                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-9-2003

Ramos-Ortiz v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3277




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                                                      NOT PRECEDENTIAL

              UNITED STATES COURT OF APPEALS
                   FOR THE THIRD CIRCUIT
                        ___________

                            No. 02-3277
                            ___________

                      JORGE RAMOS-ORTIZ,
                                     Petitioner

                                   v.

            JOHN ASHCROFT, ATTORNEY GENERAL
                  OF THE UNITED STATES
                                   Respondent
                       ___________

On Petition for Review of an Order of the Board of Immigration Appeals
                       Agency No. A70 679 493

                            ___________

            Submitted Under Third Circuit L.A.R. 34.1(a)
                           June 2, 2003

      Before: BARRY, FUENTES and ROSENN, Circuit Judges

                     (Opinion Filed: July 9, 2003)


                    ________________________

                            OPINION
                    ________________________
FUENTES, Circuit Judge:

       Petitioner Jorge Ramos-Ortiz (“Ramos”) appeals the Board of Immigration Appeals’

(“BIA”) decision to summarily affirm the denial of his application for asylum and

withholding of removal. The Immigration Judge (“IJ”) concluded that Ramos was not a

victim of past persecution and was not likely to be the subject of future persecution if he

returned to Guatemala. Because we find that the IJ’s decision is supported by substantial

evidence, we deny the petition for review.

                                      I. Background

       Because we write solely for the parties, our review of the factual background is

limited to that which is necessary to inform our opinion today. Ramos is an indigenous native

of Guatemala from the Huehuetenango region. He is currently 31 years old, unmarried, and

has no children. While in Guatemala, Ramos lived with his parents. His older brother had

been recruited into the military and was killed in battle against the guerillas.    In 1989,

guerillas began coming to his parents’ home and taking provisions. In early 1990, the

guerillas entered the home at approximately 3 A.M. and demanded that Ramos join them.

Ramos’s father explained that he was ill and needed Ramos at home. The guerillas agreed

that Ramos could stay until his father recovered, but said that if Ramos did not join the

guerillas upon their return, they would kill him. Ramos decided to leave Guatemala rather

than join the guerillas. On his way to the Mexican border, Ramos was stopped by some

guerillas and detained for two days, without explanation. He escaped from this detention and

unlawfully entered the United States on or about May 10, 1990.



                                             2
       In 1993, Ramos filed for asylum under 8 U.S.C. § 1158 and in 1998, the Immigration

and Naturalization Service (“INS”) issued a Notice to Appear, which charged that Ramos

was removable under 8 U.S.C. § 1182(a)(6)(A)(i) because of his illegal entry into the United

States. Ramos conceded that he was removable, but renewed his asylum application and

filed for withholding of removal under 8 U.S.C. § 1231(b)(3) and, alternatively, for voluntary

departure under 8 U.S.C. § 1229c(b)(1). The IJ denied his application. Petitioner filed a

timely appeal with the BIA. The BIA affirmed without opinion and issued a final order of

removal.

       Meanwhile, in March of 1996, the guerillas in Guatemala unilaterally ceased their

military operations. The government immediately ceased military operations as well, and the

two sides entered into peace negotiations which culminated in the signing of peace accords

on December 29, 1996. In March of 1997, the umbrella guerilla organization voluntarily

dissolved itself in order to devote its efforts to legitimate political activity. According to the

State Department’s 1998 human rights report, current conditions in Guatemala remain

difficult: there is a great deal of criminal activity, but the government appears to be

attempting to curb the violence and human rights violations.

                           II. Jurisdiction and Standard of Review

       We have jurisdiction under 8 U.S.C. § 1252(b)(2). The IJ’s opinion is the final agency

determination under 8 C.F.R. § 3.1(a)(7)(iii) (2002), because the BIA affirmed the IJ without

opinion. See Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001). The IJ’s determination

on an asylum applicant’s past persecution or well-founded fear of future persecution is a



                                                3
factual question that we review under a substantial evidence standard. See Gao v. Ashcroft,

299 F.3d 266, 272 (3d Cir. 2002). In Senathirajah v. INS, the court noted that “[s]ubstantial

evidence is more than a mere scintilla and is such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” 157 F.3d 210, 216 (3d Cir. 1998) (quoting

Turcios v. INS, 821 F.2d 1396, 1398 (9th Cir. 1987)). Thus, we should affirm the IJ’s

decision if the record contains adequate evidence to support his decision. See id.

                                       III. Discussion

       Ramos has applied for both asylum under § 208 and withholding of removal under §

241(b)(3). Under 8 C.F.R. § 208.13(a), an asylum seeker must establish that he is entitled

to refugee status. A refugee is defined as a person who is unable to return to his or her

country because of past persecution or a well-founded fear of persecution due to his or her

race, religion, nationality, membership in a particular social group, or political opinion. 8 §

1101(a)(42)(A). In INS v. Cardoza-Fonseca, the Supreme Court held that the well-founded

fear element of the definition of a refugee requires that the asylum seeker demonstrate that

there is a “reasonable possibility” that he will be exposed to persecution upon his return. 480

U.S. 421, 440 (1987) (adopting language of INS v. Stevic, 467 U.S. 407, 424-25 (1984),

which pointed out that “it is enough that persecution is a reasonable possibility”). As the IJ

also noted, an applicant for withholding of removal under § 241(b)(3) must demonstrate a

“clear probability” of persecution based on one of the five protected grounds. See Stevic, 467

U.S. at 430. Withholding of removal is a higher standard for a refugee to meet. See

Senathirajah, 157 F.3d at 215 (an alien must show that it is more likely than not that he will



                                              4
be subjected to persecution upon his return to qualify for withholding of removal, but even

if he fails to meet this standard, he may qualify for a grant of asylum at the Attorney-

General’s discretion if he shows that he has a well-founded fear of persecution which

requires only that he show that persecution is a reasonable possibility on his return). The

persecution must be committed by either the government or forces the government is unable

or unwilling to control. See Gao, 299 F.3d at 272. A well-founded fear of persecution has

both a subjective and an objective element: the alien must have a genuine fear or returning

to his home country, and that fear must be objectively reasonable, that is, a reasonable person

in his circumstances would fear persecution upon his return. See Cardoza-Fonseca, 480 U.S.

at 430-31.

       Ramos has not established that he experienced past harm rising to the level of

persecution for the purposes of the statute. In Fatin v. INS, this court held that persecution

must be defined narrowly. 12 F.3d 1233, 1240 (3d Cir. 1993). In particular, persecution is

only extreme conduct. See id. All treatment that is unjust, unfair, or unlawful does not rise

to the level of persecution. See id. Threats alone are generally not sufficient to constitute past

persecution; instead, only those threats that are so menacing in themselves that they cause

significant actual suffering or harm rise to the level of persecution. See Lim v. INS, 224 F.3d

929, 936 (9th Cir. 2000); Boykov v. INS, 109 F.3d 413, 416-17 (7th Cir. 1997).

       Ramos was subjected to visits by the guerillas in which they demanded food and

supplies, was threatened if he did not agree to join the guerillas, and was detained by

guerillas for two days on his way out of the country. Ramos points to Chang v. INS, 119



                                                5
F.3d 1055 (3d Cir. 1997) and Matter of Itazula, 20 I & N Dec. 149 (BIA 1990), to argue that

harsh prison conditions or the threat of harsh prison conditions may be enough to show harm

rising to the level of past persecution. In Chang, the court addressed whether an alien’s fear

of a year or more of prison as a result of the alien’s choice to break his country’s law could

qualify as fear of persecution. 119 F.3d at 1066-67. In Matter of Itazula, the alien also feared

being placed in prison upon his return, and the BIA held that the harsh prison conditions he

faced, including regular physical and psychological torture, rose to the level of persecution.

20 I. & N. Dec. at 153.

       The instant case is distinguishable because Ramos is not facing any prison time upon

his return to Guatemala, and, therefore, he has no reason to fear harsh conditions in the

Guatemalan prison system. Moreover, the two days of imprisonment he suffered at the hands

of the now disbanded guerilla forces did not include the physical or psychological torture

outlined in Itazula. See also Skalak v. INS, 944 F.2d 364, 365 (7th Cir. 1991) (“brief

detentions and mild harassment” by themselves are not persecution); Al-Saher v. INS, 268

F.3d 1143, 1146 (9th Cir. 2001) (five or six day long detention without beatings, torture or

threat was not persecution). Thus, there was reasonable and sufficient evidence to support

the IJ’s conclusion that Ramos did not face persecution by means of harsh prison conditions

if he was returned to Guatemala.

        In addition, the cumulative harm Ramos was subjected to was not sufficient to

constitute past persecution under Matter of O-Z- & I-Z-, 22 I. & N. Dec. 23 (BIA 1998). In

O-Z- & I-Z-, the BIA held that the aggregation of the various incidents suffered by the



                                               6
petitioner, including multiple beatings, multiple written threats, vandalizing, and degradation

and intimidation of his son were, taken together, persecution. Although the treatment Ramos

received at the hands of the guerillas was unfortunate, there is sufficient evidence to support

the IJ’s conclusion that, even in the aggregate, the guerillas’ treatment of Ramos did not rise

to the level of persecution.

       Even if the past harm had been sufficient enough to constitute past persecution, it was

not based on a protected ground for asylum purposes. Ramos argues that the guerillas

targeted him because of his political opinions. Although he is correct that imputed political

opinions can be sufficient to establish persecution based on political opinion, he has not

established that the guerillas targeted him due to political opinions which he explicitly stated

or which were imputed to him. See Balasubramanrim v. INS, 143 F.3d 157, 165 n. 10 (3d

Cir. 1998). Rather, the evidence supports the IJ’s conclusion that he was targeted because

he was an able bodied male the guerillas were able to reach.

       As explained in INS v. Elias-Zacharias, guerillas’ attempts at forcible recruitment do

not rise to the level of past persecution unless the recruitment is specifically meant to be

persecution for political opinions. 502 U.S. 478, 483 (1992). Ramos has not offered any

evidence that the guerillas near his town knew of his political opinions; in addition, he did

not have any conversation about politics with the guerillas who detained him. Thus, Ramos

did not establish that any of the guerillas knew of his political opinions or targeted him as a

result of those opinions.




                                               7
       In addition, Ramos does not appear to have been targeted either as a result of his

ethnicity or as a result of his membership in a particular social group. The guerillas appear

to have attempted to recruit Ramos because he was an able bodied man within their reach

rather than because of his ethnicity or social group membership. In Pedro-Mateo v. INS, the

court examined precisely this issue in Guatemala, and held that the indigenous majority in

the guerillas’ area was not a social group for asylum purposes. 224 F.3d 1147, 1150 (9th Cir.

2000). Similarly, in Sanchez-Trujillo v. INS, the court held that “[m]ajor segments of the

population of an embattled nation at risk” due to the general violence are not a distinct

“social group” for asylum purposes. 801 F.2d 1571, 1577 (9th Cir. 1986). Finally, the court

in Vides-Vides v. INS held that the dangers faced by members of a particular social group

must be appreciably different than those faced by the population as a whole. 783 F.2d 1463,

1469 (9th Cir. 1986). As the case law points out, the IJ correctly concluded that Ramos’

ethnicity and social group were not the reason for the treatment he received from the

guerillas.

       Ramos also argues that mixed motives can be sufficient to establish past persecution

based on a protected ground even if the protected ground is only part of the reason for the

persecution. See In re S- P- 21 I. & N. Dec. 486, 492 (BIA 1996) (noting that asylum may

be granted if the applicant provides evidence that the persecutors acted out of some improper

motive, even if there were also legitimate motives for their actions). Because Ramos has not

presented evidence sufficient to compel the finding that Ramos suffered persecution on any




                                             8
protected basis, there is not sufficient evidence to overturn the IJ’s rejection of a mixed

motive theory.

       In addition, because conditions in the country have changed drastically since he left

in 1990, Ramos could not establish a well-founded fear of future persecution. See Chang v.

INS, 119 F.3d at 1065 (noting that the petitioner “need only show that he has a subjective fear

of persecution that is supported by objective evidence that persecution is a reasonable

possibility”). According to the 1998 State Department’s Country Report for Guatemala, in

1996 the umbrella guerilla group and the government signed peace accords which have been

successfully implemented. Although the country remains poor and the government faces

challenges in its attempts to control crime, these conditions do not rise to the level of an

objectively supported well-founded fear of persecution. Thus, the IJ correctly concluded

that Ramos did not face a well-founded fear of future persecution.

       However, under 8 C.F.R. § 208.13(b)(1)(iii)(B), the IJ also has discretion to grant

asylum to aliens who were the victims of past persecution but do not have a well-founded

fear of future persecution if the aliens can establish that they have a reasonable fear of “other

serious harm” that is serious enough to equal the severity of harm that would constitute

persecution. See Krastev v. INS, 292 F.3d 1268, 1271 (10th Cir. 2002). However, because

Ramos was not a victim of past persecution for asylum purposes, 8 C.F.R. §

208.13(b)(1)(iii)(B) is not applicable to his case.




                                               9
                                        IV. Conclusion

       We affirm the IJ’s decision because Ramos has not presented evidence to support the

conclusion that he was a victim of past persecution on account of protected grounds, nor has

he shown that he is likely to be subject to future persecution if he returns to Guatemala,

particularly given the dissolution of the guerilla forces in the years since he left the country.




_____________________________
TO THE CLERK OF THE COURT:

Kindly file the foregoing Opinion.




                                                           /s/ Julio M. Fuentes
                                                           Circuit Judge




                                               10
