Sanic v. Holder, 082009 FED6, 08-4006

Docket Nº08-4006
Party NameJOSE COJOM SANIC, Petitioner, v. ERIC H. HOLDER, JR., Attorney General of the United States, Respondent.
Case DateAugust 20, 2009
CourtUnited States Courts of Appeals, United States Court of Appeals (6th Circuit)

JOSE COJOM SANIC, Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General of the United States, Respondent.

No. 08-4006

United States Court of Appeals, Sixth Circuit

August 20, 2009

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 09a0589n.06

PETITION FOR REVIEW OF ORDER OF BOARD OF IMMIGRATION APPEALS

BEFORE: KEITH, COLE, and WHITE, Circuit Judges.

KEITH, Circuit Judge.

Petitioner Jose Sanic ("Sanic") seeks this Court's review of an order from the Board of Immigration Appeals ("BIA"), denying his application for asylum, withholding of removal, protection under the Convention Against Torture, and cancellation of removal. For the following reasons, we DISMISS the petition for review, in part, and DENY it, in part, and AFFIRM the BIA's decision.

I. A. Procedural Summary

On December 20, 1992, Petitioner Jose Sanic ("Sanic") applied for asylum, pursuant to 8 U.S.C. § 1158(b)(1), and withholding of removal, pursuant to 8 U.S.C. § 1231(b)(3). He also applied for Suspension of Deportation or Special Rule Cancellation of Removal under section 203 of the Nicaraguan and Central American Relief Act ("NACARA") of 1997 ("Special Rule Cancellation").1 Sanic was denied Special Rule Cancellation, and the matter was referred to an immigration judge ("IJ") in accordance with 8 C.F.R. § 240.70.

On August 7, 2006, the Department of Homeland Security served Sanic with a Notice to Appear ("Notice"), charging him with removability under 8 U.S.C. § 1182(a)(6)(A)(i). On October 3, 2006, Sanic appeared before the IJ and admitted the factual allegations in the Notice and conceded his removability. That same date, Sanic indicated that he wished to renew his request for asylum and that he would seek cancellation of removal under 8 U.S.C. § 1229b(b)(1). On February 28, 2007, Sanic filed his application for cancellation of removal with the immigration court.

Sanic's merits hearing was held on September 25, 2007 in Memphis, Tennessee. He was the only testifying witness, and spoke before the IJ with the help of a Spanish interpreter. He also submitted a list of exhibits, including a declaration from Frank O. Mora, Ph.D., an academic with expertise in Latin American politics and society.

An oral decision was rendered the day of the hearing. The IJ denied Sanic's applications for asylum, withholding of removal, cancellation of removal, and voluntary departure on the merits while finding that Sanic was not eligible to apply for CAT relief because of the age of his asylum application. Sanic appealed the IJ's decision and the BIA dismissed the appeal in an order and opinion dated July 22, 2008. The instant petition for review timely followed on August 14, 2008.

B. Removal Proceeding

Sanic is a native and citizen of Guatemala and of Quiche descent.2 He resided with his family in Almolonga, Quezaltenango, Guatemala. Sanic came to the United States in June 1990 as a thirteen-year-old during the civil war between the Guatemalan government and a national guerrilla movement.

According to Sanic's testimony, found credible by the IJ, several guerrilla members broke into Sanic's family's home in Guatemala one night during late May of 1990. The guerrillas informed Sanic's father that they wanted to take Sanic and his two brothers to join their rebel forces. Sanic's father refused to let his children go, telling the guerrillas that he did not believe in their cause and that he sided with the government in the civil war. In response, the guerrillas beat Sanic's father with their hands and various unidentified weapons that they carried. Sanic stated he was also "beaten some" during the encounter but that his mother "received most of the beats up (sic)" while she protected him. Sanic further stated the beating his mother received was "not much." Id. The guerrillas were in the home for a total of eight to ten minutes before fleeing.

Shortly after this incident, Sanic's father decided to send Sanic and his brothers to the United States out of concern for their safety. Sanic entered the United States illegally on June 20, 1990. His father, as well as his sister, continued to live in Guatemala as of the date of Sanic's immigration hearing.

The 2005 United States Department of State Country Report on Human Rights Practices in Guatemala ("State Department Report"), included as part of the administrative record, indicated the civil war between the government and the guerrillas ended in 1996 when a formal peace accord was signed. Sanic, however, alleged the fighting continues based on reports from his father. Accordingly, Sanic feared returning to Guatemala out of concern that the guerrillas would seek to harm or kill him in retribution for his prior refusal to join their cause.

Sanic claimed that former guerrillas visited his father in 1998, and warned him that Sanic and his brothers would be killed if they returned to Guatemala. Sanic testified that guerrillas still operate across all of Guatemala and thus he could not safely relocate to another part of the country if he were removed from the United States. Sanic did not claim that his family members living in Guatemala have been harmed by guerrillas since the May 1990 incident. Sanic's father told him, however, that one individual who returned to Guatemala in 2006 was kidnaped and never reappeared. The circumstances surrounding the alleged kidnaping are not contained in the record.

The declaration from Dr. Mora alleged that "irregular forces, such as former Guatemalan guerrillas engaged in political and criminal activities exercise near absolute control in the more remote areas of the country." He further suggested that Sanic's social status and former residency in the remote area of Quetzaltenango would likely lead to "continued harassment, intimidation, and violence that he experienced before leaving the country." According to Dr. Mora, "[i]n small rural communities where . . . the effectiveness of law enforcement agencies is dismal, the repression or murder of past victims of human right violations" may occur.

The State Department Report acknowledged the existence of widespread "societal violence" in Guatemala and specifically attributed hundreds of killings and other crimes to "non-state actors with links to organized crime, gangs, private security companies, and alleged 'clandestine groups.'" The State Department Report, however, did not indicate that these acts of violence were committed for political reasons. Furthermore, the document noted the absence of reports of politically motivated disappearances in Guatemala as well as politically motivated killings by the government and its agents.

Sanic has remained in the United States and has not returned to Guatemala since he left in 1990. He is married and has two daughters, who are both United States citizens. The family resides in Cookeville, Tennessee where Sanic works as a machine operator in a sofa assembly facility. His wife is a Mexican national without legal status in the United States. The elder daughter, Jazlinn Cojom ("Jazlinn"), was born in the United States on June 10, 2002. The younger daughter, Nicole Cojom ("Nicole"), was also born in the United States on February 2, 2006. Id. Sanic indicated that if he were returned to Guatemala, he would not take his children with him for safety reasons due to the alleged threat from guerrillas. He also complained of limited economic opportunity for himself and educational opportunities for his children.

C. The IJ's Decision

The IJ found Sanic to be a credible witness but determined that he failed to present sufficient objective evidence to establish past persecution or a "well-founded fear" of future persecution. Specifically, the IJ found that the single incident in 1990 "when guerrillas came to [Sanic's] house one night for 8 to 10 minutes, and beat his father and pushed around his mother while respondent was being protected by his mother from injury" did not constitute "persecution" under 8 U.S.C. § 1101(a)(42)(A). The IJ also held that Sanic did not demonstrate a "well-founded fear of persecution" given that the civil war in Guatemala had ended and the guerrillas were "no longer in the business of recruiting people to join their ranks." In addition, the IJ determined that Sanic's claim to be a member of a social group consisting of returning Guatemalans did not warrant asylum relief because the violence in Guatemala appeared to be pervasive and not directed at any particular socioeconomic group. The IJ further found that Sanic had not shown that his Quiche ethnic identity would subject him to persecution. Finally, the IJ determined that Sanic had not demonstrated a country-wide threat of persecution. For these reasons, Sanic's asylum application was denied, as was his application for withholding of removal under the more stringent "clear probability of persecution" standard.

The IJ also denied Sanic's application for cancellation of removal because he found that Sanic failed to establish that his removal would result in "exceptional and extremely unusual hardship" to his daughters. In reaching this conclusion, the IJ noted that both his children were healthy and did not have special needs in school. The IJ emphasized that the children were of "tender years" and that Spanish was the language spoken at home. The IJ further found that although Sanic's daughters would likely receive "diminished educational opportunities" in Guatemala, they still would not suffer "exceptional and extremely unusual hardship" under BIA precedent because they would not be completely deprived of an education.

The IJ ruled that Sanic was not eligible for CAT relief because of the age of his asylum application. Finally, the IJ denied Sanic's application for voluntary departure because of his inability to pay for his way out of the United States.

D. The BIA's Decision

At the outset of its July 22, 2008 opinion and order, the BIA dismissed Sanic's appeal with respect to...

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