FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
Olen, for petitioner.
Lindsay M. Murphy, Trial Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, with
whom Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, Civil Division, and Andrew N. O'Malley, Senior
Litigation Counsel, were on brief, for respondent.
Torruella, Thompson, and Kayatta, Circuit Judges.
TORRUELLA, Circuit Judge.
Felipe García-Cruz appeals from a Board of Immigration
Appeals ("BIA") decision, which affirmed an
Immigration Judge's ("IJ") decision denying his
applications for asylum, withholding of removal, and
protection under the Convention Against Torture
("CAT"). García-Cruz argues that he
presented sufficient evidence to establish both past
persecution and a well-founded fear of future persecution,
and that he could not reasonably relocate within Guatemala,
the country of removal.
is a native of Guatemala, from the village of Chixocol, in
the municipality of Zacualpa. García-Cruz became
involved in politics in June 2011, after seeing the Patriota
(Spanish for "Patriot") party's mayoral
candidate for Zacualpa, Gabriel Ventura, deliver a speech.
That month, he joined the Patriota party, and by August he
had become a member of the party's executive committee.
As a member of the committee, he traveled to campaign events
to handle set up and logistics; in his time with the party,
he helped prepare three rallies.
incumbent mayor, Ernesto Calachij-Riz, belonged to the Une y
Gana (Spanish for "Unite and Win") party. According
to García-Cruz, in the days leading up to the
elections, Une y Gana members "began to carry weapons
and threaten [Patriota supporters] with their weapons. They
had guns and they had sticks and machetes . . . and they knew
who [Patriota supporters] were." Une y Gana members also
threatened to "kill anyone who voted for Ventura."
Patriota supporters were "ridiculed, sometimes even
beaten by the Une y Gana party." Nevertheless,
García-Cruz and his family cast their votes for
Ventura on September 11, 2011.
night, it was announced that Calachij-Riz, the Une y Gana
candidate, had won the race. The next morning, Patriota
members gathered at the Une y Gana victory rally, where a
"huge fight broke out" and the "city hall was
set on fire." García-Cruz was at home at the
time, but other Patriota supporters told him that "the
Une y Gana party was going to kill off all the members of the
[Patriota party]." In addition, the Une y Gana party
made "a list of people they accused of being responsible
for the fire." García-Cruz was on the list, even
though he "had nothing to do with the fire, "
because of his "involvement in the Patriota party."
received five threatening phone calls in the aftermath of the
September 2011 election. The first came just days after the
election, when an anonymous caller -- who identified himself
as an Une y Gana member -- blamed García-Cruz for the
fire, pledged to hold him responsible for it, and threatened
his life. A second anonymous caller made similar allegations
and stated: "We are watching you, and when we find you
we will kill you." García-Cruz became so
concerned for his life that he stopped leaving his house. In
the third call, the caller asked García-Cruz why he
had stopped leaving the house, to which García-Cruz
responded that he was frightened.
for his life, García-Cruz moved to Cobán, Alta
Verapaz, Guatemala. There, he found work running games at
fairs and carnivals. On October 9, 2011, while in
Cobán, García-Cruz received the next phone
call. The caller asked why he had left Chixocol and told
García-Cruz that they knew where he was. In the fifth
and final phone call, in January 2012, the caller told
García-Cruz that if he did not return to Chixocol, Une
y Gana would kidnap his wife and children. García-Cruz
never reported the threatening phone calls to authorities. He
claimed that the local police were "in the present
mayor's pocket, " and he feared word would get back
to those threatening him if he reported the calls to the
days after the fifth phone call, García-Cruz relocated
his family to the village of Salamá, about ten hours
from Chixocol. García-Cruz also removed the chip from
his cell phone so that he would not receive any more calls.
After saving enough money, García-Cruz left Guatemala
for the United States in May 2012. Nothing suggests that he
was either harmed or threatened further between January and
May of 2012.
political conflict in Zacualpa resulted in other Patriota
members being targeted. García-Cruz averred that
"other members of the Patriota party were being
kidnapped and beaten." Two or three weeks after the
election, an acquaintance of Ventura was "taken from his
home and beaten very badly." Another Patriota member was
abducted by Une y Gana and only returned as part of a
prisoner exchange. García-Cruz also testified that he
knew of "at least one" person who was killed by Une
y Gana "in the year that [he] left."
García-Cruz does not know what happened to other
members of the committee who were accused of burning the city
hall, however. In June 2012, after García-Cruz fled
Guatemala, Ventura was arrested by the police for alleged
crimes against his political rivals, triggering further
time of García-Cruz's hearing, the president of
Guatemala was a member of the Patriota party, but the Une y
Gana party remained in control of Zacualpa. In addition,
García-Cruz's wife and children were still living
in Salamá. García-Cruz, however, could not live
with them because they lived with his wife's employer,
and he would not be able to find work in Salamá.
conceded removability under 8 U.S.C. §
1182(a)(7)(A)(i)(I) and applied for asylum, withholding of
removal, and protection under the CAT on January 22, 2013. On
May 22, 2014, the IJ held a hearing on
García-Cruz's application. The IJ found his
testimony to be credible, but she ruled that
García-Cruz did not establish past persecution. The IJ
explained that García-Cruz was never physically harmed
and had worked in public view, and the phone calls alone were
not "so menacing as to have caused some actual
harm" and so did not rise to the level of persecution.
Moreover, given García-Cruz's failure to report
the calls to authorities, the IJ "could not conclude the
requisite government action or inaction."
also concluded that García-Cruz's fear of future
persecution was not well-founded; given the time elapsed and
García-Cruz's limited involvement with the
campaign, there was little support for his assertion that he
would be targeted if he returned to Guatemala. Furthermore,
the IJ found that, "although it would be economically
difficult, " García-Cruz could relocate within
Guatemala because Guatemala's president at the time of
the hearing was a member of the Patriota party and "the
Patriota party ha[d] gained significant ground in
Guatemala." Specifically, García-Cruz could
"reasonabl[y]" and "safely" relocate to
Salamá, where he had relocated his wife and children.
Thus, the IJ denied García-Cruz's applications for
both asylum and withholding of removal. The IJ concluded by
denying García-Cruz's application for protection
under the CAT given his failure to demonstrate that he would
be subjected to torture by or with the acquiescence of a
September 30, 2015, the BIA upheld the IJ's decision on
two grounds. First, it adopted the IJ's determination
that the "five anonymous threatening phone calls were
not so menacing as to have caused some actual harm, "
and so they did not rise to the level of past persecution.
Second, it found "no clear error of fact or mistake of
law in the Immigration Judge's assessment" that
García-Cruz "would be able to relocate to another
area in Guatemala." It cited the fact that his wife and
children lived in Salamá as "strong evidence that
[García-Cruz] could do so as well." Thus, the BIA
ruled that García-Cruz was not eligible for either
asylum or withholding of removal. Finally, the BIA affirmed
that García-Cruz failed to establish that "he had
ever been tortured or that government officials seek to
BIA therefore dismissed his appeal, and García-Cruz
petitioned this Court for review.
review the BIA's findings of fact under a
"substantial evidence" standard, and we will uphold
them if they are "supported by reasonable, substantial,
and probative evidence on the record considered as a
whole." Xin Qiang Liu v. Lynch, 802 F.3d 69, 74
(1st Cir. 2015) (quoting Hasan v. Holder, 673 F.3d
26, 33 (1st Cir. 2012)). Questions of law are reviewed de
novo. Id. Thus, we will reverse the BIA's
determination only if "any ...