Molina-Estrada v. I.N.S.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation293 F.3d 1089
Docket NumberNo. 99-70216.,99-70216.
Decision Date13 February 2002

Lori R.E. Ploeger, Cooley Godward LLP, Palo Alto, CA, for the petitioner, and Giovanni Molina-Estrada, Florence, AZ, pro se petitioner.

Anh-Thu Mai and Robbin K. Blaya, Washington, DC, for the respondent.

Petition to Review a Decision of the Board of Immigration Appeals. INS No. A75-098-668.

Before SNEED, GRABER, and PAEZ, Circuit Judges.


GRABER, Circuit Judge.


The opinion filed February 13, 2002, is amended as follows:

On slip opinion page 2600, first full paragraph, replace the last two sentences, starting with "Even assuming" and ending with "attack took place," and footnote 1, with the following:

See Cruz-Navarro v. INS, 232 F.3d 1024, 1028-29 (9th Cir.2000) (stating that persecution occurring because a person is a member of the military is not persecution on account of a statutory ground); Grava v. INS, 205 F.3d 1177, 1181 (9th Cir.2000) ("[M]ilitary officials cannot claim political persecution arising solely from the performance of their duties."). Without any evidence that his father held a political opinion, Petitioner cannot establish that the guerillas imputed his father's alleged political opinion to him.

On slip opinion page 2601, first full paragraph, lines 2 and 6, replace the word "direct" before "evidence" with "compelling."

With these amendments, the panel has voted to deny the petition for panel rehearing. Judges Graber and Paez have voted to deny the petition for rehearing en banc, and Judge Sneed has so recommended.

The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on it.

The petition for panel rehearing and petition for rehearing en banc are DENIED.


Petitioner Giovanni Molina-Estrada asks us to decide whether the fact that he was 13 years old when he arrived in the United States in 1983 constitutes an "extraordinary circumstance" excusing his failure to file an application for asylum by the statutory deadline of April 1, 1998. We lack jurisdiction to decide that question. We also conclude that the Board of Immigration Appeals (BIA) correctly held that Petitioner was ineligible for cancellation of removal and conclude that substantial evidence supports the BIA's decision regarding the withholding of removal. Accordingly, we dismiss the petition in part and deny it in part.


Petitioner Giovanni Molina-Estrada and his mother, who were citizens of Guatemala, together entered the United States from Mexico without inspection on February 25, 1983. Petitioner was 13 years old at the time. He has remained in the United States since then.

About 15 years later, Petitioner was arrested in Reno, Nevada, for driving under the influence of intoxicants. Thereafter, in April of 1998, the Immigration and Naturalization Service issued a Notice to Appear for removal proceedings. On July 20, 1998, Petitioner filed an application for asylum. He also sought cancellation of removal and withholding of removal. Petitioner admitted that he was in the United States illegally.

At his removal hearing, Petitioner testified to the following relevant facts. In December 1982, he was injured, and his father and cousin were killed, when guerillas bombed his family's house in Guatemala. After the attack, Petitioner and his mother hid at his grandmother's house in another city in Guatemala. According to his testimony, Petitioner's father, a captain in the National Order, was a "very powerful" force against the guerillas. After his father's death, the guerillas made telephone calls to the home of Petitioner's sister, threatening the family. Petitioner also testified that similar calls were made to his grandmother's house. Petitioner stated that his uncles and cousins still lived in Guatemala and that, during a recent call, they had told him that conditions were still dangerous.

The immigration judge (IJ) denied Petitioner's applications for cancellation of removal, asylum, and withholding of removal. The IJ found, first, that Petitioner's mother is not a permanent legal resident of the United States, a citizen of the United States, or an otherwise "qualifying relative" under the cancellation-of-removal statutes; as a result, Petitioner could not qualify for cancellation of removal. Second the IJ denied Petitioner's application for asylum because it was untimely filed. Finally, the IJ reviewed Petitioner's application for withholding of removal and concluded that Petitioner had not presented evidence that he had been persecuted on account of any of the statutory reasons, that the armed conflict in Guatemala had ended, that peace accords had been signed, and that Petitioner did not face persecution upon return to Guatemala.

Petitioner appealed the IJ's decision to the BIA. The BIA dismissed the appeal, adopting, for the most part, the IJ's reasoning. Neither the IJ nor the BIA questioned Petitioner's credibility.


We lack jurisdiction to review the BIA's determination that no "extraordinary circumstances" excused Petitioner's untimely filing of his application for asylum. 8 U.S.C. § 1158(a)(3); Hakeem v. INS, 273 F.3d 812, 815 (2001); see also 8 U.S.C. § 1158(a)(2)(D)(excusing a late filing in "extraordinary circumstances"); 8 C.F.R. § 208.4(a)(5)(identifying events that qualify as "extraordinary circumstances").

We also lack jurisdiction to review a discretionary decision to deny cancellation of removal. 8 U.S.C. § 1252(a)(2)(B)(i); 8 U.S.C. § 1229b(b)(1). However, we have jurisdiction to review the BIA's legal determination that Petitioner is statutorily ineligible for cancellation of removal. Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1144-45 (9th Cir.2002).

We have jurisdiction over the petition to review the BIA's dismissal of Petitioner's withholding-of-removal claim. 8 U.S.C. § 1252(a).


We review for substantial evidence the BIA's decision whether to withhold removal. Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir.2001). We review de novo the BIA's resolution of "purely legal questions." Castillo-Perez v. INS, 212 F.3d 518, 523 (9th Cir.2000). Factual findings by the BIA are "conclusive" if "`supported by reasonable, substantial, and probative evidence on the record considered as a whole.'" Singh v. Ilchert, 63 F.3d 1501, 1506 n. 1 (9th Cir.1995) (quoting 8 U.S.C. § 1105a(a)(4), now repealed); see also Al-Harbi, 242 F.3d at 888. "To obtain reversal, petitioner must show that `the evidence not only supports that conclusion, but compels it.'" Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir.1997) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)); see also Al-Harbi, 242 F.3d at 888. Where, as here, the BIA has reviewed the IJ's decision and incorporated portions of it as its own, we treat the incorporated parts of the IJ's decision as the BIA's. Andriasian v. INS, 180 F.3d 1033, 1040 (9th Cir.1999); Gonzalez v. INS, 82 F.3d 903, 907 (9th Cir.1996).

A. Cancellation of Removal

To be eligible for cancellation of removal, an alien who has not been admitted lawfully for permanent residence in the United States must establish, among other factors, "that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence." 8 U.S.C. § 1229b(b)(1)(D)(emphasis added). Petitioner argued below that his removal would cause exceptional hardship to his mother who, he alleged, was a lawful permanent resident of the United States.

Petitioner presented no evidence of his mother's permanent-resident status. INS records showed that his mother was not a lawful permanent resident. The BIA therefore correctly concluded that, as a matter of law, Petitioner was ineligible for cancellation of removal.

B. Withholding of Removal

Title 8 U.S.C. § 1231(b)(3)(A) provides that an alien shall not be removed if "the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion." An alien may establish the requisite threat through testimony alone. 8 C.F.R. § 208.16(b). Moreover, in this context the past is prologue to the future:

If the applicant is determined to have suffered past persecution in the proposed country of removal on account of race, religion, nationality, membership in a particular social group, or political opinion, it shall be presumed that the applicant's life or freedom would be threatened in the future in the country of removal on the basis of the original claim.

8 C.F.R. § 208.16(b)(1)(i).

If the alien does not establish past persecution, however, the presumption of future persecution does not apply. Duarte de Guinac v. INS, 179 F.3d 1156, 1159 (9th Cir.1999) (citing 8 C.F.R. § 208.13(b)(1)(i)). Instead, the applicant must "show a good reason to fear future persecution by adducing credible, direct, and specific evidence in the record of facts that would support a reasonable fear of persecution." Id.

In this case, the IJ found, and the BIA agreed, that Petitioner's family had been attacked and that the attackers had targeted Petitioner's father because of his role in the National Order. But the IJ and the BIA also found that the attack was incident to general, ongoing civil conflict in Guatemala in 1982 and, for that reason, did not qualify as persecution "for any of the five statutory reasons."

The IJ also concluded, and the BIA agreed, that Petitioner had not established a reasonable fear of future persecution. Apparently...

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