Cruz-Samayoa v. Holder

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0178p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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LAZARO CRUZ-SAMAYOA; ABIGAIL ONOFRE

Petitioners, --

CRUZ-GONZALEZ; DELIA SUSANA CRUZ,

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No. 09-3824

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v.

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Respondent. -

ERIC H. HOLDER, JR., Attorney General,

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On Petition for Review from the

Board of Immigration Appeals.

Nos. A096 351 548; A079 538 299; A072 521 415.

Decided and Filed: June 21, 2010

Before: NORRIS, MOORE, and McKEAGUE, Circuit Judges.

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COUNSEL

ON BRIEF: Jamie B. Naini, LAW OFFICES OF JAMIE B. NAINI, Bartlett, Tennessee,

for Petitioners. Kristofer R. McDonald, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Respondent.

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OPINION

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KAREN NELSON MOORE, Circuit Judge. This case requires us to differentiate

between a fear of legitimate criminal prosecution and illegitimate persecution for purposes

of eligibility for humanitarian relief from removal under the Immigration and Nationality Act

(“INA”). Lazaro Cruz-Samayoa (“Cruz”) and his two adult children, Abigail Onofre Cruz-

Gonzalez (“Abigail”) and Delia Susana Cruz (“Delia”), collectively, the Cruz family,

petition this court for review of a Board of Immigration Appeals (“BIA”) order denying their

respective applications for asylum, withholding of removal, and relief under the Convention

Against Torture (“CAT”). Because Cruz has failed to establish that he is a refugee within

1

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the meaning of the INA, and Abigail and Delia have failed to show that they cannot

reasonably and safely relocate within Guatemala to avoid potential harm, we DENY their

petitions for review.

I. BACKGROUND

A. Factual Background

For the purposes of the Cruz family’s applications for relief, the trouble began in

Guatemala in September 2003 when Hector Reyes Perez (“Reyes”), a community leader and

peasant farmer, disappeared. Reyes was the manager of several swaths of farmland owned

by the Spaniard Carlos Vidal Fernandez Alejos (“Vidal”), including one parcel named Nueva

Linda in the Guatemalan state of Retalhuleu. At the time of Reyes’s disappearance, the

Guatemalan government had initiated a program under which it agreed to redistribute parcels

of farmland, including some that Vidal owned, to the peasant farmers in the region. Reyes

was allegedly helping to organize the government’s transfer of land, which was clearly in

direct conflict with the interests of Vidal, his employer. Because of Reyes’s role in the

redistribution plan, many individuals from Retalhuleu, including Cruz, believed that Vidal

had orchestrated Reyes’s disappearance and suspected death in order to prevent the seizure

of his land. At the time of Reyes’s disappearance, Cruz was still residing in the United

States, but apparently motivated by the prospect of obtaining some land as a result of the

government’s redistribution efforts, Cruz returned to Guatemala in January 2004.

Despite the general belief among the peasant farmers that Vidal was responsible for

Reyes’s disappearance, the Guatemalan government never brought charges against Vidal,

and many organizations, including Amnesty International, questioned the thoroughness of

the government’s investigation. To protest the government’s inaction, approximately nine

hundred peasants, many of whom were members of the Association of Farmers’

Development Committees (“CODECA”), peacefully occupied Nueva Linda for eight months

in early 2004. Cruz took part in this protest and was nominated to be one of the four

spokespersons for CODECA. According to Cruz, their hope was to pressure the authorities

into investigating further Reyes’s disappearance. Cruz also testified that this initial

occupation was authorized by court order. As a spokesperson, Cruz engaged in negotiations

between the peasant farmers and the Guatemalan government, which ultimately proved

No. 09-3824 Cruz-Samayoa et al. v. Holder Page 3

fruitless. At some point either during or following the negotiations, the governor of

Retalhuleu ordered the peasant farmers to vacate the property. The record appears to

indicate that the original judicial order allowing the peaceful occupation had been overruled

and that the eviction order was valid.

According to Cruz’s testimony and the articles that he submitted in support of his

application for relief, when the peasant farmers refused to vacate the land, around 1000

Guatemalan police, known as the National Civilian Police (“PNC”), entered Nueva Linda

in an attempt to remove the protestors and enforce the eviction order. Unfortunately, a

violent confrontation ensued. An Amnesty International report, which Cruz introduced as

1

part of the record, indicates that “[t]he first line of police [to enter Nueva Linda] was

unarmed.” Amnesty Int’l, Guatemala: Land of Injustice? (Mar. 2006), available at

http://www.amnesty.org/es/library/info/AMR34/002/2006. Press reports in the record

indicate, however, that as the officers advanced the occupying peasant farmers attacked

the PNC with numerous weapons, including AK-47s, rifles, firebombs, pyrotechnic

devices, and machetes. One article that Cruz submitted states that as the PNC advanced,

“two agrarian leaders” on horseback “distribute[d] ammunition[] to their companions,”

encouraging them to fight the police. Pet. App’x at 202 (Prensa Libre Art.). Not

surprisingly, the police responded with tear gas, batons, and perhaps firearms, although

it is not entirely clear from the record. Cruz testified that despite the press accounts and

the Guatemalan government’s assertions, the peasant farmers did not, in fact, bring

weapons to the occupation of Nueva Linda. Instead, Cruz claims that the PNC and

individuals working in conjunction with Vidal introduced weapons into the otherwise

peaceful protest in order to undermine the objectives of the occupation. Cruz testified

that he did not possess any weapons and did not harm any police officers. He stated that

he engaged in only peaceful protest tactics—hanging signs and demanding justice. At

the end of the ordeal, however, there were scores injured and at least ten individuals

dead, including seven peasant farmers and three police officers.

1

Cruz’s version of the report appears to be a very poor, perhaps automated, translation from

Spanish into English, and it is extremely difficult to decipher. Because the cover page of the report

includes a web address to Amnesty International’s English-language version, we rely on that document

instead of the translated version in the record.

No. 09-3824 Cruz-Samayoa et al. v. Holder Page 4

Following the incident at Nueva Linda, the Guatemalan government issued an

arrest warrant for Cruz based on his alleged participation and leadership role at Nueva

Linda. Because Cruz believed that the Guatemalan government was attempting to

prosecute him based solely on his political opinion, and not for any legitimate law-

enforcement purpose, he fled Guatemala to the United States. Cruz testified that given

the imbalance of power between the landed class and the peasants, there was no hope for

a fair trial in Guatemala. Both Abigail and Delia testified that based on their relationship

to their father they also feared being returned to Guatemala. Specifically, they believed

that Cruz’s political opinion would be imputed to them and that they would become the

targets of violence at the hands of Cruz’s enemies, including Vidal and the rest of the

property owners of Spanish descent in the region.

B. Procedural History

The Immigration Judge (“IJ”) held a hearing on the merits of Cruz’s, Abigail’s,

and Delia’s applications for asylum, withholding of removal, and CAT relief in July

2007.2 The IJ found that the Cruz family was “basically credible.” Pet. App’x at 27 (IJ

Decision). Specifically with regard to Cruz, the IJ concluded that he would “largely

accept . . . Cruz’s discussion of what happened.” Id. In fact, the IJ did not believe Cruz

to be “lying about anything that actually happened,” and concluded that Cruz testified

credibly “as to what happened, what he thinks happened, or what he believes in his

opinion is the motivation of the people in Guatemala.” Id. Despite this conclusion,

however, the IJ then refused to “accept [Cruz’s] description of what went on on the

Vidal farm,” concluding that all of Cruz’s supporting documentation indicated that it was

not “a peaceful demonstration of any sort.” Id. Moreover, the IJ specifically rejected

Cruz’s claim that Vidal was responsible for the introduction of weapons, deeming Cruz’s

assertion “impossible to believe.” Id. at 28.

2

Cruz had filed his original application for asylum in 1994. At the 2007 hearing, the IJ concluded

that Cruz had “abandoned” the original application by returning to Guatemala in the interim period. Pet.

App’x at 20 (IJ Decision). Instead of having Cruz file a new application, however, the IJ agreed to

evaluate the Cruz family’s claims to the extent that they were predicated solely on those events occurring

in and after 2004. At no point before the agency or before this court has Cruz challenged this

determination.

No. 09-3824 Cruz-Samayoa et al. v. Holder Page 5

The IJ ultimately concluded that Cruz “was involved in an armed confrontation

with the police” at the Nueva Linda farm, “which was certainly illegal at the time and

place of its occurrence,” and that Cruz was barred from asylum and withholding of

removal. Id. The IJ alternatively concluded that Cruz was “clearly a terrorist as that

term is defined in the [INA],” and would be barred from relief on that ground as well.

Id. With respect to Abigail and Delia, the IJ acknowledged that “[t]here is some level

of risk to them” as a result of their father’s activities but that it would be “extremely

unlikely that anyone would connect them with their father’s activism” and cause them

harm provided that “they returned to Guatemala City or some other part of the country.”

Id. at 30. Furthermore, the IJ concluded that Abigail and Delia had failed to establish

that “members of a family” amounted to a particular social group under the INA and

would have failed to meet the burden to show eligibility for relief even assuming that

relocation within Guatemala were not a possibility. Id. at 31. Turning to the Cruz

family’s CAT claims, the IJ found that “there is no evidence in th[e] record that would

indicate that if [Cruz] were to be prosecuted under the warrant for his arrest in

Guatemala that he would more likely than not be tortured.” Id. at 29–30. The IJ further

concluded that “there is no evidence whatsoever that the children would be tortured by

anyone, let alone someone with which the government acquiesces or turns a blind eye

to.” Id. at 30.

The BIA affirmed the IJ’s decision denying asylum and withholding of removal

to Cruz on the ground that Cruz had failed to establish that the criminal charges he faces

in Guatemala are, in fact, pretext for persecution based on his political opinion. Because

Cruz had failed to meet his burden to show that he faces persecution on political

grounds, the BIA expressly declined to “reach the Immigration Judge’s alternate

determination that [Cruz] is a terrorist and thus barred from obtaining [] relief.” Pet.

App’x at 8 (BIA Op.). Disposing of Abigail’s and Delia’s claims, the BIA ruled that

they had not shown that they could not reasonably relocate within Guatemala in order

to avoid harm, thus failing to meet their burden for asylum or withholding of removal

based on fear of future persecution. Lastly, the BIA upheld the IJ’s denial of CAT relief

on the grounds that none of the members of the Cruz family had presented sufficient

No. 09-3824 Cruz-Samayoa et al. v. Holder Page 6

evidence to show “that they face a clear probability of torture in Guatemala.” Id. The

Cruz family timely sought review of the decision of the BIA.

II. ANALYSIS

A. Standard of Review

Because the BIA adopted and supplemented the IJ’s decision, we review the

opinion of the IJ in conjunction with the BIA’s additional comments and discussion. See

Bi Feng Liu v. Holder, 560 F.3d 485, 490 (6th Cir. 2009). “We review the IJ’s and

BIA’s findings for substantial evidence and may reverse only if the decision was

‘manifestly contrary to law,’ 8 U.S.C. § 1252(b)(4)(C), that is, if the evidence ‘not only

supports a contrary conclusion, but indeed compels it,’” Haider v. Holder, 595 F.3d 276,

281 (6th Cir. 2010) (quoting Ouda v. INS, 324 F.3d 445, 451 (6th Cir. 2003)).

B. IJ’s Credibility Determination

A preliminary matter that this court must address before reaching the issue of

whether Cruz has established eligibility for relief from removal involves a dispute over

the IJ’s credibility finding. Cruz argues that the IJ’s finding on his credibility was

inconsistent. Cruz claims that, in one breath, “[t]he IJ explicitly [found] Mr. Cruz to be

credible and state[d]” that the IJ did not believe Cruz to be “‘lying about anything that

actually happened,’” but, “[i]n almost in the same breath . . . the IJ disavow[ed] Mr.

Cruz’s account of the situation at Mr. Vidal’s farm.” Appellant Br. at 27 (quoting IJ’s

Decision). Cruz asserts that “[i]t is extremely unclear exactly what portion of Mr. Cruz’s

testimony the IJ believed if he did not believe the portion regarding the farmer’s group,”

id., and he argues before this court that he “must be found credible” and that “his

testimony treated as such.” Id. at 28. The BIA made no finding with regard to

credibility.

We agree with Cruz that there is some tension between the IJ’s determination that

Cruz was “basically credible” and that he was not lying “about anything that actually

happened,” Pet. App’x at 27 (IJ Decision), and the subsequent conclusion that Cruz’s

account of the confrontation at Nueva Linda was “impossible to believe,” id. at 28. In

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essence, despite a statement that Cruz was not lying, the IJ did appear to treat his

testimony as untrue, and the IJ’s conflicting statements make it difficult to determine

what the IJ actually credited. Recently, in Haider, a panel of this court confronted a

similar challenge to an IJ’s ambiguous credibility finding when, as here, the credibility

determination was not the basis of the agency’s ultimate decision to deny relief. In

Haider, the panel held that “when an IJ or the BIA expresses suspicion about an

applicant’s lack of credibility but the BIA fails to make an explicit adverse determination

and instead denies relief on some other basis, we will assume that the applicant was

credible in order to review the actual grounds for the ruling.” Haider, 595 F.3d at 282.

“If we conclude that the stated basis for denying relief was supported by substantial

evidence, further review is foreclosed,” but “[i]f the evidence compels the opposite

result, however, we will remand for a credibility determination.” Id. (citing

Cordon-Garcia v. INS, 204 F.3d 985, 993–94 (9th Cir. 2000)); see also Maklaj v.

Mukasey, 306 F. App’x 262, 264 n.4 (6th Cir. 2009) (unpublished opinion).

We will thus assume for the purposes of this appeal that Cruz testified

credibly—i.e., that although Cruz was a leader of a group of individuals that ultimately

engaged in a protest that turned violent, Cruz himself was unarmed, did not engage in

violent behavior, and was not responsible for arming the peasants who did possess

weapons. Ultimately, however, the assumption that Cruz testified credibly is irrelevant

because, for the reasons outlined below, we hold that the BIA’s finding that Cruz will

not be persecuted upon his removal to Guatemala is supported by substantial evidence,

and no remand is required. Cf. Haider, 595 F.3d at 283.

C. Cruz Is Ineligible for Asylum and Withholding of Removal

“The disposition of an application for asylum involves a two-step inquiry:

(1) whether the applicant qualifies as a refugee as defined in 8 U.S.C. § 1101(a)(42)(A),

and (2) whether the applicant merits a favorable exercise of discretion by the Attorney

General.” Kouljinski v. Keisler, 505 F.3d 534, 541 (6th Cir. 2007) (internal quotation

marks omitted). “[T]o qualify as a refugee,” the applicant must establish “that he or she

has suffered past persecution on the basis of race, religion, nationality, social group, or

No. 09-3824 Cruz-Samayoa et al. v. Holder Page 8

political opinion; or . . . show[] that he or she has a well-founded fear of persecution on

one of those same bases.” Id.; see also 8 C.F.R. § 1208.13(b). If an individual is eligible

for asylum, then the applicant bears the “burden of establishing that the favorable

exercise of discretion is warranted.” Kouljinski, 505 F.3d at 542 (internal quotation

marks omitted).

“To prevail on a petition for withholding of removal under the INA, an alien

must show that there is a ‘clear probability,’ that is, that ‘it is more likely than not,’ that

[he or] she would be subject to persecution on the basis of one of these five grounds

were [he or] she removed from this country.” Almuhtaseb v. Gonzales, 453 F.3d 743,

749 (6th Cir. 2006) (quoting Liti v. Gonzales, 411 F.3d 631, 640–41 (6th Cir. 2005), and

8 C.F.R. § 1208.16(b)(2)). “By contrast, to be eligible for withholding of removal under

the CAT, the ‘applicant bears the burden of establishing it is more likely than not that

he or she would be tortured if removed to the proposed country of removal.’” Id.

(quoting Liti, 411 F.3d at 641).

The BIA’s conclusion that Cruz is not a “refugee” and is ineligible for asylum

or withholding of removal because he does not fear persecution on account of his

political opinion is supported by substantial evidence. Accordingly, we deny Cruz’s

petition for review.3 As this Circuit has recognized previously, there is a marked

distinction between persecution and criminal prosecution. See, e.g., Perkovic v. INS, 33

F.3d 615, 622 (6th Cir.1994); Hajdari v. Gonzales, 186 F. App’x 565, 568 (6th Cir.

2006) (unpublished opinion); Lakaj v. Gonzales, 158 F. App’x 678, 683 (6th Cir. 2005)

(unpublished opinion). That is not to say, however, that there are not instances in which

criminal prosecution can amount to persecution within the meaning of the INA. Haider,

595 F.3d at 286–87 (“[T]he types of actions that might cross the line from harassment

to persecution include: detention, arrest, interrogation, prosecution, imprisonment,

illegal searches, confiscation of property, surveillance, beatings, or torture.” (internal

quotation marks and alteration omitted)).

3

Cruz also challenges the IJ’s alternative conclusion that he is a “terrorist” within the meaning

of the INA. The BIA expressly declined to opine on the IJ’s conclusion, and as it does not affect the

outcome of this proceeding, we offer no opinion on that issue.

No. 09-3824 Cruz-Samayoa et al. v. Holder Page 9

Some courts have noted that persecution does not exist where the law that the

native country seeks to enforce in its criminal prosecution is “generally applicable.”

Saleh v. U.S. Dep’t of Justice, 96 F.2d 234, 239 (2d Cir. 1992); Abedini v. INS, 971 F.2d

188, 191 (9th Cir. 1992). Still other courts have noted that petitioners fail to establish

persecution where the law is “fairly administered.” Scheerer v. U.S. Att’y Gen., 445 F.3d

1311, 1315 (11th Cir. 2006); Shardar v. Ashcroft, 382 F.3d 318, 323 (3d Cir. 2004);

Ngure v. Ashcroft, 367 F.3d 975, 991 (8th Cir. 2004); Ali v. Gonzales, 190 F. App’x 13,

16 (1st Cir. 2006) (unpublished opinion).

A petitioner may also establish that prosecution reaches the level of persecution

if the individual can demonstrate that the prosecution or criminal investigation “was

actually pretext for persecution” on account of one of the INA’s enumerated grounds.

Lakaj, 158 F. App’x at 683; see Hajdari, 186 F. App’x at 568. To determine whether

the government’s motivations for criminal prosecution are improper, this Circuit has

looked at the substance and context of the law that the native country is attempting to

enforce. For example, in Perkovic, a panel of this Circuit held that criminal prosecution

under laws in the former Yugoslavia that “outlaw[ed] and punishe[d] peaceful

expression of dissenting political opinion, the mere possession of Albanian cultural

artifacts, the exercise of citizens’ rights to petition their government, and the association

of individuals in political groups with objectives of which the government d[id] not

approve” amounted to political persecution and not legitimate criminal prosecution.

Perkovic, 33 F.3d at 622; see also Palushaj v. INS, No. 93-3196, 1994 WL 198169, at

*2 (6th Cir. May 17, 1994) (unpublished opinion) (indicating that charges of being a

“counter-revolutionary” may form the basis of a persecution claim because

“‘counterrevolution’ is a classic political crime”); Li Wu Lin v. INS, 238 F.3d 239 (3d

Cir. 2001) (inquiring into the context of a trespassing charge that was levied immediately

after the massacre in Tiananmen Square). Moreover, “prosecution under [a] law of

general applicability can [also] justify asylum or withholding of [removal]” in cases

where “the punishment under the law is sufficiently serious to constitute persecution.”

Shardar, 382 F.3d at 323 (citing Fisher v. INS, 79 F.3d 955, 962 (9th Cir. 1996), for the

proposition “that there are ‘two exceptions to the general rule that prosecution does not

No. 09-3824 Cruz-Samayoa et al. v. Holder Page 10

amount to persecution—disproportionately severe punishment and pretextual

prosecution’”).

In the instant case, the Guatemalan government has filed charges against Cruz

for his participation and leadership in the events that took place at Nueva Linda, and it

is for this reason that Cruz entered the United States most recently. The indictment and

warrant are not part of the record, but according to an e-mail from the U.S. Citizenship

and Immigration Services Fraud Detection Unit, the INTERPOL report indicates that as

a result of Cruz’s “organization and incitement of rural inhabitants to resist Guatemalan

security forces, . . . [t]he charges outstanding against Cruz-Samayoa are murder,

attempted murder, serious injuries, sedition, public intimidation, instigation to commit

crimes, illegal grouping of armed people, assault, resistance with specific aggravations,

and disobedience.” Pet. App’x at 188.4 Based on the INTERPOL report, the laws that

Guatemala seeks to enforce against Cruz are laws of general applicability and their

underlying substance is not questionable. In fact, many, if not all, of the charges would

constitute crimes under the laws of the United States. See Guchshenkov v. Ashcroft, 366

F.3d 554, 559 (7th Cir. 2004) (stating “that prosecution for activities that would be

illegal under our own laws is not grounds for asylum . . .”); cf. Perkovic, 33 F.3d at 622.

Furthermore, there is no record evidence indicating that the Guatemalan

government’s desire to prosecute Cruz criminally is, in reality, based on the Guatemalan

government’s dislike of his political opinion. Cruz claims that the pretextual nature of

the charges is evident because they (1) are baseless and (2) include a charge for narcotics

trafficking, which has nothing to do with the Nueva Linda confrontation. Neither of

these facts, however, demonstrates pretext in this case. First, neither the BIA nor the

federal court of appeals has the jurisdiction to determine whether Cruz is, in fact, guilty

of the charges levied, and the mere fact that he proclaims innocence is an insufficient

basis upon which to determine that the charges are pretextual. See, e.g., Tadeo v. INS,

No. 94-70643, 1996 WL 207141, at *2 (9th Cir. Apr. 26, 1996) (unpublished

4

Although Cruz challenged the admissibility of the e-mail relating the contents of the INTERPOL

report before the IJ, Cruz neither appealed the IJ’s decision to admit the e-mail as evidence of the charges

to the BIA nor challenges its evidentiary value in this court.

No. 09-3824 Cruz-Samayoa et al. v. Holder Page 11

memorandum); Castaneda v. INS, 23 F.3d 1576, 1578 (10th Cir. 1994). According to

the objective record evidence that Cruz himself introduced, he was a leader of or

spokesperson for the peasant farmer group at Nueva Linda, and the confrontation

between that group and the police did turn extremely violent, resulting in several deaths.

Even crediting Cruz’s testimony that he did not harm any police officers and was

unarmed, Guatemala has the right “to protect [itself] from criminals,” Perkovic, 33 F.3d

at 622, which includes bringing charges against and prosecuting those that it suspects

are guilty of legitimate crimes.

Moreover, Cruz has failed to show that he would be unable to contest these

“baseless” charges in Guatemala. Although Cruz did introduce testimony from Harry

Vanden, Ph.D., an expert in Guatemalan political conflicts, that Cruz’s status as a

peasant farmer made the likelihood of a “fair trial” in Guatemala “very, very low[,]” Pet.

App’x at 93 (Vanden Test.), the IJ only partially credited this testimony because “Dr.

Vanden was not able to back up some of his statements with specific instances,” Pet.

App’x at 25 (IJ Decision), and appeared to advocate on behalf of the Cruz family, as

opposed to acting as an objective expert. The U.S. State Department 2006 Country

Report, which was also submitted as evidence, likewise provides little support for the

conclusion that Cruz’s trial would be unfair or that he would be unable to make his claim

of innocence before a Guatemalan tribunal. See Pet. App’x at 172–73 (U.S. Dep’t State

Country Report 2006). The Guatemalan “constitution provides for the right to a fair,

public trial, the presumption of innocence, the right to be present at trial, and the right

to counsel.” Id. at 173. And although there were some reports of “corruption,

ineffectiveness, and manipulation of the judiciary,” the country’s highest court

“continued to seek the suspension of judges and to conduct criminal investigations for

improprieties or irregularities in cases under its jurisdiction,” id. at 172, and “[t]here

were no reports of political prisoners or detainees,” id. at 173. In short, the record

evidence fails to compel the conclusion that Cruz would not be able to contest the

charges and receive a fair trial upon return to Guatemala.

No. 09-3824 Cruz-Samayoa et al. v. Holder Page 12

Cruz’s second assertion of pretext concerns the purported inclusion of a drug-

trafficking charge in the indictment. This claim is also without merit. Notably, the

INTERPOL report does not include such a charge. In fact, neither does the letter from

Cruz’s Guatemala-based defense attorney, which was submitted as evidence before the

IJ. That letter simply states that the case against Cruz in relation to his activities at

Nueva Linda is pending before the “Court of First Instance of Criminal Narcotrafficking

and Crimes Against the State of Retalhuleu.” Pet. App’x at 186–87 (Att’y Letter). Thus,

although Cruz may have realistically believed that he was subject to a drug charge,

revealing the Guatemalan government’s nefarious motive, the objective record evidence

indicates differently. See Shardar, 382 F.3d at 323.

In sum, the record evidence simply does not compel the conclusion that Cruz

fears illegitimate persecution on account of his political opinion as opposed to legitimate

criminal prosecution. See Ngure, 367 F.3d at 991 (“Ngure has not produced evidence

that the criminal charges against him were improperly motivated or that he would

receive an unfair trial.”). Again, Cruz admitted to being one of the leaders of a group

of individuals occupying Nueva Linda, and it is clear that some of those individuals

ultimately engaged in an extremely violent conflict with Guatemalan police that resulted

in at least ten deaths, regardless of whether Cruz himself injured police officers or

incited the violence. His leadership role in this confrontation is sufficient to make him

criminally liable. See, e.g., id. (“The evidence . . . does not compel the conclusion that

the Kenyan government’s issuance of an arrest warrant for violating a bond and

reporting requirement imposed in the wake of a riotous demonstration was really an

effort to persecute Ngure because of his political opinion.”); Shardar, 382 F.3d at 323

(“[T]he evidence supports the conclusion that Shardar was not persecuted on account of

his political opinion; rather, he was legitimately prosecuted for participation in a violent

political demonstration.”); Xue v. Gonzales, 121 F. App’x 752, 753 (9th Cir. 2005)

(unpublished opinion) (“Substantial evidence supports the IJ’s finding that petitioner

failed to establish past persecution or a well-founded fear of future persecution.

Petitioner participated in a workplace demonstration that escalated into a physical fight

and left many individuals injured. Petitioner received two court summonses regarding

No. 09-3824 Cruz-Samayoa et al. v. Holder Page 13

the assaults which he ignored and fled the country fearing arrest.”); Ahmed v. INS, 202

F.3d 277 (table) (9th Cir. 1999) (unpublished memorandum) (holding the petitioner “had

failed to show . . . a well-founded fear of persecution” and was “fleeing legitimate

prosecution in his home country” when the petitioner “was arrested . . . because he

participated in a violent demonstration in which people were armed with hockey sticks

and pipe bombs”). As a result, Cruz is ineligible for asylum and withholding of removal,

and we DENY his petition for review.

D. Abigail and Delia Failed to Meet the Burden for Asylum and Withholding

of Removal

Turning to Abigail and Delia’s claims for asylum and withholding of removal,

we also deny their petitions for review. Both Abigail’s and Delia’s applications for

relief are based solely upon their fear of future persecution at the hands of the Spanish

farm owners and their henchmen who allegedly want to capture or kill their father based

on his past political activism. Pet. App’x at 112 (Abigail Test.); id. at 117 (Delia Test.).

The BIA agreed with the IJ that although Abigail and Delia might face some risk of

future harm at the hands of their father’s enemies and as a result of their father’s political

activism, they had failed to show that they could not reasonably relocate somewhere

outside of their small town in Guatemala where they would be safe. The BIA thus

denied their petitions because, under the INA, “[a]n applicant does not have a

well-founded fear of persecution if the applicant could avoid persecution by relocating

to another part of the applicant’s country of nationality . . . if under all the circumstances

it would be reasonable to expect the applicant to do so.” 8 C.F.R. § 1208.13(b)(2)(ii).

Abigail and Delia did not challenge in their opening brief before this court the

agency’s determination that they could internally relocate, instead arguing only that the

IJ erred in concluding that their membership in the Cruz family did not constitute a

particular social group.5 Appellant Br. at 23–27. In response to the Government’s

5

As the BIA rested its judgment solely on their ability to internally relocate, it is not the place of

this court to pass upon the particular-social-group issue in the first instance here. See INS v. Ventura, 537

U.S. 12, 16 (2002) (“Generally speaking, a court of appeals should remand a case to an agency for decision

of a matter that statutes place primarily in agency hands.”). We do note, however, that the IJ’s

determination that a family cannot constitute a particular social group is called into question by a recent

published decision from this Circuit, Al-Ghorbani v. Holder, 585 F.3d 980, 995–97 (6th Cir. 2009).

No. 09-3824 Cruz-Samayoa et al. v. Holder Page 14

argument that they have thus waived this dispositive issue before this court, however,

in their reply brief Abigail and Delia strangely assert that they did not challenge the

finding “because there was no need to do so.” Reply Br. at 9. They appear to argue that

because they believe that it was the government’s burden to show that Abigail and Delia

could avoid persecution by relocating, “there was no need to address” the IJ’s or BIA’s

conclusions that they could internally relocate. Abigail and Delia’s argument seriously

misunderstands appellate practice and review. Even if the burden of proof to show that

relocation is possible rested with the government—which, under the circumstances of

the instant case, it did not6—in order to preserve the agency’s dispositive conclusion for

appellate review, Abigail and Delia were still under an obligation to challenge the

adverse determination on some ground, whether it be because the agency misplaced the

burden of proof or on the ground that the agency’s finding simply was not supported by

substantial evidence. In failing to assert any argument challenging the agency finding

that they can internally relocate, and by, in fact, asserting that they did not “need to do

so,” the matter is waived. Bi Feng Liu, 560 F.3d at 489 n.4 (6th Cir. 2009) (“[A]n issue

that is not raised in a party’s briefs may generally be deemed waived.”). We therefore

DENY the petitions for review of the BIA’s denial of Abigail’s and Delia’s applications

for asylum and withholding of removal.7

6

According to the Federal Regulations, “In cases in which the applicant has not established past

persecution the applicant shall bear the burden of establishing that it would not be reasonable for him or

her to relocate, unless the persecution is by a government or is government-sponsored.” 8 C.F.R.

§ 1208.13(b)(3)(I); see also Rahadi v. Mukasey, 307 F. App’x 197, 203 (10th Cir. 2009) (unpublished

opinion) (“Both petitioners claim they will suffer future persecution based on their religion if removed to

Indonesia,” but, the “[p]etitioners have not met their burden of proof that they could not relocate to a

relatively safe area of Indonesia.”). In the instant case, both Abigail and Delia based their application on

a fear of future persecution and testified that they fear harm only at the hands of the Spanish farm owners

and their henchmen—i.e., neither government nor government-sponsored individuals. See Mejilla-Romero

v. Holder, 600 F.3d 63, 74–75 (1st Cir. 2010) (“Mejilla-Romero’s argument that the government failed to

produce evidence that he could safely relocate elsewhere within Honduras misplaces the burden of proof.

Having failed to show that he suffered past persecution, it was Mejilla-Romero’s burden to demonstrate

that he could not avoid future persecution by moving to another part of Honduras.”).

7

Even if we were to address the merits, we observe that Abigail and Delia have not presented any

evidence that internal relocation would not be reasonable.

No. 09-3824 Cruz-Samayoa et al. v. Holder Page 15

E. The CAT Claims Are Without Merit

Finally, we also deny the Cruz family’s petitions for review under the

Convention Against Torture. Under CAT, “removal must be withheld if ‘it is more

likely than not that [the applicant] would be tortured if removed to the proposed country

of removal.’” Haider, 595 F.3d at 289 (alteration in original) (quoting 8 C.F.R.

§ 1208.16(c)(2)). “Torture is ‘an extreme form of cruel and inhuman treatment,’” and

includes “‘any act by which severe pain or suffering, whether physical or mental, is

intentionally inflicted’ to extract information, punish, intimidate, coerce, or otherwise

discriminate, ‘when such pain or suffering is inflicted by or at the instigation of or with

the consent or acquiescence of a public official or other person acting in an official

capacity.’” Id. (quoting 8 C.F.R. § 1208.18(a)(1), (2)). An applicant for relief “need not

show that the harm she [or he] faces is based on one of the five grounds . . . required

under the INA, but rather must establish a particularized threat of torture.” Almuhtaseb,

453 F.3d at 751 (internal quotation marks omitted and emphasis added).

The IJ’s and BIA’s denial of relief under CAT is supported by substantial

evidence, and the Cruz family’s assertion and evidence that they will “quite likely,”

Appellant Br. at 36, face torture or death upon their return to Guatemala are both too

generalized and too speculative to form the basis of relief. Although the U.S.

Department of State 2006 Country Report stated that “during the year there were

credible reports of torture, abuse, and other mistreatment by PNC members,” Pet. App’x

at 170, and Dr. Vanden speculated that they could be harmed, none of this evidence

compels the conclusion that it is “more likely than not” that Cruz, Abigail, and Delia

themselves would be tortured within the meaning of CAT upon their removal to

Guatemala. The Cruz family’s CAT claims thus fail.

III. CONCLUSION

For the foregoing reasons, we deny the Cruz family’s petitions for review of their

claims for asylum, withholding of removal, and relief under the Convention Against

Torture.