Lopez Perez v. Holder

• Decision Date: 20 November 2009
• Docket Number: No. 09-1022.,09-1022.
• Citation: 587 F.3d 456
• Parties: Santos LOPEZ PEREZ et al., Petitioners, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

587 F.3d 456

Santos LOPEZ PEREZ et al., Petitioners, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.

No. 09-1022.

United States Court of Appeals, First Circuit.

Submitted September 30, 2009.

Decided November 20, 2009.

Lidia M. Sanchez on brief for petitioners.

Tony West, Assistant Attorney General, Civil Division, Linda S. Wernery, Assistant Director, Office of Immigration Litigation, and Susan Bennett Green, Trial Attorney, Office of Immigration Litigation, on brief for respondent.

Before HOWARD, RIPPLE^* and SELYA, Circuit Judges.

SELYA, Circuit Judge.

This is a petition for judicial review of a final order of the Board of Immigration Appeals (BIA) denying relief to, and commanding the removal of, certain petitioning aliens. After careful consideration, we deny the petition.

The background facts are straightforward. Santos Lopez Perez (the petitioner) is a Guatemalan national who entered the United States, without inspection, in 1994. Later that year, she asked for asylum. Her claim rested on three pillars. First, she asserted that, while walking to church in her home town (outside of Quetzaltepeque), she often observed mutilated corpses in plain sight. Second, she asserted that, after she left Guatemala, her husband (who suffers from Parkinson's disease) was victimized by relatives; the relatives stole from him and threw rocks at the house in which he lived. Third, she asserted that, if she were repatriated, she would be at risk of grave harm because Guatemalans perceive those who return from the United States as wealthy (and, thus, ripe for plunder).

After a long, unexplained hiatus, federal authorities initiated removal proceedings in 2002. The petitioner conceded removability and cross-applied for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (CAT).¹

On June 1, 2007, the petitioner's case went forward before an immigration judge (IJ). At the hearing, the petitioner testified to the facts recounted above. She also expressed a fear of gang violence should she be deported to Guatemala and stated, without corroboration, that in 2006 gang violence had taken the lives of two of her cousins. Finally, country conditions reports were introduced into evidence.

Following the hearing, the IJ found the petitioner's testimony credible but concluded that it did not substantiate a cognizable claim of past persecution. The IJ further found that the incidents described by the petitioner did not transpire on account of a statutorily protected ground and that the petitioner's fear of future persecution, though genuine, was not objectively reasonable. Consequently, the IJ rejected the petitioner's quest for asylum.

The IJ proceeded to deny withholding of removal because the petitioner had not shown that, upon her return, she would face a clear probability of danger to her life or liberty on account of a statutorily protected ground. Finally, the IJ rebuffed the CAT claim because the petitioner had provided no probative evidence that she would be tortured upon returning to her homeland.

The petitioner appealed. In affirming, the BIA adopted the IJ's findings and added that the petitioner had neither suffered past harm equivalent to persecution nor demonstrated a well-founded fear of future persecution. This timely petition for judicial review followed.

Because the BIA adopted the IJ's opinion as well as commenting separately, we review the two decisions as a unit. See Sok v. Mukasey, 526 F.3d 48, 52 (1st Cir.2008). Our assessment of them proceeds in light of the deferential substantial evidence rule. See Makhoul v. Ashcroft, 387 F.3d 75, 79 (1st Cir.2004). This means that, as long as the agency's findings of fact are "supported by reasonable, substantial, and probative evidence on the record considered as a whole," an inquiring court must honor them. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). In the absence of an error of law — and we discern none here — the court will grant a petition for review only if the record compels a conclusion contrary to that reached by the agency. See Pan v. Gonzales, 489 F.3d 80, 85 (1st Cir.2007).

There is a threshold issue here: the petitioner argues that the BIA did not adequately articulate a reasoned basis for its decision. In particular, she points to the BIA's separate comment, which she characterizes as comprising only a single "conclusory" sentence.

This argument is perplexing. The BIA's decision explicates its rationale (if succinctly). It references the petitioner's testimony about witnessing dead bodies along the roadside and notes that the incidents were not targeted at the petitioner. Furthermore, the decision specifically records the BIA's agreement with the IJ that the harm that the petitioner claims to have suffered in Guatemala does not "ris[e] to the level of `persecution'" and, in all events, lacks "a nexus to a protected ground." The decision also declares that trepidation about gang violence does not suffice to constitute a well-founded fear of future persecution. Relatedly, the BIA specifically endorses the IJ's conclusion that neither "be[ing] perceived as wealthy after having lived in the United States for many years" nor being "a good target for criminal acts" changes the outcome.

These statements, though brief, reveal the essence of the BIA's decisional calculus. No more is exigible: an agency's decision must illuminate the path of its reasoning, but it need not do so at great length or in exquisite detail.² See Albathani v. INS, 318 F.3d 365, 377 (1st Cir. 2003); Chen v. INS, 87 F.3d 5, 7-8 (1st Cir.1996).

Here, moreover, the BIA expressly adopted the IJ's findings and reasoning. Adoption is a permissible adjudicative practice for an appellate tribunal. See 8 C.F.R. § 1003.1(e)(4) (allowing affirmance by the BIA without opinion); Disu v. Ashcroft, 338 F.3d 13, 18 (1st Cir.2003) (rejecting due process challenge to affirmance without opinion). The BIA may "simply state that it affirms the IJ's decision for the reasons set forth in that decision." Chen, 87 F.3d at 8. It need not wax longiloquent merely to rephrase findings or reasoning of which it approves. Id.

Where adoption occurs, the IJ's decision must be considered as part of the BIA's decision. See Ru Xiu Chen v. Holder, 579 F.3d 73, 77 (1st Cir.2009); Matovu v. Holder, 577 F.3d 383, 386 (1st Cir.2009); López-Castro v. Holder, 577 F.3d 49, 52 (1st Cir.2009). Given the incorporation of the IJ's findings and reasoning, the BIA's decision in this case easily survives the petitioner's challenge.

Relatedly, the petitioner contends that the BIA committed reversible error by failing to mention country conditions in its decision. The law, however, does not obligate the agency to "dissect in minute detail every contention that a complaining party advances." Raza v. Gonzales, 484 F.3d 125, 128 (1st Cir.2007). Where, as here, the record shows that the agency, by means of either the BIA's statements or adoption of the IJ's decision, "thought about the evidence and the issues and reached a reasoned conclusion," the inquiry ends. Id.

At any rate, the country conditions reports do very little to substantiate the petitioner's claim of persecution. While they limn instances of violence and corruption in Guatemala, they do not, either directly or by reasonable implication, connect these foibles with the petitioner's particular situation. What we recently wrote in another case is pertinent here: "Without some specific, direct, and credible evidence relative to her own situation, there is an insufficient nexus between the petitioner and the general unrest depicted in the country conditions reports." Seng v. Holder, 584 F.3d 13, 19-20 (1st Cir. 2009); see also Amouri v. Holder, 572 F.3d 29, 35 (1st Cir.2009); Raza, 484 F.3d at 129.

We next examine the petitioner's substantive plaints, starting with her asylum claim. To qualify for asylum, an alien bears the burden of establishing that she is a "refugee" within the purview of 8 U.S.C. § 1158(b)(1). See Makhoul, 387 F.3d at 79; Laurent v. Ashcroft, 359 F.3d 59, 63 (1st Cir.2004). A refugee is a person unable or unwilling to return to her home country "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).

Persecution has both retrospective and prospective aspects. A showing of past persecution depends upon whether "the totality of a petitioner's experiences add up to more than mere discomfiture, unpleasantness, harassment, or unfair treatment." Nikijuluw v. Gonzales, 427 F.3d 115, 120 (1st Cir.2005). If accomplished, such a showing creates a rebuttable presumption that a well-founded fear of future persecution endures. Id. Absent past persecution, an alien may demonstrate the existence of a well-founded fear of future persecution by appropriate evidence, unassisted by any presumption. See Makhoul, 387 F.3d at 79; see also 8 C.F.R. § 208.13(b).

In immigration law, "persecution" is a term of art. It necessarily "implies some connection to government action or inaction." Nikijuluw, 427 F.3d at 120-21 (quoting Harutyunyan v. Gonzales, 421 F.3d 64, 68 (1st Cir.2005)). To make the requisite showing, an alien must pass both a subjective test (by showing that she genuinely fears persecution) and an objective test (by showing an objectively reasonable basis for that fear). See Laurent, 359 F.3d at 65. The latter test is satisfied "if a reasonable person in the petitioner's circumstances would fear persecution based on a statutorily protected ground." Nikijuluw, 427 F.3d at 122.

Applying these teachings, we first address the agency's determination that the petitioner did not suffer past persecution. In our view, this determination is supported by substantial evidence.

The linchpin of the petitioner's claim of past...