Rodriguez-Ramirez v. Ashcroft, 04-1589.

• Decision Date: 17 February 2005
• Docket Number: No. 04-1589.,04-1589.
• Citation: 398 F.3d 120
• Parties: Alexander RODRIGUEZ-RAMIREZ, Petitioner, v. John D. ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

398 F.3d 120

Alexander RODRIGUEZ-RAMIREZ, Petitioner, v. John D. ASHCROFT, Attorney General, Respondent.

No. 04-1589.

United States Court of Appeals, First Circuit.

Submitted December 16, 2004.

Decided February 17, 2005.

COPYRIGHT MATERIAL OMITTED

Robert M. Warren on brief for petitioner.

Peter D. Keisler, Assistant Attorney General, Civil Division, Terri J. Scadron, Assistant Director, Office of Immigration Litigation, and Anthony W. Norwood, Senior Litigation Counsel, Office of Immigration Litigation, on brief for respondent.

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

SELYA, Circuit Judge.

The petitioner, Alexander Rodriguez-Ramirez, seeks judicial review of a final order of the Board of Immigration Appeals (BIA) denying his application for asylum and withholding of removal. He asserts that the Immigration Judge (IJ) ignored the weight of the evidence and, therefore, incorrectly denied his asylum and withholding of removal claims. He further asserts that the BIA erred in not reversing the IJ's rulings. Discerning no error, we deny the petition.

The petitioner, a Guatemalan national, was born in San Sebastian, Guatemala, during the spring of 1984. When he was seventeen, he fled to the United States, allegedly because of his fear of violence in his homeland, and entered illegally. Shortly after his arrival, the Immigration and Naturalization Service (INS)¹ detained him and initiated removal proceedings.

At a hearing on July 31, 2002, the petitioner conceded removability and cross-applied for asylum and withholding of removal. On December 16, 2002, the IJ conducted a hearing on the merits of the petitioner's application. Testifying at that hearing, the petitioner described the two incidents upon which he premised his claims for asylum and withholding of removal. We paraphrase his description of those incidents.

The first incident occurred on the evening of April 25, 1990 (when the petitioner was six years old). At that time, he resided with his parents and siblings in San Sebastian. Two masked guerrillas sought to recruit his father into an insurgent movement that was attempting to overthrow the Guatemalan government. When the petitioner's father declined the invitation, the guerrillas assaulted him in the family's home. The petitioner hid under the bed as the violence unfolded and heard the guerrillas tell his father that they would return for him in two days.

As matters turned out, the guerrillas never returned. For aught that appears in the record, the described incident marked the first and last time that those particular guerrillas, or any other political insurgents, ever approached or threatened the petitioner's father. The petitioner himself was never menaced by the guerrillas at any time before, during, or after the incident.

The second incident occurred six years later (when the petitioner was twelve). He testified that, around that time, the army killed a number of innocent people in the region in which he lived, suspecting that they were supporting the guerrillas. While the petitioner did not actually witness any of the killings, he heard about them from his neighbors.

The petitioner alleged that, as a result of these incidents, he fears that he will become a target of the guerrillas' anti-government hostility should he return to his homeland or, alternatively, that the government will mistake him for a guerrilla (or one sympathetic to the guerrillas) and put him in harm's way.

In a bench decision, the IJ deemed the petitioner's testimony credible but determined that he was not entitled to asylum, withholding of removal, or the privilege of voluntary departure. On a first-tier appeal, the BIA summarily affirmed the IJ's decision. This timely petition for judicial review followed.

We turn directly to the petitioner's claim that the BIA erred in upholding the denial of his application for asylum. After all, a claim for withholding of removal places a more stringent burden of proof on an alien than does a counterpart claim for asylum. See Makhoul v. Ashcroft, 387 F.3d 75, 82 (1st Cir.2004); see also Da Silva v. Ashcroft, 394 F.3d 1, 4 n. 5 (1st Cir.2005) ("The threshold of eligibility for withholding of removal is higher than the threshold of eligibility for asylum.") (citing cases). Because of that disparity, the BIA's rejection of the petitioner's asylum claim, if sustainable, sounds the death knell for his counterpart claim for withholding of removal. Hence, we begin — and end — with the asylum claim.²

In immigration cases, a highly deferential standard of review obtains with respect to fact-driven issues. Putting aside errors of law — and none appears here — an inquiring court must uphold the BIA's resolution of such issues so long as its decision is supported by substantial evidence in the record. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); Da Silva, 394 F.3d at 4-5. This means that the BIA's determination must stand unless "any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B); accord Laurent v. Ashcroft, 359 F.3d 59, 64 (1st Cir.2004) (explaining that reversal requires that the evidence of record "point[] unerringly in the opposite direction").

In order to establish an entitlement to asylum, the petitioner must show that he is a refugee within the meaning of the immigration laws. See 8 U.S.C. § 1158(b)(1); 8 C.F.R. § 208.13(a). A refugee is a person who cannot or will not return to his country of nationality "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A). To be cognizable, persecution — whether past persecution (which creates a presumption of a well-founded fear of future persecution) or feared future persecution — must be on account of one of the five statutory grounds. Mukamusoni v. Ashcroft, 390 F.3d 110, 119 (1st Cir.2004); Makhoul, 387 F.3d at 79.

Here, the IJ (and, by extension, the BIA) found that the petitioner had failed to make out a meritorious case under either doctrinal strand. We concur in that assessment.

The argument on past persecution need not detain us. The petitioner contends that he suffered past persecution when, as a young boy, he witnessed guerrillas assaulting his father, and again, six years later, when the army began killing people suspected of insurgency. Both halves of this bifurcated contention lack force.

Although the boundaries of past persecution are somewhat flexible, they must encompass more than threats to life and freedom but less than mere harassment or annoyance. Aguilar-Solis v. INS, 168 F.3d 565, 569-70 (1st Cir.1999) (collecting cases). In this instance, neither of the two incidents described by the petitioner passes through the appropriate legal screen. We take each incident in turn.

As to the first incident, we acknowledge that watching one's father beaten may be a horrific experience for a young child — but not all horrific experiences translate into persecution. The assault was a single incident, remote in time. It was neither directed at the petitioner — he himself was never attacked (or even threatened, for that matter) — nor based on some characteristic that he and his father shared. Despite their braggadocio, the guerrillas never returned. And, finally, there were no discernible sequelae. Viewed against this backdrop, the IJ's (and the BIA's) determination that this isolated violence against a family member was insufficient to establish past persecution must stand. See Quevedo v. Ashcroft, 336 F.3d 39, 45 (1st Cir.2003) (stating that "a single incident of persecution, of a short duration ... not followed by acts of recrimination" was insufficient to establish past persecution).

The second incident is no more compelling. Although the army apparently undertook a spate of violent activities in the region in which the petitioner lived, that violence was confined to a particular temporal period (long since past). There is absolutely no proof that the petitioner or his family had done anything to earn the army's enmity, that they were perceived in that light, or that they were targets of this episodic violence (let alone victims of it). The fact that the family lived in an area that was, for a time, wracked by internecine warfare is not equivalent to...