Martinez v. Holder

• Decision Date: 04 November 2013
• Docket Number: No. 13–1337.,13–1337.
• Citation: 734 F.3d 105
• Parties: Eliseo Esteban MARTINEZ, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

734 F.3d 105

Eliseo Esteban MARTINEZ, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 13–1337.

United States Court of Appeals, First Circuit.

Nov. 4, 2013.

Timothy J. Nutter, on brief for petitioner.

Stuart F. Delery, Acting Assistant Attorney General, Civil Division, and Jamie M. Dowd, Senior Litigation Counsel, Office of Immigration Litigation, and Dana M. Camilleri, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, on brief for respondent.

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

RIPPLE, Circuit Judge.

Eliseo Esteban Martinez, a native and citizen of Guatemala, was refused entry into Canada from the United States. He was taken into United States custody, where he admitted to a Border Patrol agent that he was in the United States illegally to make money for his family. Mr. Martinez later sought relief under the Convention Against Torture (“CAT”), claiming that he was likely to be tortured by gang members if he were returned to Guatemala. At a hearing before an immigration judge (“IJ”), the Department of Homeland Security (“Department” or “DHS”) ¹ contested Mr. Martinez's claims. The IJ found that Mr. Martinez was not credible and, consequently, denied relief and ordered removal. The Board of Immigration Appeals (“BIA” or “Board”) dismissed his appeal.² Mr. Martinez now petitions for review of the decision of the Board.³ Because the administrative record does not require the conclusion that Mr. Martinez is credible and because the Board did not commit legal error in denying his request for relief under the CAT, we deny the petition for review.

IBACKGROUND

A. Mr. Martinez's Entry into Custody

On April 14, 2007, Mr. Martinez was traveling with others to a church conference in North Carolina from Massachusetts when the vehicle in which he was riding became lost. Traveling north on an interstate highway, rather than south, it came to the United States–Canadian border. The occupants were refused entry into Canada and, upon attempting to reenter the United States, were taken into United States custody. Mr. Martinez gave a sworn statement to a United States Immigration and Naturalization Service official on a Form I–877, in which he stated that he is a citizen of Guatemala who had entered the United States illegally by crossing the Mexican border in February 2002. He also admitted that he had attempted to enter the United States illegally three times before his most recent entry.⁴ Mr. Martinez explained that he had entered the United States to earn income for his family. Mr. Martinez did not sign his Form I–877.

In removal proceedings following his apprehension at the Canadian border, Mr. Martinez filed an application for withholding of removal on September 20, 2007. ⁵ An IJ held a hearing on Mr. Martinez's application on October 12, 2010. Mr. Martinez was represented by counsel at the hearing and was the only witness to testify. He ultimately presented two versions of the relevant events-one in his application and initial testimony before the IJ, and the other in testimony on redirect following cross-examination by the Department.

B. Mr. Martinez's Initial Account of Events

Mr. Martinez's application for relief under the CAT, signed under penalty of perjury, asked him to list each entry he had made into the United States. He listed only one entry, on February 2, 2002, which he had made by crossing the Mexican border near San Ysidro, California. Mr. Martinez claimed that he left Guatemala after having been threatened and attacked by gang members there. At trial, Mr. Martinez repeated that he had entered the United States in 2002. He stated that he had not returned to Guatemala after leaving that country in January 2002. Mr. Martinez also stated in his application that he had been arrested only once-for driving without a license in Massachusetts in 2004.

On his application and in his initial testimony, Mr. Martinez described a series of threats and attacks against him by gang members. He stated that the attacks had begun when he was waiting alone in a truck in Guatemala City in January 2001 while working as a loader for a potato farmer. Four heavily tattooed men with guns and knives had approached him and attempted to take the truck, but Mr. Martinez had resisted. The men then removed him from the truck and began beating him. They threatened that he either could give them the truck or join their criminal activities by becoming part of their gang, the Mara Salvatrucha (“MS–13”). After he refused, they beat him until he could not stand and then left him with a warning that they would return to hear his response.

Continuing his account, Mr. Martinez stated that, three days later, the same four men had attacked him while he was waiting alone in the truck in a parking lot near the potato warehouse where he worked in Guatemala City. When he again refused to join their gang, they beat him over the head with a pistol and threatened to kill him. The men kicked and beat him on the ground to the point that Mr. Martinez lost consciousness. When Mr. Martinez returned home, he discovered that the men had been there looking for him. His father falsely had claimed to the men that he did not know Mr. Martinez's location.

The next day, the four men approached Mr. Martinez while he was walking home from work. After he refused to join the gang, they beat and kicked him. They also instructed him to meet them in a nearby village, Aldea Ceresos, if he wanted to avoid further attacks. Mr. Martinez instead remained inside his home for three weeks out of fear.

Mr. Martinez then ventured out to a festival in a nearby village, Aldea Villanueva, with three friends.⁶ The four men located him in the crowd, pointed a gun at him and took him from the festival to a dump area where they began beating him once more. During the beating, one man cut Mr. Martinez's hand with a knife.⁷ Mr. Martinez threatened to report the men to the police, and they beat him until he lost consciousness. After a group of ten to fifteen people began approaching to see what was happening, the four men left. Mr. Martinez's friends then brought him to the San Marcos hospital where he spent two days recovering from his injuries. His hospital stay was in February 2001.

Mr. Martinez reported that he was afraid for his life after his hospitalization and remained inside his home for three months. During that time, the men asked for him at his home, but they were told he was not there. In May 2001, he ventured out to a marketplace with a friend, where the four men found him and pulled him from the crowd. One of the men pointed a gun at Mr. Martinez and the men beat him until a crowd began to notice them.

Two weeks later, in June 2001, the four men came to Mr. Martinez's home while his parents were away. They threatened to kill him or his family if he did not join them. Mr. Martinez filed a complaint with the police the day after this encounter. As evidence of this event, he submitted with his application a police report dated June 12, 2001, which noted that Mr. Martinez had received threats from MS–13 gang members while leaving work, that his right hand was injured and that the gang members had attempted to extort money from him. ⁸ In an affidavit attached to his application, Mr. Martinez reported that the police were unsuccessful in their attempts to question the perpetrators.

Three weeks after Mr. Martinez filed his police report, his father was robbed and beaten by members of the gang who had learned about the report. The men told Mr. Martinez's father that they would continue beating him and would kidnap other family members if Mr. Martinez did not join them. Following his father's advice, Mr. Martinez then decided to come to the United States. He left Guatemala “shortly thereafter.” ⁹

Mr. Martinez stated in his application that he had left Guatemala on January 5, 2002, and he had been warned that, if he returned to Guatemala, he would be killed. He testified that he finally was able to get into the United States in February 2002, where he remained until he was taken into custody in 2007. Mr. Martinez asserted that the police in Guatemala could not protect him from torture by the gang because the police lacked resources and capabilities. Mr. Martinez contended that the ability of the gangs in Guatemala to hurt him is evidenced by their past attacks on him.

In addition to the evidence submitted with his application and his own testimony before the IJ, Mr. Martinez offered a letter from his father dated January 27, 2009. In that letter, Mr. Martinez's father, Julian Esteban Chavez, stated that Mr. Martinez had been threatened and persecuted by members of the MS–13 gang. Mr. Chavez further stated that Mr. Martinez had left Guatemala in order to escape the gang and that returning there would threaten Mr. Martinez's safety.

C. Mr. Martinez's New Version of Events on Redirect

During cross-examination, DHS confronted Mr. Martinez with evidence that he had committed a motor vehicle violation, driving without a license, in September 2001. DHS asked Mr. Martinez how he could have a criminal record in the United States from 2001 if he first entered the country in February 2002. Mr. Martinez then admitted that he had been arrested for driving without authorization in 2001. When DHS again asked how he could have committed a motor vehicle violation in September 2001 if he first had entered the United States in 2002, Mr. Martinez stated that he had not understood the question.

During redirect from his attorney, Mr. Martinez offered a different account of events than the one he initially presented. He testified that he had entered the United States twice before February 2002. The first time, in December 2000, he entered the United States from Mexico but was apprehended by border patrol agents near the border and was sent back to Mexico. Mr. Martinez then remained briefly in Mexico before...