he could not meet the higher standard of proof needed to make out a claim for withholding of removal; the IJ thus denied this claim as well. The IJ similarly denied Lobo's request for CAT relief, finding that Lobo had failed to offer any proof that he risked facing torture should he return to Honduras. Lastly, the IJ denied the remaining Lobos' applications, stating that because “each of the co-respondents is older than [twenty-one],” they “no longer ha[ve] a viable claim for derivative asylum in any event.”

On May 9, 2011, the BIA affirmed the IJ's decision dismissing Petitioners' appeal.⁸ Lobo then timely filed a petition for review with this court.

II. Discussion

We begin with the applicable standard of review. Because the BIA here offered its own elucidations upon the IJ's reasoning, we review both decisions “as a unit.” Arévalo–Girón v. Holder, 667 F.3d 79, 81 (1st Cir.2012). Our review requires us to adopt both a deferential and de novo stance. Id. at 81–82. On the one hand, we apply the “substantial evidence” standard and defer to those findings of fact that are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Nikijuluw v. Gonzales, 427 F.3d 115, 120 (1st Cir.2005) (quoting I.N.S. v. Elias–Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)) (internal quotation marks omitted). On the other hand, we review anew all legal conclusions, “with appropriate deference to the agency's interpretation of the governing statute.” Sok v. Mukasey, 526 F.3d 48, 53 (1st Cir.2008). In the end, we may only set aside the agency's determination if the “evidence points unerringly in the opposite direction.” Laurent v. Ashcroft, 359 F.3d 59, 64 (1st Cir.2004); see also Castillo–Díaz v. Holder, 562 F.3d 23, 26 (1st Cir.2009) (noting reversal of agency decision only warranted if a “reasonable adjudicator would be compelled to conclude to the contrary”) (quoting 8 U.S.C. § 1252(b)(4)(B)) (internal quotation marks omitted).

The evidentiary burden here lies with Lobo to show that he is a refugee under the immigration laws. See8 U.S.C. § 1158(b)(1)(B)(i); Nikijuluw, 427 F.3d at 120. To establish such qualification for asylum, Lobo must demonstrate that he is unable to go back to Honduras due to “[past] persecution or a well-founded fear of [future] persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Hasan v. Holder, 673 F.3d 26, 30 (1st Cir.2012) (qu...