NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 15a0267n.06

No. 14-3741

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ERLIN GONZALEZ-ISAGUIRRE,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

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ON PETITION FOR REVIEW

OF AN ORDER OF THE

BOARD OF IMMIGRATION

APPEALS

OPINION

BEFORE: SILER, MOORE, and STRANCH, Circuit Judges.

KAREN NELSON MOORE, Circuit Judge. Erlin Gonzalez-Isaguirre petitions this 

court to review the denial of his application for withholding of removal and Convention Against 

Torture (“CAT”) relief by an immigration judge (“IJ”) and the Board of Immigration Appeals 

(“BIA”).

1

 The IJ found Gonzalez-Isaguirre to be not credible and, even assuming credibility, 

found his application for relief to be without merit. The BIA affirmed, in an opinion largely 

concurring with the reasoning of the IJ’s decision. Because we agree with the BIA’s merits 

determination, we DENY Gonzalez-Isaguirre’s petition for review.

 

1Gonzalez-Isaguirre initially applied for asylum as well. Both the IJ and the BIA, 

however, found Gonzalez-Isaguirre ineligible for such relief because he filed his application 

more than a year after his arrival in the United States and did not provide sufficient evidence to 

qualify for an exception to this filing requirement. See BIA Dec. at 2 (C.A.R. at 4); 8 U.S.C. 

§ 1158(a)(2)(B). Gonzalez-Isaguirre does not contest this finding on appeal, and concedes that 

he is ineligible for asylum. See Pet’r Br. at 23 n.3.
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I. BACKGROUND

Gonzalez-Isaguirre is a thirty-eight year old native of Nicaragua. He left that country in 

2003, purportedly to escape persecution for his political opposition to the Sandinista party. IJ 

Hr’g Tr. at 18–19 (C.A.R. at 118–19). According to Gonzalez-Isaguirre, his family has long 

been opposed to the Sandinistas. Id. at 21–23 (C.A.R. at 121–23). He testified specifically about 

the experiences of his uncles Fabian, Julio, and Avelio. According to Gonzalez-Isaguirre, Fabian 

was a bodyguard to Anastasio Somoza DeBayle, the political leader of Nicaragua prior to the 

Sandinista government’s coming into power. Id. at 25 (C.A.R. at 125). Fabian was allegedly 

imprisoned for ten years for his relationship with Somoza; he has since been released. Id. at 25, 

55 (C.A.R. at 125, 155). Gonzalez-Isaguirre also spoke about a second uncle who was killed in 

the Nicaraguan civil war, between 1980 and 1990. Id. at 27, 53 (C.A.R. at 127, 153). GonzalezIsaguirre could not initially recall this uncle’s name, but eventually confirmed that his name was 

Julio, after his attorney referred to a letter of support submitted by Gonzalez-Isaguirre’s mother

mentioning Julio’s name. Id. at 46 (C.A.R. at 146). Finally, Gonzalez-Isaguirre discussed a 

third uncle, Avelio, who checked into the hospital in 1985 at age fifteen with a broken arm. Id. 

at 28 (C.A.R. at 128). Avelio died of cerebral hypoxia, which Gonzalez-Isaguirre alleges “was 

[an] intentional political act [by the hospital] and not basically medical malpractice.” Id. at 29 

(C.A.R. 129). When asked to provide evidence of this attributed intent, however, GonzalezIsaguirre conceded that “I don’t, I don’t have any proof.” Id. at 30 (C.A.R. 130).
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Later, when asked if there were any other members of his family, outside of his uncles, 

who “had harm done to them because of their opposition to the Sandinistas,” Gonzalez-Isaguirre 

responded that “only my mother had some threats.” Id. According to Gonzalez-Isaguirre, his 

mother has been threatened with violence since 1980, when the Sandinistas first came into 

power. These threats usually spike around election time; in some instances, Sandinista 

supporters have thrown stones at Gonzalez-Isaguirre’s house. Id. at 34 (C.A.R. at 134). 

Gonzalez-Isaguirre also stated that his mother was “pushed by [a] soldier with [a] weapon” when 

she tried to retrieve Avelio’s body from the hospital in 1985. Id. at 32 (C.A.R. at 132). “Nobody 

has hit her,” however, since at least 2006. Id. at 45 (C.A.R. at 145). Gonzalez-Isaguirre’s 

mother, father, and sister all currently live in Ciudad Dario, Nicaragua, Gonzalez-Isaguirre’s 

hometown. Id. at 19 (C.A.R. at 119).

Finally, with respect to incidents against himself, Gonzalez-Isaguirre’s account varies. In 

a two-page attachment to his I-589 application, which he prepared with the assistance of counsel, 

Gonzalez-Isaguirre mentions only the incidents against his uncles and his mother, without 

discussing any persecution that he personally faced. During his IJ hearing, however, GonzalezIsaguirre described having “stones, knives, [and] even bullets” thrown at him for speaking out 

against the Sandinistas. Id. at 35 (C.A.R. at 135). He conceded, however, that he had “not 

received physical harm” as a result of any of these incidents. Id. Later, in response to a question 

about whether he had ever been physically wounded, Gonzalez-Isaguirre stated that “[n]o, I, I 

have received, you know, blows or hits, but not, not, nothing that had caused a break of any 
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kind.” Id. at 41 (C.A.R. at 141). He explained that the omission of these incidents in his I-589

was likely the result of a miscommunication with his attorney. Id. at 38–39 (C.A.R. at 138–39).

If returned to Nicaragua, Gonzalez-Isaguirre believes that Sandinista supporters will hurt 

him because of his prior political activity, id. at 46 (C.A.R. at 146), even though he admitted that 

he was no longer a member of any political party, id. at 21 (C.A.R. at 121), and even though the 

PLC, the party that Gonzalez-Isaguirre most closely identifies with, currently holds several seats 

in the Nicaraguan government. Gonzalez-Isaguirre did not discuss at his IJ hearing any past 

incidents of torture against either him or his family members.

The IJ denied Gonzalez-Isaguirre’s application for withholding of removal and CAT 

relief. In an oral decision, the IJ found Gonzalez-Isaguirre to be not credible, after hearing him 

describe in detail the personal persecution he suffered in Nicaragua—a description 

uncorroborated by the evidence contained in his I-589 application. IJ Dec. at 10–11 (C.A.R. at 

71–72). The IJ also concluded that Gonzalez-Isaguirre’s withholding claim would fail on the 

merits—i.e., even if found credible, Gonzalez-Isaguirre had failed to demonstrate that he would 

more likely than not be persecuted if returned to Nicaragua. Id. at 14 (C.A.R. at 75). The IJ 

noted that Gonzalez-Isaguirre had provided no evidence of having suffered physical harm at the 

hand of the Sandinistas, and that, by his own admission, his family members—his uncle, his 

parents, and his sister—were now living unharmed in Nicaragua. Id. at 15 (C.A.R. at 76). The 

IJ likewise denied Gonzalez-Isaguirre’s request for CAT relief. In a three-page reasoned 
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opinion, the BIA affirmed the IJ’s order, substantially echoing the IJ’s analysis. This petition for 

review timely followed.

II. ANALYSIS

A. Standard of Review

“Where the BIA reviews the immigration judge’s decision and issues a separate opinion, 

rather than summarily affirming the immigration judge’s decision, we review the BIA’s decision 

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

However, “[t]o the extent the BIA adopted the immigration judge’s reasoning,” we “review the 

immigration judge’s decision.” Id. We review legal conclusions made by the BIA and the IJ de 

novo, giving “substantial deference” to their “interpretation of the INA and accompanying 

regulations,” and review their factual findings for substantial evidence. Urbina-Mejia v. Holder, 

597 F.3d 360, 364 (6th Cir. 2010). “We cannot reverse such [factual] findings simply because 

we would have decided them differently.” Id. Rather, these findings are “conclusive unless any 

reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. 

§ 1252(b)(4)(B).

B. Withholding of Removal

Gonzalez-Isaguirre contends that, in finding him to be not credible, the BIA and the IJ 

overlooked our decision in Liti v. Gonzales, 411 F.3d 631 (6th Cir. 2005). In that case, we 

overturned the IJ’s adverse credibility determination because we determined that the generalized 

statements in Liti’s asylum application did not contradict the more specific testimony that Liti 
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subsequently gave at his removal hearing. Id. at 637–39. The government contends, on the other 

hand, that these cases are factually distinguishable. Unlike petitioner in Liti, for instance, 

Gonzalez-Isaguirre “went to the effort [of] add[ing] pages [to his application] that separately 

detail specific incidents that support his claim.” Resp’t Br. at 21. These pages make no 

reference, however, to any sort of persecution committed against Gonzalez-Isaguirre. See 

(Addendum to I-589 Application at 1–2) (C.A.R. 326–27).

While true, we are not certain that this fact alone provides a clear answer to the question 

at hand—whether an IJ can make an adverse credibility determination based on a petitioner 

providing facts at his removal hearing that supplement (rather than contradict) the account given

in his I-589 application. In any event, we need not decide whether Liti applies to this case, 

because we think that the IJ and the BIA correctly determined that Gonzalez-Isaguirre would not 

qualify for withholding of removal under the INA even if he were deemed credible.

In order “[t]o 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 

would be subject to persecution on the basis of his “race, religion, nationality, membership in a 

particular social group, or political opinion.” Almuhtaseb v. Gonzales, 453 F.3d 743, 749 (6th 

Cir. 2006) (citations omitted). A petitioner can meet this burden by either providing evidence of 

past persecution (thereby creating a rebuttable presumption of future persecution) or by showing

that he will more likely than not be subject to persecution if returned to his native country. 8 

C.F.R. § 1208.16(b). Gonzalez-Isaguirre has done neither.
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With respect to past persecution, Gonzalez-Isaguirre has conceded that he was not 

physically harmed on the basis of his political beliefs. He did state that he had stones, knives, 

and bullets thrown (but not fired) at him, and that sometimes Sandinista members would throw 

stones at his house. But these actions are far more consistent with the sort of “isolated incidents 

of verbal harassment or intimidation, unaccompanied by any physical punishment, infliction of 

harm, or significant deprivation of liberty,” Mikhailevitch v. I.N.S., 146 F.3d 384, 390 (6th Cir. 

1998), that we have held do not constitute persecution than the sort of “actions that [we have 

held] might cross the line from harassment to persecution,” such as “detention, arrest, 

interrogation, prosecution, imprisonment, illegal searches, confiscation of property, surveillance, 

beatings, or torture.” Gilaj v. Gonzales, 408 F.3d 275, 285 (6th Cir. 2005). The IJ and the BIA 

did not err in finding an absence of past persecution.

The IJ and the BIA also did not err on the issue of future persecution. Gonzalez-Isaguirre 

concedes that he is no longer a formal member of any political party in Nicaragua. Moreover, as 

the BIA observed, the PLC—the party with which Gonzalez-Isaguirre was most closely 

affiliated—currently holds several seats within the Nicaraguan government, and appears to be an 

established player in Nicaraguan politics. BIA Dec. at 3 (C.A.R. at 5). Finally, GonzalezIsaguirre’s immediately family—his mother, father, and sister—continue to live in Ciudad Dario,

Gonzalez-Isaguirre’s hometown. None appear to have suffered persecution at the hands of the 

current government. Fabian, an uncle who was allegedly imprisoned in 1990 or 1991 for ten 

years for his political beliefs, has remained politically active since his release and—based on the 
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evidence provided—does not appear to have suffered persecution as a result of this activity. The 

BIA and the IJ decision denying Gonzalez-Isaguirre’s request for withholding of removal was 

supported by substantial evidence.

C. Convention Against Torture

Gonzalez-Isaguirre is likewise ineligible for CAT relief. To qualify for such relief, “an 

alien need not show that the harm [he or] she faces is based on one of the five grounds (race, 

religion, nationality, social group, political opinion) required under the INA, but rather must 

establish a ‘particularized threat of torture.’” Almuhtaseb, 453 F.3d at 751; see also id. at 749 

(“[T]o be eligible for . . . CAT [relief], the applicant bears the burden of establishing [that] it is 

more likely than not that he or she would be tortured if removed to the proposed country of 

removal.”) (internal quotation marks omitted). The relevant administrative regulations define

torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally 

inflicted on a person” and as “an extreme form of cruel and inhuman treatment” that “does not 

include lesser forms of cruel, inhuman or degrading treatment or punishment.” 8 C.F.R. 

§ 1208.18(a).

The weight of the evidence does not support an inference of future torture in this case. 

The record contains no evidence of past torture inflicted upon Gonzalez-Isaguirre. See 8 C.F.R. 

§ 1208.16(c)(3) (listing past torture as a factor that should be considered in making likelihoodof-future-torture determinations). Nor does the record here contain any evidence “of gross, 

flagrant or mass violations of human rights” in Nicaragua or other evidence supporting an 
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inference of torture if Gonzalez-Isaguirre is returned to Nicaragua. See id. The BIA and the IJ’s 

decision denying CAT relief to Gonzalez-Isaguirre was supported by substantial evidence.

III. CONCLUSION

For the foregoing reasons, we DENY Gonzalez-Isaguirre’s petition for review.