Pablo-Sanchez v. Holder

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0087p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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SANTIAGO PABLO-SANCHEZ, MARIA

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CONSUELO BARRERA-NAVA, FANY PABLO-

BARRERA, REYNA PABLO-BARRERA, JORGE -

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No. 09-3301

PABLO-BARRERA, SANTIAGO PABLO-

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Petitioners, -

BARRERA,

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v.

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Respondent. -

ERIC H. HOLDER, JR., Attorney General,

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On Petition for Review of an Order

of the Board of Immigration Appeals.

Nos. A095-394-346/347; A072-415-044/045/046/047.

Argued: March 9, 2010

Decided and Filed: March 30, 2010

Before: GIBBONS, SUTTON and WHITE, Circuit Judges.

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COUNSEL

ARGUED: E. Dennis Muchnicki, LAW OFFICE, Dublin, Ohio, for Petitioners. Jeffrey R.

Meyer, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for

Respondent. ON BRIEF: E. Dennis Muchnicki, LAW OFFICE, Dublin, Ohio, for

Petitioners. Jeffrey R. Meyer, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Respondent.

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OPINION

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SUTTON, Circuit Judge. Santiago Pablo-Sanchez, his wife and four children, all

natives and citizens of Mexico, ask us to review a decision of the Board of Immigration

Appeals denying withholding of removal. Because the BIA permissibly determined that

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Pablo-Sanchez did not suffer mistreatment on account of his political opinions, we deny the

petition.

I.

In 1994, Pablo-Sanchez, a well-to-do artist and business owner, campaigned as the

Green Party candidate for a seat in Mexico’s Congress. His campaign encountered stiff

opposition from the then-incumbent PRI party. Hecklers, says Pablo-Sanchez, threatened

him at his campaign rallies, and he received phone messages demanding that he “stop

participating with this party or things w[ill] not go well for [your] family.” A.R. 177. One

of the hecklers, whom Pablo-Sanchez believes was affiliated with the PRI, had a distinctive

voice, which Pablo-Sanchez described as “hoarse and deep . . . and strident.” A.R. 179.

Pablo-Sanchez lost the election and soon left the Green Party due to the harassment.

In March 1996, about a year and a half later, Pablo-Sanchez visited a bank. After

he left the bank carrying a large amount of cash, muggers covered his face and assaulted and

robbed him. As his assailants beat him, Pablo-Sanchez says he heard one of the muggers say

in a familiar voice, the same one he remembered from the campaign trail, “is that what you

wanted, huh, is that what you were asking for, you want more of this.” A.R. 180–81. Later,

in November of that year, Pablo-Sanchez was mugged and beaten a second time, again,

according to his original application, after going to a bank, and again he heard “exactly the

same voice” threaten him during the assault. A.R. 181. During roughly the same time

period, a telephone caller with the familiar deep voice threatened Pablo-Sanchez and his

family. Pablo-Sanchez reported the muggings and threatening phone calls to the police, but

he had “little information for them,” and they never caught the criminals. A.R. 264. The

police did not investigate his claims, he believes, because he did not bribe them.

In April 1997, Pablo-Sanchez left Mexico and illegally entered the United States.

His wife and children remained in Mexico while gathering resources to come to the United

States, and they continued to receive threatening phone calls. Maria Consuelo Barrera-Nava,

Pablo-Sanchez’s wife, testified that the phone calls began to include details such as what she

was wearing that day and what time she had arrived home, suggesting that the individuals

responsible for the call were watching her home. Barrera-Nava described the telephone

harasser as having “a hoarse voice but it was at the same time strident.” A.R. 214. The

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harassment peaked when, after a telephone message promising a “visit,” an intruder entered

the family’s home at night and raped Barrera-Nava. A.R. 214–15. When she reported the

sexual assault to the police, they “laugh[ed]” and “li[t] a cigarette.” A.R. 216. In January

1998, Barrera-Nava and the children illegally entered the United States, joining Pablo-

Sanchez.

In January 2002, Pablo-Sanchez applied for asylum. He waited nearly five years to

file his application, he says, because he could not find anyone bilingual until then. In his

2002 application, he enlisted the help of “Mr. Viatoro,” who promised to be a “notario”

versed in immigration law. A.R. 185, 202. Signed by Pablo-Sanchez alone, the application

said nothing about political activity or persecution but instead said that “criminals” were

responsible for the harassment. A.R. 447–49. At Viatoro’s advice, Pablo-Sanchez says, he

omitted any mention of politics. When interviewed by an asylum officer in July 2005,

Pablo-Sanchez claimed not to have been involved in politics but instead said he fled from

Mexico due to frequent criminal activity against business owners.

In June 2006, Pablo-Sanchez amended his asylum application, this time with the help

of counsel. While his original application emphasized that he was on business when mugged

and included no mention of the recognizable voice, his amended application described his

political activities in detail and did not say that criminals targeted him due to his business

interests.

In April 2007, Pablo-Sanchez and his family appeared before the IJ and testified

consistently with the amended application, conceding removability, but asking for asylum,

withholding of removal and protection under the Convention Against Torture. The IJ

rejected the asylum application because Pablo-Sanchez had waited more than one year after

entering the country to file it. See 8 U.S.C. § 1158(a)(2)(B). Because Pablo-Sanchez’s

hearing testimony and amended application differed so dramatically from his original

application, the IJ found that Pablo-Sanchez was not a credible witness and denied

withholding of removal on that ground. Alternatively, the IJ concluded that, even if Pablo-

Sanchez’s testimony had been credible, he was not entitled to withholding of removal

because the alleged harassment was not “on account of” his political opinions. 8 U.S.C.

§ 1101(a)(42)(A); see id. §§ 1158(b)(1)(B), 1231(b)(3). As for the claim under the

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Convention Against Torture, the IJ ruled that Pablo-Sanchez had not proved that he or his

family faced torture at the hands of, or with the acquiescence of, public officials.

Pablo-Sanchez appealed the IJ’s decision to the Board of Immigration Appeals.

Although the Board thought the IJ had erred in disbelieving Barrera-Nava’s rape testimony,

it affirmed his credibility determination as to Pablo-Sanchez, reasoning that the IJ had “not

unreasonabl[y]” interpreted Pablo-Sanchez’s inconsistent accounts. A.R. 5. It alternatively

agreed with the IJ that, even assuming credibility, Pablo-Sanchez had not proved (1) that he

and his family suffered past persecution on account of his politics, (2) that he and his family

faced a likely threat to their lives and freedom upon return to Mexico on account of his

politics, (3) that he could not avail himself of protection from the Mexican government and

(4) that he and his family qualified for protection under the Torture Convention. Pablo-

Sanchez timely seeks review of the Board’s decision, challenging only the adverse

credibility determination and the denial of withholding of removal.

II.

Because the Board “issue[d] a separate opinion, rather than summarily affirming”

and adopting the IJ’s decision, we review the Board’s decision “as the final agency

determination.” Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009). We review agency

factual findings, whether made by the Board or the IJ, under the deferential substantial-

evidence standard, meaning that the findings are “conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see

Khalili, 557 F.3d at 435; Ben Hamida v. Gonzales, 478 F.3d 734, 736 (6th Cir. 2007)

(factual findings include credibility determinations).

To qualify for withholding of removal, Pablo-Sanchez must demonstrate that he

faces a “clear probability” of “persecution” based on his “race, religion, nationality,

membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A);

Kouljinski v. Keisler, 505 F.3d 534, 544 (6th Cir. 2007). The “clear probability” standard

asks more of the applicant than the “reasonable possibility” standard for obtaining asylum

because it requires the applicant to show that “it is more likely than not” that his life or

freedom would be threatened by persecution if he returned to his home country. Al-

Ghorbani v. Holder, 585 F.3d 980, 993–94 (6th Cir. 2009) (quotation marks omitted). An

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applicant who proves past persecution on account of his political opinion merits a

presumption of a “well-founded fear of [suffering] future persecution.” 8 C.F.R.

§ 208.13(b)(1). In this instance, Pablo-Sanchez challenges the BIA’s resolution of his

arguments about past persecution, arguing that the evidence established past persecution

based on a protected ground and therefore entitled him to a presumption of future

persecution.

Under these circumstances, to be eligible for relief or at least further inquiry on

remand, Pablo-Sanchez must show that a reasonable adjudicator would be compelled to

conclude that (1) his testimony was credible and (2) he suffered from past persecution based

on his political opinions. If he fails on either point, his petition must be rejected.

Even if we accept Pablo-Sanchez’s credibility for the sake of argument, he cannot

show that the evidence compels us to conclude that his past mistreatment was on account of

his political opinion. A petitioner must provide some evidence of his persecutor’s motive,

“direct or circumstantial.” I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483 (1992). “[I]t is not

enough to present evidence that the applicant had a political opinion . . . . Evidence must

be presented which suggests that the applicant was persecuted on account of or because of

the political opinion.” Marku v. Ashcroft, 380 F.3d 982, 986 (6th Cir. 2004).

The sole link between Pablo-Sanchez’s political opinions and the assaults and

threatening phone calls was a deep and strident voice he thought he recognized from one of

his campaign rallies 18 months earlier. Inferring a motive from this kind of evidence

requires several inferential leaps that strain the boundaries of circumstantial evidence. More

to the point, any inferences we might draw from this effort at voice identification turn on

permissible inferences, not mandatory ones.

Even if we assumed that Pablo-Sanchez’s harasser and the campaign rally heckler

were one and the same, we still would have to infer that he assaulted and robbed Pablo-

Sanchez out of political animus. That must be the case, Pablo-Sanchez says, because he

“had no other enemies.” A.R. 182. But one does not need an enemy to be the victim of a

robbery. One needs money. And Pablo-Sanchez had plenty of that when he was mugged,

because he had just left a bank after making substantial cash withdrawals before the first

robbery and, according to his original application (and not contradicted in his second), he

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had just left a bank before the second robbery. Thus, when the assailants targeted Pablo-

Sanchez for robbery and telephone harassment, it is just as likely (if not more likely) that

they were motivated by his wealth as by the partisan affiliation he had renounced 18 months

later. So long as that is the case, it is not possible to second guess the BIA’s judgment on

the ground that a reasonable adjudicator would be “compelled to conclude to the contrary.”

While the sexual assault against Pablo-Sanchez’s wife was a far more offensive

crime, it has a far more attenuated connection to his political opinions. Barrera-Nava “kept

a distance” from her husband’s political activities, A.R. 211, and linked her telephone

harasser to her husband’s politics only by offering a description of a deep voice that matched

the description offered by Pablo-Sanchez. Perhaps as a result, one might say, she could link

her rape to the telephone harassment. But she offered no description of the rapist’s voice,

much less any reason for thinking that the rapist was motivated by political animus, as

opposed to the perversity normally underlying such crimes.

Pablo-Sanchez is right that the “context of the applicant’s situation,” Gilaj v.

Gonzales, 408 F.3d 275, 285 (6th Cir. 2005) (per curiam), may permit the Board to connect

the dots of circumstantial evidence and find persecution on account of a protected ground,

see Bu v. Gonzales, 490 F.3d 424, 430 (6th Cir. 2007). But to say that the Board could find

circumstantial proof of persecution in a given case is not to say that it must—and that,

regrettably for Pablo-Sanchez, is the only inquiry with which we are tasked.

But wait, Pablo-Sanchez says, there is more: In rejecting his petition, the Board

“[i]nvented” a “novel, unprecedented position that there is no nexus between persecution and

a protected ground unless the persecutor stat[ed] his motivations while . . . in the act of

persecuting.” Br. at 20, 22. That, indeed, would be a novel rule—and an incorrect one to

boot. While it often will be the case that the surrounding circumstances of an act of

persecution (a physical assault during a demonstration or the words accompanying a

physical assault after a demonstration) will reveal a persecutor’s motive, that need not

always be the case. What is a frequent way of proving motive is not the only way. One

premise of Pablo-Sanchez’s argument, then, is correct.

The other premise is not, however. The Board never announced any such rule. In

full, its two-paragraph analysis of the past-persecution claim reads:

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Even if we assume the respondent is credible, the Immigration Judge did not

err in concluding that the respondent failed to provide a nexus between his

political affiliation and the events that occurred in Mexico (NOA; I.J. at 17,

19). In order to demonstrate that an applicant has been persecuted on

account of a political opinion, evidence must be presented which suggests

that the applicant was persecuted “on account of” the actual or imputed

political opinion. See Marku v. Ashcroft, 380 F.3d 982, 986 (6th Cir. 2004).

Thus, an applicant must show that his actions were interpreted as political

by the alleged persecutors. See id. at 987. An applicant is not expected to

provide direct proof of the alleged persecutor’s motive, but must show some

evidence of it, direct or circumstantial (Respondent brief at 19). Id.

In this case, the lead respondent testified that during his alleged incidents of

physical harm, he recognized the deep, hoarse voice of the political

opponent previously heard while he campaigned as a Green Party candidate

in 1994 (Respondent brief 19; Tr. at 38, 41–44, 57–60). The lead

respondent also stated that but for his political activities which ended in

1994, he had no reason to suffer or fear harm (Respondent brief at 19; I.J.

at 6; Tr. at 44–45). The lead respondent’s wife also stated that the telephone

threats she received after April 1997, and the voice heard outside her house,

were from a man with the same hoarse, deep voice described by her husband

(Respondent brief at 19; Tr. at 75–76). The lead respondent’s wife related

that she believed she identified her rapist because on one occasion, the caller

with the hoarse, deep voice, expressed that she would be receiving a visitor

(Respondent Br. at 19; Tr. at 81). The respondents’ beliefs however are

insufficient to establish the motive of the attackers. In this respect, the

Immigration Judge stated that even if a political opponent was responsible

for physically harming the respondents, specific references to the

respondents’ actual or imputed political opinion or membership in a

particular social group were never uttered during the aforementioned

incidents (Respondent brief at 5–6, 11–12, 20; I.J. at 5, 11, 17–18; Tr. at

42–43, 46, 74, 81). Therefore, the Immigration Judge’s finding that the lead

respondent had not provided a nexus between the harm suffered and a

protected ground is not erroneous.”

A.R. 5.

The first paragraph of this analysis describes the legal requirements for establishing

a claim of past persecution, and the Board plainly invents no new rule of proof in doing so.

It correctly says that “[a]n applicant is not expected to provide direct proof of the alleged

persecutor’s motive,” whether before, during or after the persecution, “but must show some

evidence of it, direct or circumstantial.” (Emphasis added). That an applicant need not

provide “direct proof” of motive negates the subsidiary possibility of requiring an applicant

to provide direct proof during the act of persecution. The second paragraph of this analysis

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applies the law to the facts, and the Board properly explains that the record contains no

evidence of motive since Pablo-Sanchez’s short stint in politics in 1994, including any

evidence of motive that could have come during the acts of violence and harassment.

If read by themselves, it is true, the last two sentences of the second paragraph might

support Pablo-Sanchez’s reading. But context is everything. When read in the surroundings

of the full two-paragraph analysis, the two sentences do not indicate that the Board, in

applying the law to the facts of the case, suddenly invented a new persecutor-motive rule.

The Board does not cite any cases, only the record, in making these points, indicating it was

applying the previously announced, and correctly announced, legal principles identified in

the first paragraph of its analysis. One of the record citations, moreover, is to the IJ’s

opinion at the very pages (IJ at 17–18) where the IJ properly speaks about the absence of any

evidence of political motive in connection with any of the assaults and where the IJ does not

say that cognizable evidence of political motive may arise only during an act of persecution.

See Khalili, 557 F.3d at 435 (“To the extent the BIA adopted the immigration judge’s

reasoning, however, this Court also review the immigration judge’s decision.”); Joseph v.

Attorney General, 421 F.3d 224, 226 n.4 (3d Cir. 2005) (“Although we are reviewing the

decision of the BIA, not that of the IJ, the BIA’s ruling cannot be understood in a vacuum,

given its analysis. Thus, we must refer to the IJ’s analysis in order to provide the proper

context and background for our analysis of the BIA’s ruling.”).

When all is said and done: the alleged persecution took place more than a year and

a half after Pablo-Sanchez ended his brief foray in politics; the evidence of motive required

the factfinder to jump through several inferential hoops; and run-of-the-mine criminal

depravity by itself provides at least as plausible an explanation, if not a more plausible

explanation, for the unfortunate mistreatment of Pablo-Sanchez and his family. That does

not suffice to conclude that the Board necessarily decided this case wrongly.

III.

For these reasons, we deny the petition for review.