Palma-Mazariegos v. Gonzales

• Decision Date: 28 October 2005
• Docket Number: No. 05-1330.,05-1330.
• Citation: 428 F.3d 30
• Parties: Efrain PALMA-MAZARIEGOS, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — First Circuit

428 F.3d 30

Efrain PALMA-MAZARIEGOS, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.

No. 05-1330.

United States Court of Appeals, First Circuit.

Submitted October 11, 2005.

Decided October 28, 2005.

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Stephen A. Lagana and Lagana & Associates on brief for petitioner.

Robert Clark Corrente, United States Attorney, and Stephanie S. Browne, Assistant United States Attorney, on brief for respondent.

Before BOUDIN, Chief Judge, SELYA and HOWARD, Circuit Judges.

SELYA, Circuit Judge.

The petitioner, Efrain Palma-Mazariegos, is a Guatemalan national. He seeks judicial review of a final order of the Board of Immigration Appeals (BIA) denying his application for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (CAT), maintaining that the immigration judge (IJ) and the BIA incorrectly found that changed country conditions in Guatemala eliminated any objectively reasonable fear of future prosecution should he be forced to return to his native land. We conclude that the record contains substantial evidence to support both (i) the determination that country conditions have changed and (ii) the BIA's holding that those changed conditions adequately rebut the petitioner's asserted fear of future persecution. Consequently, we deny the petition for review.

Certain background facts are matters of record. The petitioner entered the United States without proper documentation on December 15, 1991. He filed an application for asylum and withholding of removal with the Immigration and Naturalization Service (INS) a few months later.¹ Nothing happened.

After approximately eight years, the INS placed the petitioner in removal proceedings. The petitioner conceded removability and cross-applied for asylum, withholding of removal, and relief under CAT.

The IJ held an evidentiary hearing on October 6, 2003. Because he found the petitioner credible, we accept as true the petitioner's testimony about the historical facts. See Bocova v. Gonzales, 412 F.3d 257, 262 (1st Cir.2005).

The petitioner was born and raised in Guatemala — a country plagued for decades by civil strife. In 1991, the petitioner, then sixteen years of age, encountered an armed guerilla faction in the hills near his village. The guerillas attempted to recruit him into their ranks (this was a familiar tactic of the guerillas, who believed that young men were easily led). They threatened the lives of the petitioner and his family in the event that he resisted their blandishments.

The petitioner felt that he was trapped between a rock and a hard place. He had no desire to join the guerillas, but he knew of young men who had been killed when they rebuffed the guerillas' overtures. Rather than casting his lot with the guerillas or, alternatively, reporting the encounter to the government, the petitioner elected to flee. Within days, he and his five brothers left Guatemala for the United States, where he has resided ever since. Even though his parents and two sisters remain in the village in which he was raised, they have warned him not to return.

The petitioner also testified about his three uncles, all of whom died from gunshot wounds. One shooting occurred in 1974 (before the petitioner was born); the other two shootings occurred after the petitioner had fled the country. Although the petitioner speculated that the guerillas had committed all three murders, the record contains no supporting facts and the responsible parties have never been apprehended.

Moving from the past to the future, the petitioner stated that he fears that the guerillas will kill him if he returns to Guatemala. He premised this fear on the past actions of the guerillas, the warnings received from his family, and the prospect of retaliation because he had resisted the guerillas' efforts to enlist him in their cause.

The IJ denied the application for asylum, withholding of removal, and relief under CAT (although he did grant a request for voluntary departure). Without making any finding as to whether the petitioner had established past persecution, the IJ went directly to the issue of future persecution and concluded that the petitioner lacked a well-founded fear of future persecution because conditions in Guatemala had changed dramatically since 1991. The IJ based his conclusion largely on the United States Department of State Country Report on Human Rights Conditions for the Country of Guatemala for the year 2002 (the Country Conditions Report). Among other things, that report took the position that peace accords signed in 1996 had brought down the final curtain on the armed conflict between the Guatemalan government and the guerillas.

The petitioner prosecuted a timely appeal before the BIA. In it, he claimed that the IJ's rulings were arbitrary, capricious, and an abuse of discretion. On February 28, 2005, the BIA summarily affirmed the decision. This timeous petition for judicial review followed. We have jurisdiction under 8 U.S.C. § 1252(b).

When the BIA summarily affirms an IJ's decision, we "review directly the IJ's decision as if it were the decision of the BIA." Jupiter v. Ashcroft, 396 F.3d 487, 490 (1st Cir.2005). We must respect the IJ's findings as long as they are "supported by reasonable, substantial, and probative evidence on the record considered as a whole." INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Under this deferential "substantial evidence" standard, a determination will be upheld unless the record is such as to compel a reasonable factfinder to arrive at a contrary determination. See Da Silva v. Ashcroft, 394 F.3d 1, 4-5 (1st Cir.2005); see also 8 U.S.C. § 1252(b)(4)(B).

Against this backdrop, we turn to the petitioner's asylum claim. To qualify for asylum, an alien must establish that he is a refugee within the meaning of the Immigration and Nationality Act (the Act). See Negeya v. Gonzales, 417 F.3d 78, 82 (1st Cir.2005); see also 8 U.S.C. § 1158(b)(1). The Act defines a "refugee" as a person who is unable or unwilling to return to his country of nationality "because of persecution or a well-founded fear of future prosecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A). Thus, an asylum seeker must prove either past persecution based on one of these five enumerated grounds (thereby engendering a rebuttable presumption of future persecution) or a well-founded fear of future persecution. See Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120, 124 (1st Cir.2005).

When the IJ makes a finding of past persecution, a presumption of future persecution arises and the burden shifts to the government to rebut that presumption. See id. In such a situation, the government must show by a preponderance of the evidence either (i) that "[t]here has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution in the applicant's country of nationality" or (ii) that "the applicant could avoid future persecution by relocating to another part of the applicant's country, and . . . it would be reasonable to expect the applicant to do so." 8 C.F.R. § 208.13(b)(1)(i)(A)-(B); see Quevedo v. Ashcroft, 336 F.3d 39, 44 (1st Cir.2003).

If the IJ does not find past persecution, the asylum seeker must affirmatively demonstrate a well-founded fear of future persecution, unaided by any presumption. See Negeya, 417 F.3d at 82. Such a showing involves both subjective and objective components. Id. The first component entails a showing that the asylum seeker's fear of future persecution is genuine. Id. at 83. The second component entails a showing that this fear is objectively reasonable. Id.

In the case at hand, the IJ intentionally bypassed a key element of the analysis: a finding on the issue of past persecution. The IJ stated that:

Even if the Court were able to reach the conclusion that the respondent had suffered past persecution . . . [it] would be compelled to find that the circumstances have changed within the country of Guatemala such that the respondent no longer has a well-founded fear of future persecution.

The existence vel non of past persecution determines which party must carry the devoir of persuasion on the issue of future persecution. Compare, e.g., Quevedo, 336 F.3d at 42-43 (shifting the burden to the government to rebut a well-founded fear of persecution where the petitioner had shown past persecution), with, e.g., Zheng v. Gonzales, 416 F.3d 97, 99 (1st Cir.2005) (keeping the burden on the petitioner to establish future persecution without the aid of any presumption when the petitioner had failed to show past persecution). Consequently, it is sometimes risky business to make a determination on the issue of future persecution without first answering the logically antecedent question of whether past persecution has occurred. See, e.g., Zarouite v. Gonzales, 424 F.3d 60, 65 (1st Cir.2005) (remanding for further proceedings because the IJ had taken a shortcut and decided the issue of future persecution without first deciding the issue of past persecution).

Risky or not, such a shortcut often is permissible. In some cases — Zarouite is a good example — the issue of future persecution is close, so the allocation of the burden of proof matters. In other cases, however, the issue of future persecution is so clear-cut that the allocation of the burden of proof does not matter. See, e.g., Yatskin v. INS, 255 F.3d 5, 10 (1st Cir.2001). The instant case is of the latter genre; even if we were to assume, for arguments's sake, that the petitioner is able to establish past persecution and afford him the benefit of the ensuing presumption, we still would conclude that the government has provided enough evidence both to rebut the presumption and to show that there is no sufficient likelihood that ...