Mazariegos v. Office of the U.S. Attorney General

• Decision Date: 12 February 2001
• Docket Number: No. 99-4410,99-4410
• Citation: 241 F.3d 1320
• Parties: (11th Cir. 2001) Anibal S. MAZARIEGOS, Petitioner, v. OFFICE OF THE U.S. ATTORNEY GENERAL, Immigration and Naturalization Service, Respondents.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1320

241 F.3d 1320 (11th Cir. 2001)

Anibal S. MAZARIEGOS, Petitioner, v. OFFICE OF THE U.S. ATTORNEY GENERAL, Immigration and Naturalization Service, Respondents.

No. 99-4410.

United States Court of Appeals, Eleventh Circuit.

Feb. 12, 2001.

Feb. 22, 2001.

Petition for Review of an Order of the Board of Immigration Appeals.

Before EDMONDSON and MARCUS, Circuit Judges, and RESTANI^*, Judge.

MARCUS, Circuit Judge:

This is a petition for review of a decision by the Board of Immigration Appeals ("BIA") of the Immigration and Naturalization Service ("INS"). Petitioner Anibal Mazariegos is a Guatemalan citizen who applied for asylum in the United States on the ground that he has a well-founded fear of persecution due to his political beliefs. Specifically, Mazariegos contends that he has been persecuted, and fears he will be again, by Guatemalan guerrillas who allegedly targeted him for his service in the Guatemalan army during that country's civil war. The BIA rejected Mazariegos's application, finding that he could not show that he was subject to persecution on account of his political opinions as opposed to merely his service in the army. The BIA also found that Mazariegos does not have a well-founded fear of persecution throughout the entire country of Guatemala. Because there is substantial evidence supporting the BIA's finding that Mazariegos does not face a threat of persecution country-wide, we reject his petition for review and affirm the BIA's decision.

I.

Mazariegos is a Guatemalan citizen who entered the United States on November 29, 1994 without formal admission or parole. There is no record evidence regarding his activities between November 1994 and April 1997. On April 18, 1997, Mazariegos applied to the INS for asylum and withholding of removal, asserting that if he were returned to Guatemala he would be persecuted by guerrillas retaliating against him for his service in the Guatemalan army. The INS, in turn, initiated removal proceedings against Mazariegos on July 8, 1997.

At an evidentiary hearing before an Immigration Judge ("IJ"), Mazariegos testified that he served in the Guatemalan Armed Forces between 1989 and 1992 as a "soldier first class." The IJ described this position as a "low-level role," although Mazariegos said that he supervised two soldiers in the chain of command. Service in the Guatemalan military was obligatory. Mazariegos left the army after being honorably discharged in February 1992.

During his service, Mazariegos was in combat against guerrilla forces fighting the Guatemalan government as part of that country's 36-year civil war. Mazariegos testified that a month after his discharge "about six" men who he did not know, but recognized to be guerrillas from a group called Unidad Revolucionario Nacional Guatemala ("URNG"), forced entry into his parents' home in a rural area of Guatemala at a time when he was alone. The guerrillas were dressed in green uniforms and carried weapons. Mazariegos said that the men beat him, causing a laceration to his head requiring eleven stitches as well as a broken nose and fractures to both kneecaps. Mazariegos said that the guerrillas told him that he "had to leave, and they would give me an opportunity to leave within a year and a half. And, if I didn't do that they would not only kill me but they would kill my parents also." Mazariegos also said that the guerrillas told him they were attacking him because he "had been involved in military service." When asked by counsel why the guerrillas might have singled him out, Mazariegos said that he, presumably unlike others, "followed the orders that I was given by the officers in my zone."

Mazariegos said that he did not report this incident to the police. Instead, he reported it to his former military commanders, who according to Mazariegos told him that they could not protect him because he was no longer in the commanders' zone. Mazariegos said that some six months after the incident the guerrillas again came to his parents' house looking for him. It appears that the guerrillas may have threatened him or his parents on one or more occasions.

Despite these threats, Mazariegos did not leave the area where the incident occurred. Instead, he was able to avoid any further direct contact with the guerrillas by alternately staying at a friend's house and staying with his family. Mazariegos testified that he believed the guerrillas would seek him out and kill him were he to return to Guatemala. When asked why he never tried to relocate to a city or even another rural area in Guatemala, Mazariegos replied: "Well, it's that they, one way or another, are going to seek you out and find where you happen to be." Mazariegos said that his father, who remains in Guatemala, wrote to him that the guerrillas "receive much of their strength from Chiapas [in southern Mexico] ... he says that that's where they have the bulk of their strength from."

A February 1997 U.S. State Department report on human rights conditions in Guatemala during 1996, which was introduced into the administrative record, advised that "[p]eace talks between the Government and [URNG] resulted in a negotiated end of the 36 year long civil war, with a final peace accord signed in December. Guerrilla groups unilaterally ceased offensive actions in March [1996], and government forces immediately responded by halting counterinsurgency patrols." Notwithstanding the report, Mazariegos testified that he believed the peace accord was not for the group with which he had problems.

Based on the foregoing evidence, on October 10, 1997, the IJ denied Mazariegos's requests for asylum and withholding of removal, and granted the INS's request that Mazariegos be found removable to Guatemala. The IJ found that Mazariegos had failed to establish that he was a "refugee" within the meaning of the Immigration and Naturalization Act ("INA"), 8 U.S.C. 1101, et seq. Specifically, the IJ found that Mazariegos "really has not provided his native country an opportunity to protect him from this group." The IJ noted that Mazariegos failed to report his assault to the police, and did not attempt to relocate to a more urban area "where he could seek the protection of the police." Thus, the IJ concluded that Mazariegos had failed to establish a well-founded fear of persecution because he offered "no evidence to indicate that the threat in this particular case exists against him countrywide other than his own statements." The IJ added that "[i]n light of [Mazariegos's] low-level role in the army the Court finds that it's not plausible to believe that the threat exists against him on a countrywide basis in Guatemala." The IJ also highlighted the State Department report, observing that it indicated a "final peace accord" in Guatemala as of December 1996 and hence "there is little likelihood of [Mazariegos] facing persecution if he were to return" to Guatemala.

Mazariegos appealed the denial of his asylum request to the BIA. In conjunction with his appeal, Mazariegos submitted "new evidence" consisting of proof that guerrillas killed his brother, Felix Mazariegos, in March 1998. Mazariegos describes that incident as a case of mistaken identity.

On February 24, 1999, the BIA unanimously rejected the appeal and affirmed the IJ's rulings. The BIA made two key determinations. Like the IJ, it found that Mazariegos had not shown that the alleged threat of persecution exists throughout Guatemala. It explained that "Mazariegos has not provided any convincing evidence to suggest that his fear of danger would exist throughout Guatemala. In order to demonstrate a well-founded fear of persecution, an alien must demonstrate that the threat of persecution exists for him country-wide." The BIA also found that Mazariegos had not shown that he was persecuted on account of his "political opinion" or any of the other factors required by the INA to be eligible for asylum. The BIA explained that "an alien must do more than merely show that he was physically harmed or that his civil or human rights were violated; he must provide evidence that he was mistreated because of his political opinion, or one of the other grounds, rather than for some other reason." The BIA remarked that Mazariegos's request for asylum did not fail for lack of corroboration; it emphasized, however, that even "[a]ssuming the truth of his claim, it appears that the harm which [Mazariegos] fears from the guerrillas if he is returned to Guatemala is on account of his service in the military.... [Mazariegos] has failed to submit adequate evidence from which we could reasonably surmise that the guerrillas' interest in him relates to any of the enumerated grounds." In reaching these conclusions, the BIA took into account the new evidence submitted to it by Mazariegos.

Mazariegos timely requested review of the BIA's decision by this Court, and also moved this Court to stay the removal order. We granted the stay on May 7, 1999. There is no dispute about our jurisdiction to hear this appeal.

II.

The appropriate standard of review is well-settled. The BIA's factual determination that Mazariegos is removable and not entitled to asylum must be upheld if it is supported by substantial evidence. See, e.g., INS v. Elias- Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 815, 117 L.Ed.2d 38 (1992); Perlera- Escobar v. Executive Office for Immigration, 894 F.2d 1292, 1296 (11th Cir.1990) (per curiam) ("[a] factual determination by the BIA that an alien is statutorily ineligible for asylum or withholding is reviewed under the substantial evidence test"); cf. 8 U.S.C. 1252(b)(4)(B) (administrative findings of fact supporting order of removal "are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary"). We have described the substantial evidence test as "deferential," and have emphasized we may not "re-weigh the evidence" from scratch. Lorisme v. INS, 129 F.3d 1441, 1444-45 (11th Cir.1997)....