Maria Guaman-Loja v. Eric H. Holder, Jr., Attorney General

United States Court of Appeals
For the First Circuit
No. 11-2253
MARIA GUAMAN-LOJA,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Boudin and Lipez, Circuit Judges. *
Brian Monahan and Ross & Associates on brief for petitioner.
Tony West, Assistant Attorney General, Civil Division, Anthony
C. Payne and Tiffany L. Walters, Office of Immigration Litigation,
on brief for respondent.
February 7, 2013
Judge Boudin participated in the semble in this matter, but *
he did not participate in the issuance of the panel's opinion. The
remaining two panelists therefore issued the opinion pursuant to 28
U.S.C. § 46(d).

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LIPEZ, Circuit Judge. Maria Guaman-Loja, a native and
citizen of Ecuador, entered the United States without being
admitted or paroled. She was placed into removal proceedings and
filed applications for asylum, withholding of removal, and relief
under the Convention Against Torture ("CAT"). An immigration judge
("IJ") denied Guaman-Loja's applications for relief, and the Board
of Immigration Appeals ("BIA") subsequently dismissed her appeal.
Guaman-Loja now petitions for review of the BIA's order. Under the
deferential standard of review we accord to the agency's
factfinding, we deny the petition.
I.
We briefly recount the facts found by the agency.
Guaman-Loja is an Ecuadorian woman of indigenous descent whose
primary language is Quechua. After completing her education, she
became active in the organization of fellow indigenous people in
her local community during the 1980s. These activities were
primarily literacy-related and she spent much of her time teaching
fellow indigenous people how to read and write.
Due to Guaman-Loja's activities, she and her family
received a number of threats from individuals of Mestizo ancestry.1
On one occasion, one of these individuals slapped Guaman-Loja in
the face and warned her that she should cease her community and
Although the term "Mestizo" carries multiple definitions, 1
Guaman-Loja used the word to refer to individuals with Spanish
ancestry.
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educational activities. Guaman-Loja testified that her family 2
members were assaulted and also threatened.
Guaman-Loja and her husband attempted to relocate within
Ecuador on several occasions to escape further threats. Her
alleged persecutors continued to seek her out and threaten her.
Fearing for her continued safety, she entered the United States
without inspection on or about April 10, 2003.
When she was later placed into removal proceedings, she
applied for asylum, withholding of removal, and relief under CAT in
May 2006. The IJ held a hearing on the matter, where Guaman-Loja
was the only witness. At the hearing's end the IJ issued an oral
decision denying Guaman-Loja's application for asylum on two
grounds. First, the IJ held that her application had not been
filed within one year of her entry into the United States, as
required by statute, and that she had not demonstrated changed
circumstances justifying waiver of that requirement. Second, the
IJ denied her application on the merits. The IJ ruled that the
harms Guaman-Loja had suffered in Ecuador were not drastic enough
to rise to the level of persecution, and that she had failed to
demonstrate a fear of future persecution if she returned.
Additionally, nothing in the record indicated that the harassment
Although the IJ's decision discusses only one incident when 2
Guaman-Loja was physically struck, Guaman-Loja avers in an
affidavit that the same woman struck her while she was visiting her
family in 2002, a number of years after the incident mentioned in
the IJ's decision.
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she experienced had come about as a result of government action or
inaction.
Guaman-Loja appealed to the BIA, which upheld the IJ's
decision. As to the timely filing of her application, the BIA
ruled that Guaman-Loja had "not shown extraordinary circumstances
for the delay" in seeking asylum, a showing that could have avoided
application of the one-year bar. As for the merits of Guaman-
Loja's claim, the BIA stated that she had not demonstrated that she
had suffered persecution, or that mistreatment of indigenous people
in Ecuador "is so systemic or pervasive as to amount to a pattern
or practice of persecution" on the part of the Ecuadorian
government. This timely appeal followed.
II.
We review on appeal "the BIA's decision as well as any
portions of the IJ's opinion adopted by the BIA." Peña-Beltre v.
Holder, 622 F.3d 57, 61 (1st Cir. 2010). We examine the BIA's
legal conclusions de novo and its factual findings under the
substantial evidence standard, Soeung v. Holder, 677 F.3d 484, 487
(1st Cir. 2012), accepting the agency's factfinding unless the
evidence "would compel a reasonable factfinder to reach a contrary
conclusion." Seng v. Holder, 584 F.3d 13, 17 (1st Cir. 2009).
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A. Guaman-Loja's Claims of Persecution
Guaman-Loja contends that the agency erred in concluding
that she was ineligible for asylum. A noncitizen seeking asylum 3
"must establish his or her status as a refugee." Soeung, 677 F.3d
at 487. A refugee is defined as a noncitizen who is unwilling or
unable to return to her country of origin "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). "A showing of past
persecution gives rise to a rebuttable presumption of future
persecution." Vanchurina v. Holder, 619 F.3d 95, 99 (1st Cir.
2010). Absent evidence of past persecution, a petitioner must
provide "specific proof" that his or her fear of future persecution
"is both subjectively genuine and objectively reasonable." Decky
v. Holder, 587 F.3d 104, 110 (1st Cir. 2009) (quoting Castillo-Diaz
v. Holder, 562 F.3d 23, 26 (1st Cir. 2009)) (internal quotation
marks omitted).
Guaman-Loja challenges the threshold determination that her 3
asylum application was untimely filed, citing the BIA's apparent
application of the "extraordinary circumstances" exception to the
one-year bar. See 8 C.F.R. § 1208.4(a)(5). The agency may have
mistakenly addressed a claim that Guaman-Loja did not actually
make; she in fact attempted to invoke the "changed circumstances"
exception, which requires a different showing. See id. §
1208.4(a)(4). Because the agency denied her asylum claim on the
merits, however, we need not address the significance of this
possible error. See Beltrand-Alas v. Holder, 689 F.3d 90, 94 (1st
Cir. 2012) (upholding BIA's decision on one independent ground and
declining to address alternative ground of agency decision); Matos-
Santana v. Holder, 660 F.3d 91, 94 n.2 (1st Cir. 2011) (same).
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We have stated that a noncitizen must have experienced
something more than "ordinary harassment, mistreatment, or
suffering" to demonstrate persecution. Lopez de Hincapie v.
Gonzales, 494 F.3d 213, 217 (1st Cir. 2007). "The severity,
duration, and frequency of physical abuse are factors relevant to
this determination, as is whether harm is systematic rather than
reflective of a series of isolated incidents." Barsoum v. Holder,
617 F.3d 73, 79 (1st Cir. 2010) (citations omitted) (internal
quotation marks omitted).
Guaman-Loja bases her asylum claim on her activities on
behalf of the indigenous community of Ecuador. The agency examined
Guaman-Loja's evidence regarding the threats she had received from
individuals who wanted her to cease her educational activities, as
well as the physical assaults she had experienced. This evidence 4
does indicate that she personally experienced threats and
harassment on multiple occasions. However, the record supports the
conclusion that these incidents, while no doubt burdensome and
troubling, were not severe or frequent enough to amount to
Although the IJ is typically required to determine whether 4
an asylum applicant's testimony is credible, "[t]he lack of a
credibility determination is a cause for concern only when a claim
turns on the veracity of the alien." Morgan v. Holder, 634 F.3d
53, 57 (1st Cir. 2011). Here, the IJ appears to have accepted all
of Guaman-Loja's testimony, but concluded that it was insufficient
to establish her status as a refugee. "[A] credibility
determination is superfluous when the alien's testimony, even if
taken at face value, is insufficient to compel an entitlement to
relief." Id.
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persecution. The record also includes evidence regarding assaults
on some of her family members, but it appears that the last of
these attacks occurred in 1991, about twelve years before she came
to the United States. Even assuming that these attacks were
connected to her family members' political affiliations, the
ability of petitioner and her family members to avoid harassment
for such a lengthy period of time undermines any inference of
persecution. We therefore agree that "[t]he BIA was not compelled
to find that the harms [the petitioner] suffered, even viewed
collectively, rose to the level of persecution." Barsoum, 617 F.3d
at 80.
Guaman-Loja asserts that the agency made an error of law
when it excluded evidence of psychological and emotional harm from
its calculus. See Makhoul v. Ashcroft, 387 F.3d 75, 80 (1st Cir.
2004) ("[W]e acknowledge that, under the right set of
circumstances, a finding of past persecution might rest on a
showing of psychological harm."). Nothing in the agency's opinion
supports the contention that it did so, however. In fact, the BIA
explicitly addressed the threats made to Guaman-Loja and her family
members, concluding that they did not "amount to persecution."
Although the BIA's opinion was relatively brief, "we will not
require that it address specifically each claim the petitioner made
or each piece of evidence the petitioner presented." Martinez v.
INS, 970 F.2d 973, 976 (1st Cir. 1992). Without any indication
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that the agency erroneously refused to consider certain aspects of
her testimony, Guaman-Loja's argument reduces to a dispute with the
agency's factfinding. As we have explained, we see no issue with
the agency's view of the facts.
Without evidence of past persecution, Guaman-Loja is not
entitled to a presumption that she will face future persecution.
Anacassus v. Holder, 602 F.3d 14, 21 (1st Cir. 2010). Guaman-
Loja's evidence of likely future persecution is similarly
insufficient. She cites her brother, who purportedly left Ecuador
and came to the United States due to discrimination he had suffered
because of his indigenous background. This brother subsequently
returned to Ecuador, where he died in a car accident under
mysterious circumstances in October 2008. Although Guaman-Loja
seeks to link his death to his political activity on behalf of
indigenous individuals, this theory of his death relies entirely on
speculation and inferences. "Merely identifying alternative
findings that could be supported by substantial evidence is
insufficient to supplant the [IJ's] findings." Albathani v. INS,
318 F.3d 365, 372 (1st Cir. 2003). Accordingly, we discern no
error in the agency's conclusion as to future persecution as well.
B. State Involvement in Guaman-Loja's Persecution
Although our analysis could end here, the BIA stated
another independent reason why Guaman-Loja had failed to
demonstrate her status as a refugee. Even assuming that she had
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suffered harms amounting to persecution, she adduced no evidence
connecting the harassment she had experienced with government
action or inaction. In order to qualify as a refugee, Guaman-Loja
must have suffered "persecution that is the direct result of
government action, government-supported action, or government[]
unwillingness or inability to control private conduct." Nikijuluw
v. Gonzales, 427 F.3d 115, 121 (1st Cir. 2005); see also Barsoum,
617 F.3d at 79 ("The state must also be implicated, whether by
participation or acquiescence, for harm to amount to
persecution."). Although a state may sanction persecution through
inaction, the petitioner must demonstrate that "the government . .
. would have been unwilling or unable to pursue these lines of
redress on [the petitioner's] behalf." Castillo-Diaz, 562 F.3d at
28.
Once again we locate no error in the agency's factfinding
on this subject. The individuals who allegedly persecuted Guaman-
Loja were without an apparent connection to the government, and
Guaman-Loja never sought aid or protection from the police or local
authorities. See id. at 27-28; see also Galicia v. Ashcroft, 396
F.3d 446, 448 (1st Cir. 2005) (affirming finding that petitioner
"did not show that the harassment he suffered was by the government
or a group the government could not control" where petitioner did
not inform authorities of his attack).
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Although Guaman-Loja testified in conclusory fashion that
she believed the police would not protect her unless she bribed
them, she did not elaborate on this statement or explain it in any
detail. Instead, she relies on a U.S. State Department country
conditions report indicating that indigenous people in Ecuador face
discrimination and that political violence of various kinds is a
consistent problem. The BIA considered this report, but concluded
that it did not demonstrate that this discrimination rose to the
level of systemic persecution. The BIA also noted that the report
failed to show that the "government is unable or unwilling to
control" the conduct of private actors. Our review of the report
reveals a sound basis for these findings, as the discrimination
against indigenous individuals in Ecuador is offset at least in
part by the community's growing political strength and various
reforms designed to make the nation's society more open to people
of indigenous descent. Consequently, the agency did not err in
concluding that she had failed to establish her eligibility for
asylum.
C. Guaman-Loja's Remaining Claims
Because Guaman-Loja has failed to demonstrate that she is
eligible for asylum, her claims for withholding of removal and
relief under CAT also fail. See Singh v. Mukasey, 543 F.3d 1, 7
(1st Cir. 2008) (observing that claims for withholding and CAT
protection "place a higher burden of proof on the petitioner than
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a counterpart claim for asylum" and stating that petitioner's
failure to establish eligibility for asylum similarly doomed those
claims); Barsoum, 617 F.3d at 80-81 (same).
For the reasons stated, the petition is denied. So
ordered.
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