Pablo-Sanchez v. Holder, 09-3301.

• Decision Date: 30 March 2010
• Docket Number: No. 09-3301.,09-3301.
• Parties: Santiago PABLO-SANCHEZ, Maria Consuelo Barrera-Nava, Fany Pablo-Barrera, Reyna Pablo-Barrera, Jorge Pablo-Barrera, Santiago Pablo-Barrera, Petitioners, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

600 F.3d 592

Santiago PABLO-SANCHEZ, Maria Consuelo Barrera-Nava, Fany Pablo-Barrera, Reyna Pablo-Barrera, Jorge Pablo-Barrera, Santiago Pablo-Barrera, Petitioners, v. Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 09-3301.

United States Court of Appeals, Sixth Circuit.

Argued: March 9, 2010.

Decided and Filed: March 30, 2010.

ARGUED: E. Dennis Muchnicki, Law Office, Dublin, Ohio, for Petitioners. Jeffrey R. Meyer, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF: E. Dennis Muchnicki, Law Office, Dublin, Ohio, for Petitioners. Jeffrey R. Meyer, United States Department of Justice, Washington, D.C., for Respondent.

Before GIBBONS, SUTTON and WHITE, Circuit Judges.

OPINION

SUTTON, Circuit Judge.

Santiago Pablo-Sanchez, his wife and four children, all natives and citizens of Mexico, ask us to review a decision of the Board of Immigration Appeals denying withholding of removal. Because the BIA permissibly determined that Pablo-Sanchez did not suffer mistreatment on account of his political opinions, we deny the petition.

I.

In 1994, Pablo-Sanchez, a well-to-do artist and business owner, campaigned as the Green Party candidate for a seat in Mexico's Congress. His campaign encountered stiff opposition from the then-incumbent PRI party. Hecklers, says Pablo-Sanchez, threatened him at his campaign rallies, and he received phone messages demanding that he "stop participating with this party or things will not go well for your family." A.R. 177. One of the hecklers, whom Pablo-Sanchez believes was affiliated with the PRI, had a distinctive voice, which Pablo-Sanchez described as "hoarse and deep . . . and strident." A.R. 179. Pablo-Sanchez lost the election and soon left the Green Party due to the harassment.

In March 1996, about a year and a half later, Pablo-Sanchez visited a bank. After he left the bank carrying a large amount of cash, muggers covered his face and assaulted and robbed him. As his assailants beat him, Pablo-Sanchez says he heard one of the muggers say in a familiar voice, the same one he remembered from the campaign trail, "is that what you wanted, huh, is that what you were asking for, you want more of this." A.R. 180-81. Later, in November of that year, Pablo-Sanchez was mugged and beaten a second time, again, according to his original application, after going to a bank, and again he heard "exactly the same voice" threaten him during the assault. A.R. 181. During roughly the same time period, a telephone caller with the familiar deep voice threatened Pablo-Sanchez and his family. Pablo-Sanchez reported the muggings and threatening phone calls to the police, but he had "little information for them," and they never caught the criminals. A.R. 264. The police did not investigate his claims, he believes, because he did not bribe them.

In April 1997, Pablo-Sanchez left Mexico and illegally entered the United States. His wife and children remained in Mexico while gathering resources to come to the United States, and they continued to receive threatening phone calls. Maria Consuelo Barrera-Nava, Pablo-Sanchez's wife, testified that the phone calls began to include details such as what she was wearing that day and what time she had arrived home, suggesting that the individuals responsible for the call were watching her home. Barrera-Nava described the telephone harasser as having "a hoarse voice but it was at the same time strident." A.R. 214. The harassment peaked when, after a telephone message promising a "visit," an intruder entered the family's home at night and raped Barrera-Nava. A.R. 214-15. When she reported the sexual assault to the police, they "laughed" and "lit a cigarette." A.R. 216. In January 1998, Barrera-Nava and the children illegally entered the United States, joining Pablo-Sanchez.

In January 2002, Pablo-Sanchez applied for asylum. He waited nearly five years to file his application, he says, because he could not find anyone bilingual until then. In his 2002 application, he enlisted the help of "Mr. Viatoro," who promised to be a "notario" versed in immigration law. A.R. 185, 202. Signed by Pablo-Sanchez alone, the application said nothing about political activity or persecution but instead said that "criminals" were responsible for the harassment. A.R. 447-49. At Viatoro's advice, Pablo-Sanchez says, he omitted any mention of politics. When interviewed by an asylum officer in July 2005, Pablo-Sanchez claimed not to have been involved in politics but instead said he fled from Mexico due to frequent criminal activity against business owners.

In June 2006, Pablo-Sanchez amended his asylum application, this time with the help of counsel. While his original application emphasized that he was on business when mugged and included no mention of the recognizable voice, his amended application described his political activities in detail and did not say that criminals targeted him due to his business interests.

In April 2007, Pablo-Sanchez and his family appeared before the IJ and testified consistently with the amended application, conceding removability, but asking for asylum, withholding of removal and protection under the Convention Against Torture. The IJ rejected the asylum application because Pablo-Sanchez had waited more than one year after entering the country to file it. See 8 U.S.C. § 1158(a)(2)(B). Because Pablo-Sanchez's hearing testimony and amended application differed so dramatically from his original application, the IJ found that Pablo-Sanchez was not a credible witness and denied withholding of removal on that ground. Alternatively, the IJ concluded that, even if Pablo-Sanchez's testimony had been credible, he was not entitled to withholding of removal because the alleged harassment was not "on account of" his political opinions. 8 U.S.C. § 1101(a)(42)(A); see id. §§ 1158(b)(1)(B), 1231(b)(3). As for the claim under the Convention Against Torture, the IJ ruled that Pablo-Sanchez had not proved that he or his family faced torture at the hands of, or with the acquiescence of, public officials.

Pablo-Sanchez appealed the IJ's decision to the Board of Immigration Appeals. Although the Board thought the IJ had erred in disbelieving Barrera-Nava's rape testimony, it affirmed his credibility determination as to Pablo-Sanchez, reasoning that the IJ had "not unreasonably" interpreted Pablo-Sanchez's inconsistent accounts. A.R. 5. It alternatively agreed with the IJ that, even assuming credibility, Pablo-Sanchez had not proved (1) that he and his family suffered past persecution on account of his politics, (2) that he and his family faced a likely threat to their lives and freedom upon return to Mexico on account of his politics, (3) that he could not avail himself of protection from the Mexican government and (4) that he and his family qualified for protection under the Torture Convention. Pablo-Sanchez timely seeks review of the Board's decision, challenging only the adverse credibility determination and the denial of withholding of removal.

II.

Because the Board "issued a separate opinion, rather than summarily affirming" and adopting the IJ's decision, we review the Board's decision "as the final agency determination." Khalili v. Holder, 557 F.3d 429, 435 (6th Cir.2009). We review agency factual findings, whether made by the Board or the IJ, under the deferential substantial-evidence standard, meaning that the findings are "conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B); see Khalili, 557 F.3d at 435; Ben Hamida v. Gonzales, 478 F.3d 734, 736 (6th Cir.2007) (factual findings include credibility determinations).

To qualify for withholding of removal, Pablo-Sanchez must demonstrate that he faces a "clear probability" of "persecution" based on his "race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1231(b)(3)(A); Kouljinski v. Keisler, 505 F.3d 534, 544 (6th Cir.2007). The "clear probability" standard asks more of the applicant than the "reasonable possibility" standard for obtaining asylum because it requires the applicant to show that "it is more likely than not" that his life or freedom would be threatened by persecution if he returned to his home country. Al-Ghorbani v. Holder, 585 F.3d 980, 993-94 (6th Cir.2009) (quotation marks omitted). An applicant who proves past persecution on account of his political opinion merits a presumption of a "well-founded fear of suffering future persecution." 8 C.F.R. § 208.13(b)(1). In this instance, Pablo-Sanchez challenges the BIA's resolution of his arguments about past persecution, arguing that the evidence established past persecution based on a protected ground and therefore entitled him to a presumption of future persecution.

Under these circumstances, to be eligible for relief or at least further inquiry on remand, Pablo-Sanchez must show that a reasonable adjudicator would be compelled to conclude that (1) his testimony was credible and (2) he suffered from past persecution based on his political opinions. If he fails on either point, his petition must be rejected.

Even if we accept Pablo-Sanchez's credibility for the sake of argument, he cannot show that the evidence compels us to conclude that his past mistreatment was on account of his political opinion. A petitioner must provide some evidence of his persecutor's motive, "direct or circumstantial." I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). "It is not enough to present evidence that the applicant had a political opinion. . . . Evidence must be presented which suggests that the applicant was persecuted on account of or because of the political opinion." Marku v. Ashcroft, 380 F.3d 982, 986 (6th Cir.2004).

The sole link between Pablo-Sanchez's political opinions and the assaults and threatening phone calls was a deep and strident voice he thought he recognized...