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Lemus-Arita v. Sessions

United States Court of Appeals, Eighth Circuit

April 17, 2017

Francisco Emanuel Lemus-Arita Petitioner
Jefferson B. Sessions, III, Attorney General of the United States Respondent

          Submitted: January 13, 2017

         Petition for Review of an Order of the Board of Immigration Appeals

          Before COLLOTON, GRUENDER, and KELLY, Circuit Judges. [1]

          GRUENDER, Circuit Judge.

         Francisco Lemus-Arita petitions for review of the Board of Immigration Appeals's ("BIA") decision affirming the immigration judge's ("IJ") denial of Lemus-Arita's requests for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT").[2] For the following reasons, we deny the petition.

         I. Background

         Lemus-Arita is a native and citizen of Guatemala. He initially entered the United States illegally in 2002 but returned to Guatemala in December of 2011 in anticipation of relocating there with his wife and son. After staying approximately one month, he decided to return to the United States and entered illegally near Brownsville, Texas on January 23, 2012. The Department of Homeland Security detained him and issued a notice to appear. Lemus-Arita conceded removability and filed an application for asylum, withholding of removal, and relief under the CAT.

         In a hearing before an IJ, Lemus-Arita testified that when he returned to Guatemala, he learned that his cousin Oscar had been killed in August 2011.[3] Oscar was rumored to have been involved in a kidnapping, and his murder was purportedly perpetrated by a vigilante group called the Anti-Secuestro (that is, "anti-kidnapping"). Lemus-Arita testified that his uncle began a rumor that Lemus-Arita had returned from the United States with money to avenge his cousin's death. Soon thereafter, family members relayed rumors to Lemus-Arita that the Anti-Secuestro group was looking for him and wanted to kill him. Lemus-Arita immediately abandoned his plans to establish a home in Guatemala and returned to the United States. Lemus-Arita conceded that these threats were never conveyed to him personally, that he never saw anyone from the Anti-Secuestro group, and that he was never harmed. Lemus-Arita did not report the threats to the police or the Guatemalan government because of rumors that police officers were members of the Anti-Secuestro group. Lemus-Arita's father made a police report, but no investigation resulted.

         Lemus-Arita's sister, Evelyn, testified that, after Lemus-Arita left Guatemala, she saw trucks in her village painted with the "mano dura" symbol, which identified a Guatemalan political party and which she associated with the people who purportedly killed Oscar (although she did not identify those individuals as members of the Anti-Secuestro group). Evelyn also testified that armed men in black clothing and ski masks who refused to identify themselves came to her house and told her that they were looking for Lemus-Arita and were going to kill him. She testified that they threatened her with harm if she did not reveal her brother's location, and they later watched the house and followed her for several days. Lemus-Arita also testified that Evelyn called him and told him that someone shot at her house. However, she was never harmed, and she did not report these incidents to the police. Evelyn testified that the family never confirmed why Oscar was killed and that she was unaware of whether Oscar had been accused of kidnapping.

         The IJ found Lemus-Arita's testimony credible, but he found Evelyn's testimony only partially credible because her statements were inconsistent and she had an asylum application of her own pending at the time. The IJ then found that Lemus-Arita did not qualify for asylum because he had not established that he had suffered past persecution or that he had a well-founded fear of future persecution. As a result, the IJ found that Lemus-Arita also had not carried his burden of establishing that he qualified for withholding of removal or relief under the CAT. In the alternative, the IJ found that Lemus-Arita had not demonstrated that any persecution would be at the hands of the Guatemalan government or a third party the government is unwilling or unable to control. The BIA affirmed the IJ's decision.

         Lemus-Arita petitions for review. The BIA's decision was the final agency decision, see 8 U.S.C. § 1101(a)(47)(B)(i), and we have jurisdiction to consider the appeal under 8 U.S.C. § 1252(a)(5).

         II. Discussion

         "We review the BIA's decision, as it is the final agency action, but to the extent that the BIA adopted the findings or reasoning of the IJ, we also review the IJ's decision as part of the final agency action." Gutierrez-Vidal v. Holder, 709 F.3d 728, 731-32 (8th Cir. 2013) (quotation omitted). We review legal determinations de novo, Agha v. Holder, 743 F.3d 609, 614 (8th Cir. 2014), and accept the agency's factual findings "unless any reasonable adjudicator would be compelled to conclude to the contrary, " Fofana v. Holder, 704 F.3d 554, 557 (8th Cir. 2013). Further, we review "decisions on asylum, withholding of removal, and CAT protection under the substantial evidence standard, upholding the decision if it is supported by reasonable, substantial, and probative evidence based on the record as a whole." Id. (quotation omitted).

         Lemus-Arita initially contends that the BIA applied the wrong standard of review to the IJ's finding that Lemus-Arita had not demonstrated an objectively reasonable fear of future persecution and that this issue alone requires remand. The BIA reviews factual findings for clear error and all other matters de novo. 8 C.F.R. § 1003.1(d)(3)(i), (ii). "[W]hether an asylum applicant has established an objectively reasonable fear of [future] persecution . . . is a legal determination that remains subject to de novo review." Matter of Z-Z-O, Respondent, 26 I. & N. Dec. 586, 590-91 (BIA 2015). Lemus-Arita argues that the BIA reviewed this finding for clear error, but he relies on a strained interpretation of the BIA's decision. The BIA explained that it "review[ed] the Immigration Judge's factual findings for clear error and all other issues de novo." After summarizing the IJ's findings, including those with respect to the objective reasonableness of Lemus-Arita's fear of future persecution, the BIA concluded "[w]e see no clear error of fact or mistake of law in the Immigration Judge's assessment." Lemus-Arita contends that the BIA's wording leaves "no question" that the BIA reviewed for clear error the IJ's finding that Lemus-Arita's fear of future persecution was objectively unreasonable. We disagree. The phrase "clear error" modifies ...

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