Ontunez-Tursios v. Ashcroft

• Decision Date: 13 August 2002
• Docket Number: No. 00-60650.,00-60650.
• Citation: 303 F.3d 341
• Parties: Santiago Nahun ONTUNEZ-TURSIOS, Petitioner, v. John ASHCROFT, U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

303 F.3d 341

Santiago Nahun ONTUNEZ-TURSIOS, Petitioner, v. John ASHCROFT, U.S. Attorney General, Respondent.

No. 00-60650.

United States Court of Appeals, Fifth Circuit.

August 13, 2002.

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Michael Holley (argued), South Texas Pro Bono Asylum Representative Project, Harlingen, TX, for Petitioner.

John Clifford Cunningham (argued), Allen W. Hausman, Thomas Ward Hussey, Director, Emily Anne Radford, Asst. Director, A. Ashley Tabaddor, U.S. Dept. of Justice, Civil Div. Imm. Lit., Washington, DC, E.M. Trominski, Dist. Director, U.S. INS, Harlingen, TX, Caryl G. Thompson, U.S. INS, Attn: Joe A. Aguilar, New Orleans, LA, for Respondent.

Petition for Review Board of Immigration Appeals.

Before GARWOOD, WIENER and CLEMENT,¹ Circuit Judges.

GARWOOD, Circuit Judge:

Honduran citizen Santiago Nahun Ontunez-Turcios appeals the denial of his application for asylum and withholding of removal under section 241(b)(3) of the Immigration and Nationality Act ("Act") and the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("Convention"), arguing that his efforts as part of a Honduran land collective make him a "refugee." The immigration judge and Board of Immigration Appeals held that Ontunez's evidence only demonstrated that his land conflict was private and economic in nature, that any persecution of him was not shown to have been on account of his political opinion or membership in a particular social group, and therefore he was not entitled to asylum or withholding of removal. Because Ontunez has not presented evidence that compels the opposite result, we affirm.

Background

Honduran land reform laws under certain circumstances allow peasant farmers — "campesinos" — to gain ownership of land lacking a proper legal title by cultivating it as part of an agrarian reform plan. See Steven E. Hendrix, Property Law Innovation in Latin America With Recommendations, 18 B.C. INT'L & COMP.L.REV. 1, 38 (1995). Their efforts, however, are sometimes opposed by business or landowner interests with plans for private agricultural or other investment. When legal methods fail the campesinos, they sometimes occupy private agricultural land illegally and the government evicts them by such minimal force as is necessary. See United States Department of State, Honduras: Profile of Asylum Claims & Country Conditions, January 1999, at 5-6. Although Honduras has elected five presidents in a row through generally fair and democratic elections, the economic and official elite still possess "considerable impunity." See id. at 2; United States Department of State, Honduras Country Report on Human Rights Practices for 1998, at 1. Conditions in Honduras were vastly worsened in October 1998, when Hurricane Mitch devastated the country. From out of this difficult situation, Ontunez brings his request for asylum and withholding of removal.

The factual background of this case comes almost exclusively from Ontunez's own testimony, both at the hearing before the immigration judge and in his application for asylum. Ontunez testified that in April 1994, he moved to the city of La Ceiba on the northern Caribbean coast of Honduras with his live-in companion and his son. He worked as a mechanic and joined with other campesinos who wanted to cultivate an area in La Ceiba called Las Delicias. A woman in the town claimed to have title to Las Delicias through a document she had never registered; she executed a power of attorney in favor of the campesinos but refused to register her legal title because her husband had been murdered in 1965 and she feared reprisals against her son. Each family began cultivating an area of sixty by forty meters, and they created a cooperative called the Foundation for the Betterment of Las Delicias for the purpose of acquiring legal title to the land. Ontunez was "First Speaker" for the Foundation, which meant that he read the minutes at meetings and encouraged the other campesinos to remain united in the pursuit of their goal.

In 1996, a group of businessmen challenged the Foundation's right to the land. This group consisted of five local "landlords," including Eugenio "Henyo" Varela ("Varela") and Mario Melgar ("Melgar"). Ontunez alleges that Melgar is an attorney who represents Mario Facusse, the majority stockholder of a prominent Honduran business² and the nephew of Carlos Roberto Flores Facusse, President of Honduras since 1998.³ The landlords⁴ claimed they had legal title to Las Delicias and made plans to sell it to Korean investors.

In late 1996, the landlords threatened to drive the Foundation's members from Las Delicias. In 1997 a judge ordered Las Delicias cleared, apparently at Melgar's request, despite Ontunez's allegations that the landlords produced no evidence of title justifying the legal action. The police enforced the order by removing the campesinos from the land and completely destroying their homes, but the Foundation returned to Las Delicias and rebuilt. At around this time, Foundation treasurer Jesus Pascual was killed. While Ontunez blames the landlords, he admitted that there was no evidence of who committed the crime.

The landlords then obtained a "new order" of some kind and offered to settle the legal title issue with the campesinos for 1,000 lempiras per plot. The Foundation asked for a hearing before the mayor so that they could determine whether the landlords had any valid claim to the land justifying the payments. Mayor Marjorie Dik declined to hold the hearing. Ontunez alleges that while Dik had generally supported the Foundation because of its work building a school, she feared reprisals from Varela if she declared the land belonged to the cooperative. In his application for asylum, Ontunez intimated that Dik left office in 1998 because of this fear.⁵

In 1998, Gonsalo Rivera O'Campo was elected mayor of La Ceiba and the Foundation again pursued a hearing to negotiate the question of land title. The parties expected Governor Adalberto Giron Romero to attend the March 1998 meeting, but he ultimately refused. Ontunez alleges Giron abstained because he believed the landlords had no valid title, making the negotiations illegitimate. Ontunez also alleged his belief that Giron was subsequently removed from office by President Flores because of his support for the Foundation.⁶

After the proposed O'Campo hearing failed in March 1998, the Foundation and the landlords agreed to come together at a public meeting to discuss the offered settlement. The Foundation arrived first, and Ontunez began denouncing official corruption through an amplified microphone. At least four of the landlords⁷ arrived with Marcos Puerto ("Puerto") and two Honduran police in their company. When the men were about 25 meters away from Ontunez, Varela nodded to Puerto, who pulled out an AK-47 rifle and shot Foundation guard Juan Mejia. While Ontunez took cover, the landlord group returned to their car and left.

Dissatisfied with the La Ceiba police's investigation into the murder and concerned for their safety, Foundation members looked for Puerto themselves. In April, they received a tip that Puerto was located on the property of Mario Facusse in the city of San Pedro Sula. The Foundation told the Department of Criminal Investigations of his location, and the San Pedro Sula police arrested Puerto. Ontunez testified that the president of the Foundation, Rosa Mejia, told Ontunez that she had been present during Puerto's interrogation by the police and that Puerto had then admitted that the landlords hired him to assassinate Ontunez and another man, but that he shot Juan Mejia by mistake. Ontunez speculated that that error came from Puerto's misinterpretation of Varela's nod toward the Foundation members. Puerto was prosecuted for his crime, convicted, and incarcerated.

In October 1998, Ontunez went to the land title office in La Ceiba, where he met and confronted Melgar. Both men were apparently searching for title records for Las Delicias. Ontunez accused Melgar of being an accomplice to the death of Mejia, while Melgar apparently denied the allegation and claimed that he was afraid of the assassin as well. Ontunez's search of the land records turned up no registered title to Las Delicias. It was in this month that Hurricane Mitch hit Honduras and devastated the nation, destroying nearly everything in Las Delicias. Among the items destroyed were the Foundation's collection of public documents regarding the landlords. Ontunez testified that he had been to several cities gathering the criminal histories of the landlords and their employees as well as records of the complaints filed against them.

In April 1999, six months after the confrontation with Melgar, the landlords or those Ontunez thought to be acting for them came armed to Ontunez's home and threatened his life. Ontunez feared for his safety and fled to his brother's house in San Pedro Sula, leaving his family behind. By the end of July, Ontunez missed his family and returned to Las Delicias, despite his fear of being killed. When he returned, two of the landlords and their guards came to Ontunez's house with weapons and ordered him to leave town within one month and fifteen days or they would remove him from Las Delicias, either in "a good way or in a bad way."⁸ An unidentified young man was with them, who stared at Ontunez during the meeting. After they left, a neighbor told Ontunez that the young man had said "this deer will not escape me" or words to that effect. Ontunez took this as a death threat and described the young man as a paid assassin, but admitted that he had no direct knowledge of the young man's motive. At the urging of his mother, Ontunez left his family behind and fled Honduras. He first entered Guatemala legally, and then traveled to Mexico and crossed the Rio Grande river near Hidalgo, Texas. He was apprehended by the Border Patrol while...