Reyes-Morales v. Gonzales

• Decision Date: 31 January 2006
• Docket Number: No. 05-1008.,05-1008.
• Citation: 435 F.3d 937
• Parties: Jose Luis REYES-MORALES, Petitioner, v. Alberto GONZALES,<SMALL><SUP>*</SUP></SMALL> Attorney General of the United States of America, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

435 F.3d 937

Jose Luis REYES-MORALES, Petitioner, v. Alberto GONZALES,^* Attorney General of the United States of America, Respondent.

No. 05-1008.

United States Court of Appeals, Eighth Circuit.

Submitted: November 18, 2005.

Filed: January 31, 2006.

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Robert A. Dildine, argued, Minneapolis, MN (Ralph J. Overholt, Minneapolis, on the brief), for appellant.

Luis E. Perez, argued, U.S. Department Of Justice, OIL, Washington, DC, for appellee.

Before WOLLMAN, LAY, and MELLOY, Circuit Judges.

LAY, Circuit Judge.

I. BACKGROUND

Jose Luis Reyes-Morales is a native and citizen of El Salvador. In January 1991, Reyes-Morales entered the United States and, on May 28, 1998, submitted an application for asylum with the Immigration and Naturalization Service ("INS"). In July 1999, the INS denied Reyes-Morales' asylum application and referred the matter to an immigration court. The INS commenced removal proceedings against Reyes-Morales by filing a notice to appear, charging Reyes-Morales as a removable alien present in the United States without being admitted or paroled under 8 U.S.C. § 1182(a)(6)(A)(i).

Reyes-Morales admitted to the allegations set forth in the notice to appear and conceded removability. However, Reyes-Morales contested his deportation from the United States, filing an application for asylum and moving for special rule cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act of 1997 ("NACARA"). NACARA § 203; Pub.L. No. 105-100, 111 Stat. 2160.

Shortly thereafter, the INS also filed a charging document alleging that Reyes-Morales was statutorily ineligible for special rule cancellation of removal under 8 U.S.C. § 1182(a)(2)(A)(i) because he was convicted of two crimes involving moral turpitude.

On July 1, 2003, an immigration judge ("IJ") ruled that Reyes-Morales was a removable alien, denied his application for asylum, and found him ineligible for special rule cancellation of removal under the NACARA. As to Reyes-Morales' NACARA claim, the IJ ruled that his past convictions for providing false information to police and gross misdemeanor stalking/harassment qualified as crimes involving moral turpitude, therefore barring the IJ from finding he possessed the requisite good moral character necessary to trigger eligibility under the NACARA.

Reyes-Morales subsequently appealed this decision to the Board of Immigration Appeals ("BIA"). The BIA denied Reyes-Morales' appeal, issuing a per curiam opinion affirming the IJ's decision. The BIA also added two points of substantive analysis supplementing the IJ's decision. Reyes-Morales' now files a petition for review of the BIA's order.

II. DISCUSSION

A. Reyes-Morales' Asylum-Based Claims

Reyes-Morales challenges a number of asylum-related rulings. First, he argues the IJ erred by rejecting his claim for asylum based on past persecution and a reasonable fear of future persecution under 8 U.S.C. § 1158(b)(1). Reyes-Morales next argues the BIA abused its discretion when it rejected his application for asylum based on the severity of his past persecution. See 8 C.F.R. § 1208.13(b)(1)(iii)(A). Third, Reyes-Morales argues the BIA committed error when it mistakenly referred to a critical regulation by the wrong section heading in its opinion. Finally, Reyes-Morales argues the IJ committed error when he failed to consider him eligible for asylum based on past persecution. We will address each claim in turn.

1. Asylum Based on Past Persecution and a Reasonable Fear of Future Persecution.

Reyes-Morales first challenges the denial of his application for asylum under 8 U.S.C. § 1158(b)(1). This court reviews the BIA's asylum eligibility rulings under the substantial evidence standard. S-Cheng v. Ashcroft, 380 F.3d 320, 323 (8th Cir.2004). We will only overturn the BIA's decision if "no reasonable fact-finder could arrive at the conclusion reached by the BIA." Id. Where the BIA adopts and affirms the decision of the IJ, we will review the IJ's opinion directly. Bernal-Rendon v. Gonzales, 419 F.3d 877, 880 (8th Cir.2005). In this case, the BIA affirmed and adopted the decision of the IJ on this issue. Therefore, we review the IJ's decision directly.

Under § 1158(b)(1), Reyes-Morales is eligible for asylum if he is a "refugee." A refugee is defined as an alien unwilling to return to his home country "because of [past] persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A). Proof of past persecution based on one of the enumerated bases listed under § 1101(a)(42)(A) gives rise to a presumption that Reyes-Morales also maintains a reasonable fear of future persecution. 8 C.F.R. § 208.13(b)(1). This presumption, in turn, places the burden on the government to demonstrate, by a preponderance of the evidence, that there has been a fundamental change in circumstances in El Salvador such that Reyes-Morales may no longer credibly claim a well-founded fear of future persecution. Id.; Gomez v. Gonzales, 425 F.3d 543, 546 (8th Cir.2005).

The IJ ruled that even if Reyes-Morales had established past persecution, the government discharged its burden of proof by showing that he did not maintain a reasonable fear of future persecution. In response, Reyes-Morales argues that a single State Department report cannot, as a matter of law, discharge the government's burden of proof. This case does not present such a narrow question. Instead, the IJ properly relied on the State Department report and the testimony of Reyes-Morales to conclude that Reyes-Morales does not have a reasonable fear of future persecution.

The IJ first recognized that general conditions in El Salvador have improved because there is no longer civil war. To support this conclusion, the IJ relied on a State Department Country Conditions Report, which noted that general conditions have improved in El Salvador since the signing of the 1992 peace accords. We recognize that Reyes-Morales' allegations of past persecution stemmed from heightened tensions between members of El Salvador's official military and guerilla fighters during the civil war. The State Department report therefore helps demonstrate that the general civil unrest which led to Reyes-Morales' abuse has abated. In this regard, the IJ properly considered the State Department report in reaching his conclusion. Our court has expressly held that a State Department report assessing country conditions may be used to rebut the presumption that an asylum-seeker has a reasonable fear of future persecution. Awale v. Ashcroft, 384 F.3d 527, 531 (8th Cir.2004).

The IJ also based his decision, in part, on the testimony of Reyes-Morales. Reyes-Morales testified that he did not fear government persecution in the event he was returned to El Salvador. Reyes-Morales also stated that he has not been actively recruited by members of the official military since he lived in El Salvador in 1982. We therefore rule that Reyes-Morales' testimony, together with the State Department Country Conditions Report, provide substantial record evidence to demonstrate that he did not have an objectively reasonable fear of future persecution. As such, the IJ properly found Reyes-Morales ineligible for asylum under § 1158(b)(1).

2. Asylum Based on the Severity of Past Persecution.

We next address Reyes-Morales' claim that the BIA abused its discretion when it failed to grant him relief based on the severity of his past persecution.¹ On review, we will not disturb the discretionary rulings of the BIA unless they are arbitrary and capricious. Maashio v. INS, 45 F.3d 1235, 1238 (8th Cir.1995).

Under 29 C.F.R. § 1208.13(b)(1)(iii)(A), or the "humanitarian grant of asylum" provision, the BIA has discretion to grant an applicant asylum so long as he can demonstrate "compelling reasons for being unwilling or unable to return to [his] county arising out of the severity of past persecution[.]" 29 C.F.R. § 1208.13(b)(1)(iii)(A). To qualify for relief under this provision, we have required petitioners to demonstrate abuse that is "particularly atrocious." Cigaran v. Heston, 159 F.3d 355, 357 (8th Cir.1998). Moreover, asylum based on past persecution is properly invoked only where the "past persecution is so severe that it would be inhumane to return the alien even in the absence of any risk of future persecution." Vaduva v. INS, 131 F.3d 689, 690 (7th Cir.1997). By contrast, courts have upheld the BIA's denial of asylum based on past persecution where the applicant was arrested, beaten, fired, and denied future employment. Rojas v. INS, 937 F.2d 186, 188 (5th Cir.1991).

We acknowledge that Reyes-Morales was beaten unconscious by members of the El Salvadorian military, leaving him with a physical deformity and several scars. Reyes-Morales' friend was also killed during this incident. However, the severity of this abuse, in addition to the circumstances surrounding it, do not place Reyes-Morales in the class of individuals entitled to this form of relief. Therefore, we rule that the BIA's exercise of discretion in this instance was not arbitrary or capricious and, as such, the BIA did not err when it found Reyes-Morales ineligible for relief based on past persecution.

3. Reyes-Morales' Remaining Asylum-Based Claims.

Reyes-Morales also contends the BIA committed error when it incorrectly referenced the humanitarian grant of asylum provision by the wrong regulation section in its opinion. Specifically, the BIA mistakenly cited 8 C.F.R. § 1208.13(b)(1)(iiii)(A) instead of correctly referencing § 1208.13(b)(1)(iii)(A). Although we acknowledge the BIA's clerical error, we note that the BIA applied the correct controlling language from § 1208.13(b)(1)(iii)(A) to support its analysis. Therefore, we rule that the BIA's error was purely ministerial and therefore harmless. See United States v. DeVore, 839 F.2d 1330,...