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Hernandez-Lima v. Lynch

United States Court of Appeals, First Circuit

September 7, 2016

RONALDO HERNANDEZ-LIMA, Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States, Respondent.

         PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

         Kevin MacMurray and MacMurray & Associates on brief for petitioner.

          D. Nicholas Harling, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, and Anthony P. Nicastro, Acting Assistant Director, Office of Immigration Litigation, on brief for respondent.

          Before Howard, Chief Judge, Lynch and Barron, Circuit Judges.

          LYNCH, Circuit Judge.

         Ronaldo Hernandez-Lima petitions for review of the Board of Immigration Appeals' ("BIA") decision to dismiss his appeal of an immigration judge's ("IJ") denial of his application for withholding of removal. Hernandez-Lima argued that he suffered past persecution and faced a clear probability of future persecution in Guatemala through threats, violence, and extortion on account of both his political opinion and his membership in a particular social group. He defined his political opinion with reference to his participation in the Democratic Christian Party's ("DCP") campaign around 1998 or 1999, and he defined his particular social group as "members of a family who were persecuted by gang members." The BIA declared him ineligible for withholding of removal, finding that he failed to establish that any harm he had suffered or would likely suffer in the future was both (1) severe enough to constitute persecution and (2) related to a statutorily protected ground.

         Hernandez-Lima now argues that the record evidence would have compelled a reasonable factfinder to reach a contrary conclusion. We deny his petition.

         I.

         Hernandez-Lima is a native and citizen of Guatemala. On or about November 13, 2004, he was admitted to the United States pursuant to a B-2 tourist visa authorizing him to remain in the country until May 12, 2005. However, he overstayed this authorization, and on January 4, 2011, the Department of Homeland Security served him with a Notice to Appear, charging him with removability pursuant to 8 U.S.C. § 1227(a)(1)(B).[1]

         In pleadings submitted on February 22, 2011 and April 7, 2011, Hernandez-Lima indicated his intent to apply for asylum, withholding of removal, protection under the Convention Against Torture ("CAT"), and, in the alternative, voluntary departure. He ultimately did not apply for asylum, but on December 10, 2013, the IJ entertained Hernandez-Lima's other three applications for relief at a hearing during which he testified. The following summarizes the record evidence derived from that testimony and the ensuing proceedings.

         Around 1998 or 1999, when Hernandez-Lima was a high school student in Guatemala, he participated in the DCP's campaign by attending meetings and putting up posters. After an opposing party prevailed in the elections, its members began sending threatening messages, through third parties, to DCP members. Specifically, Hernandez-Lima was told that members of the opposing party had said they were going to kill him for supporting the DCP. Hernandez-Lima's father received similar messages during his many years of work for the municipality, but they never materialized into physical harm. The messages Hernandez-Lima received never materialized into physical harm either. Hernandez-Lima cites these "political problems" as the reason he left Guatemala for the United States in June 2001.

         In November or December 2003, he returned to Guatemala to see his father, who had become ill, but he did not visit his hometown because "[t]hings [had] gotten worse" there. On February 14, 2004, he traveled back to the United States and remained there for five to six months before again returning to Guatemala in August 2004, this time to see his mother, who had also become ill. In September 2004, while still in Guatemala, he was driving toward his hometown when men with covered faces pulled their car in front of his and shot him. After receiving treatment in a hospital, he traveled back to the United States, entering on November 13, 2004.

         Hernandez-Lima testified that he could not identify his assailants because he could not see their faces, nor could he be sure of their motive because they did not say anything. But he further testified that he believed his shooting was tied to his past political activities and to efforts to extract money from his family. He speculated that his old political opponents were behind the attack because he "never had any problem with anybody else, " and he speculated that his attackers sought money from his family because a few of his relatives had been victims of extortion.

         As Hernandez-Lima explained, after his mother's death in 2010, he learned that gangs had been threatening to "kill somebody in [her] family" if she did not pay them money and that she had obliged. Additionally, he explained that his cousin had faced similar threats but had refused to pay and was subsequently murdered along with his wife and her sister. Hernandez-Lima expressed fear that, if he were removed to Guatemala, he would also face extortion and possibly be killed. When asked who he feared would harm him in these ways, he responded, "There's a lot of criminal activity happening in [Guatemala], gangs, political parties."

         Despite finding Hernandez-Lima credible, the IJ denied him most of the relief he sought. First, the IJ denied his application for withholding of removal, reasoning that he (1) failed to establish that he suffered past persecution on account of a protected ground because he did not show sufficient harm from the threats he received or a motive for the shooting he endured, and (2) failed to establish a clear probability of future persecution on account of a protected ground because all he showed was a possibility that he would be the victim of a crime unrelated to any protected ground. Second, the IJ denied his application for protection under the CAT because he failed to establish that Guatemalan officials ...


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