Ricardo F. Velasquez, Susana D. Granados-Urizar, Eluvia R. Granados-Urizar v. John Ashcroft, Attorney General of the United States
Docket: 01-1741
Court: Court of Appeals for the First Circuit; December 29, 2002; Federal Appellate Court
The case involves petitioners Ricardo Velásquez and his two adult daughters, who are natives of Guatemala and sought judicial review of a Board of Immigration Appeals (BIA) decision denying their asylum application and withholding of deportation. The petitioners entered the U.S. without inspection in September 1989 and were charged with removability. During a hearing in 1999, they conceded their removability and sought asylum due to past persecution linked to guerrilla violence in Guatemala.
The evidence showed that Velásquez's sister and brother-in-law were murdered by guerrillas in 1981 after refusing to assist them, and Velásquez received death threats thereafter. Despite these incidents, the family resided in Guatemala for eight years without further incidents, during which Velásquez served in the Civilian Defense Patrols against guerrillas and relocated to safer areas.
In 1989, they moved to the U.S., leaving some family members in Guatemala, who reportedly remained safe and in employment. The Immigration Judge (IJ) ultimately denied their asylum applications, stating that they failed to demonstrate past persecution or a credible fear of future persecution, though they were granted voluntary departure. The BIA upheld the IJ's decision, leading to the current appeal, which the court affirmed.
Findings of fact by the Board are reviewed under a "substantial evidence" standard, which requires that the Board's decision be upheld if supported by reasonable and probative evidence. The Board's determination regarding the ineligibility of petitioners for asylum cannot be reversed unless the evidence is so compelling that any reasonable adjudicator would be forced to conclude otherwise. The petitioners did not meet this threshold.
In initial proceedings, the burden of proof lies with the petitioners to establish eligibility for asylum by demonstrating either past persecution or a well-founded fear of persecution based on one of five protected grounds: race, religion, nationality, membership in a particular social group, or political opinion. The Immigration Judge (IJ) determined that the petitioners could not substantiate their claim of past persecution. The IJ found they failed to provide conclusive evidence of being targeted by guerrillas for any protected reason, instead noting that the evidence indicated widespread harm affecting many politically neutral Guatemalans.
The IJ also considered that the petitioners lived in Guatemala for eight years following the alleged persecution without interference, implying they did not change their political views or social status during that time. This led to the conclusion that their experiences were not unique and did not meet the criteria for persecution under the law.
In regard to establishing a well-founded fear of persecution, the petitioners could either present specific proof or rely on a presumption based on past persecution. Since they failed to demonstrate past persecution, they were not entitled to this presumption and needed to provide specific evidence to justify their fear of future persecution, which they did not do.
To establish a well-founded fear of future persecution, a petitioner must meet both objective and subjective tests. The subjective component requires a genuine fear of persecution, while the objective component necessitates credible, direct, and specific evidence demonstrating that such fear is reasonable. The Board of Immigration Appeals (BIA) typically assesses whether a reasonable person in similar circumstances would fear persecution. In this case, petitioners only presented evidence of past acts, and the Immigration Judge (IJ) found no evidence suggesting that they would face harm upon returning to Guatemala. In fact, evidence indicated that petitioners could live peacefully there, supported by the fact that many of their relatives have lived undisturbed in Guatemala for the past twenty years. The absence of evidence that guerrillas sought retribution against remaining family members further undermined the petitioners' claims. Consequently, the IJ's finding that petitioners did not demonstrate a reasonable fear of persecution was supported by substantial evidence.
The findings of the IJ and the BIA were affirmed, as petitioners failed to establish past persecution or a well-founded fear of future persecution. The court also noted that it lacks jurisdiction to review new claims for humanitarian asylum raised for the first time in a petition for review. Lastly, the government’s argument regarding the lack of jurisdiction to reinstate voluntary departure was rejected, leading to the reinstatement of the voluntary departure period granted by the BIA. Overall, the court affirmed the BIA's order and reinstated the voluntary departure period.
