                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-9-2007

Donis v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4271




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                                                           NOT PRECEDENTIAL


  UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                                No. 05-4271



                    OTTONIEL HERNANDEZ-DONIS,
                                         Petitioner
                               v.


          ATTORNEY GENERAL OF THE UNITED STATES,
                                     Respondent



                    On Petition for Review of an Order
                   of the Board of Immigration Appeals
                            (No. A96-225-665)
                 Immigration Judge: Hon. Eugene Pugliese




                Submitted Under Third Circuit LAR 34.1(a)
                             March 5, 2007

Before: SLOVITER and AMBRO, Circuit Judges, and BRODY,* District Judge

                           Filed: March 9, 2007


                                 OPINION




            *
              Hon. Anita B. Brody, United States District Court for the
      Eastern District of Pennsylvania sitting by designation.
SLOVITER, Circuit Judge

                                            I.

       Petitioner Ottoniel Hernandez-Donis seeks review of a final order issued by the

Board of Immigration Appeals (“BIA”) affirming the decision of the Immigration Judge

(“IJ”) denying his application for asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”). We have jurisdiction to review the petition based

upon 8 U.S.C. § 1252(a)(1). For the reasons stated below, we will deny the petition.

       Hernandez-Donis is a native and citizen of Guatemala. He grew up the son of a

pastor in the Assembly of God church in the rural areas of the country, moving to a small

village at age eight. Apparently the surrounding population was primarily Catholic and of

indigenous origin, whereas his family was Evangelist and of mixed indigenous and

European heritage. He testified that he and his family were “always attacked either by the

guerrillas or by the army.” A.R. at 89.1

       In May 2001, at the age of twenty, Hernandez-Donis moved to Guatemala City in

order “to better [his] life there” and escape the aforementioned mistreatment. A.R. at 91.


                   1
                     Petitioner checked off the “based on religion” box on his
            application, and his testimony and affidavit made general reference
            to harassment and attacks his family experienced during his
            childhood, but he made no specific claim based on events occurring
            outside of Guatemala City in his appeal to the BIA or in the briefs
            to this court. We therefore deem waived any claims based on the
            treatment he and his family may have suffered during his
            childhood. Konan v. Att’y Gen. of the U.S., 432 F.3d 497, 500 n.2
            (3d Cir. 2005).


                                             2
He stated that he “was working there for a few years when . . . some of my friends who

worked there . . . asked [him] to . . . become a member of one of the gangs [“mareros”]

which rob and assault and rape.” A.R. at 91. He explained that he knew these gang

members because “they used to come over to [him] asking [him] for money,” which he

would give them out of fear. A.R. at 95. When he refused to join the gang, the gang

members beat him, an attack which left physical scars and required hospital treatment.

Following his recovery, Hernandez-Donis encountered “one or two” gang members

again, who told him that since “they did not kill [him] before . . . they would kill [him]

now.” A.R. at 92. He testified it was useless to report the attack to the police because the

gang was “mixed [up] . . . with the police and the guerrillas . . . [and] the truth is that

since [the police] are mixed with [the gang members, the police] themselves are corrupt.”

A.R. at 95-96.

       He came to the United States out of fear of further violence, and entered the United

States in July 2003 without inspection. He was immediately detained in Arizona, but was

released on his own recognizance and permitted to travel to New Jersey on condition that

he report monthly to a deportation officer.2 The Department of Homeland Security placed

Hernandez-Donis into removal proceedings, and he conceded removability before the IJ.



                    2
                    Although his affidavit asserted that he was “not sure” why
             the INS issued him documents in his father’s name, “Hernandez-
             Garcia,” A.R. at 202, Hernandez-Donis testified that he was afraid
             to give his real name to immigration officials when he was
             detained.

                                               3
       Hernandez-Donis applied for asylum, withholding of removal, and relief under the

CAT. Following an evidentiary hearing the IJ issued an oral decision denying the

application. The BIA affirmed the IJ’s decision without opinion. This timely petition for

review followed.

                                             II.

       Where, as here, the BIA has not rendered its own opinion but rather has deferred to

or adopted the opinion of an IJ, we review the decision of the IJ as the final agency

decision. Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir. 2004); Dia v. Ashcroft, 353 F.3d

228, 243 (3d Cir. 2003) (en banc). We conduct our review under the substantial evidence

standard, which requires us to examine the IJ's findings to determine whether they are

“supported by evidence that a reasonable mind would find adequate.” Dia, 353 F.3d at

249. We may reverse a finding of the IJ only when “no reasonable fact finder could make

that finding on the administrative record.” Id. at 249; Chavarria v. Gonzalez, 446 F.3d

508, 517 (3d Cir. 2006).

       To qualify as a “refugee” who may receive asylum, an alien must establish that

s/he is unable or unwilling to return to his or her country of nationality “because of

persecution or a well-founded fear of persecution on account of race, religion, nationality,

membership in a particular social group, or political opinion . . . .” 8 U.S.C. §

1101(a)(42)(A). To establish a well-founded fear of persecution, an asylum applicant

must “demonstrate a subjective fear of persecution through credible testimony that [his

or] her fear is genuine.” Sukwanputra v. Gonzales, 434 F.3d 627, 637 (3d Cir. 2006).

                                              4
The BIA and this court have defined persecution as “‘threats to life, confinement, torture,

and economic restrictions so severe that they constitute a threat to life or freedom.’” Lie

v. Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005) (citing Fatin v. INS, 12 F.3d 1233, 1240

(3d. Cir. 1993)). However, persecution does not “encompass all treatment that our

society regards as unfair, unjust, or even unlawful or unconstitutional.” Fatin, 12 F.3d at

1240. The persecution alleged must be at the hands of the government or individuals the

government is either unable or unwilling to control. Gao v. Ashcroft, 299 F.3d 266, 272

(3d Cir. 2002).

       The applicant has “the burden of showing that the persecution was on account of

the applicant's race, religion, nationality, membership in a particular social group, or

political opinion,” Lukwago v. Ashcroft, 329 F.3d 157, 170 (3d Cir. 2003). In order for

the persecution to qualify under the statute, “the persecutor must be motivated, at least in

part, by one of the enumerated grounds.” Id. at 170. There is no such requirement to

qualify for relief under the CAT. See Tarrawally v. Ashcroft, 338 F.3d 180, 188 (3d Cir.

2003). However, an applicant for relief under the CAT bears the burden of proving

through objective evidence that it is “more likely than not” that s/he would be tortured in

the country to which the applicant would be removed. Wang v. Ashcroft, 368 F.3d 347,

349 (3d Cir. 2004) (quoting 8 C.F.R. § 1208.16(c)(2)).

       Torture is defined as “any act by which severe pain or suffering, whether physical

or mental, is intentionally inflicted on a person for such purposes as . . . intimidating or

coercing him or her or a third person, or for any reason based on discrimination of any

                                               5
kind . . . .” 8 C.F.R. § 1208.18(a)(1). The applicant carries the burden of proving the

torture would occur “with the consent or acquiescence of a public official or other person

acting in an official capacity.” Id.; see also Lukwago, 329 F.3d at 183.

       The IJ found that the testimony of Hernandez-Donis was honest and credible, but

concluded that he was ineligible for asylum or withholding of removal because he failed

to show that he was persecuted on account of one of the five enumerated grounds

provided in the INA. According to the IJ, Hernandez-Donis: “was subjected to violence

because violence seems to be widespread in Guatemala, and people will extort money

from him as they will extort money apparently from anyone who has money that can be

extorted.” A.R. at 64. The IJ stated further: “There is no political agenda for this group

that I have been able to discern from this testimony or from this record, and the group

does not seem to care what the political persuasion is of the respondent.” Id.

       The IJ’s conclusion was supported by the evidence. Hernandez-Donis’s testimony

established that the gang members beat him for refusing to join their ranks and partake in

their criminal endeavors. He did not show that the gang persecuted or will persecute him

because of his political opinion, imputed or express. Assuming arguendo that the gang

itself possessed some political agenda, the act of "not taking sides with [a] political

faction” is not ordinarily “itself the affirmative expression of a political opinion.” INS v.

Elias-Zacarias, 502 U.S. 478, 479-80, 482-83 (1992) (noting the variety of apolitical

reasons one might resist membership in a guerrilla organization, such as “fear of combat,

a desire to remain with one's family and friends, a desire to earn a better living in civilian

                                              6
life, to mention only a few,” and upholding denial of asylum to applicant who claimed to

have fled guerrilla forces attempting to recruit him, as record did not compel finding that

guerrillas would persecute him based on applicant’s political opinion rather than because

of his refusal to join guerrillas).

       Furthermore, it is settled that “random street violence” or “ordinary criminal

activity” that is “motivated not by animosity” against a particular political position, “but

rather by arbitrary hostility or by a desire to reap financial rewards. . . . does not rise to

the level of persecution necessary to establish eligibility for asylum.” Abdille v.

Ashcroft, 242 F.3d 477, 494 (3d Cir. 2001). Based on the evidence, a reasonable

adjudicator would not be compelled to conclude that Hernandez-Donis was assaulted on

account of his political opinion. Thus Hernandez-Donis has not satisfied the required

burden of proof to show eligibility for asylum and, necessarily, the higher burden of proof

to show withholding of removal.

       Hernandez-Donis argues that the IJ erred in determining that he did not warrant

relief under the CAT. The IJ concluded that the one instance of a physical attack upon

him did not “rise to the level of torture.” A.R. at 65. Hernandez-Donis did not dispute

this particular conclusion in his brief, and “[i]t is well settled that an appellant's failure to

identify or argue an issue in his opening brief constitutes waiver of that issue on appeal.”

U.S. v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005). The issue of waiver aside, however, it

was not unreasonable for the IJ to conclude that the past incidents he described, including

efforts at extortion by the gang and an isolated physical assault, did not establish that “it

                                                7
is more likely than not that he will be subject to torture by, at the instigation of, or with

the acquiescence of a public official.” Amanfi v. Ashcroft, 328 F.3d 719, 725 (3d Cir.

2003). While evidence of past torture can be considered in determining whether future

torture is likely, see Zubeda v. Ashcroft, 333 F.3d 463, 478 (3d Cir. 2003), such an

isolated physical attack by gang members did not involve the degree of “severe pain and

suffering” contemplated as constituting torture. 8 C.F.R. § 1208.18(a)(2) (“Torture is an

extreme form of cruel and inhuman treatment and does not include lesser forms of cruel,

inhuman or degrading treatment or punishment that do not amount to torture.”); see also

Lie, 396 F.3d at 536 (“[I]solated criminal acts, perpetrated by unknown assailants, which

resulted only in the theft of some personal property and a minor injury, [are] not

sufficiently severe to be considered persecution.”) (emphasis added).

       Hernandez-Donis argues that the IJ failed to consider the entire record, in

particular the evidence that clandestine groups act in conjunction with, or with the silent

acquiescence of, the Guatemalan government. He argues that he is entitled to protection

under the CAT because he has a well-founded fear that, if returned to Guatemala, the

clandestine gang that harassed, exploited, intimidated, threatened and beat him in the past

will do so in the future with the knowledge or with the willful blindness of the

government. However, as the Government argues in its brief, inasmuch as the IJ

determined that Hernandez-Donis has failed to demonstrate that he is more likely than not

to be tortured, it was not necessary for the IJ to address that argument.

                                              III.

                                               8
      In conclusion, we find that the IJ’s rulings were substantially supported by the

record. We will deny Hernandez-Donis’s petition for review.




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