In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 15-2216 

LUIS GUTIERREZ-ROSTRAN, 

Petitioner, 

v.

LORETTA E. LYNCH, Attorney General of the United States, 

Respondent. 

____________________ 

Petition for Review of an Order of the 

Board of Immigration Appeals. 

No. A200-882-317 

____________________ 

ARGUED DECEMBER 15, 2015 — DECIDED JANUARY 13, 2016 

____________________ 

Before BAUER, POSNER, and HAMILTON, Circuit Judges. 

POSNER, Circuit Judge. The petitioner, Luis GutierrezRostran, a Nicaraguan citizen, entered the United States illegally in 2006, and decided to stay. Although his stated motive for immigrating was fear that the government of Nicaragua would encourage or condone his being murdered by 

its supporters because of his and his family’s political views, 

he did not make a timely application for asylum. See 8 

U.S.C. § 1158(a)(2)(B). 
2 No. 15-2216 

In 2010 he was convicted of public intoxication and driving under the influence. After eight days in jail he was issued a Notice to Appear for immigration proceedings and 

released on bail the same day. Eventually he was ordered to 

be removed to Nicaragua. He then applied for asylum under 

8 U.S.C. § 1158, and for withholding of removal under 8 

U.S.C. § 1231(b)(3)(A) (formerly 8 U.S.C. § 1253(h)(1)(1990)) 

in the alternative. To obtain the second form of relief he had 

to show that his “life or freedom would be threatened in 

[Nicaragua] because of [his] race, religion, nationality, membership in a particular social group, or political opinion.” 

The immigration court turned him down and the Board of 

Immigration Appeals affirmed, precipitating the petition for 

review that brings his case to us. 

He challenges both the denial of his untimely asylum application and the denial of his claim for withholding of removal. Regarding the former challenge, to prevail given the 

untimeliness of the application he would have to show that 

the immigration court or the Board had committed a legal 

error, 8 U.S.C. § 1252(a)(2)(D); Restrepo v. Holder, 610 F.3d 

962, 964–65 (7th Cir. 2010), and he hasn’t done that. He argues only that violence toward persons such as him has increased in Nicaragua in recent years, thus justifying his belated application. But unfortunately for him “issues of 

changed or extraordinary circumstances are questions of fact 

that lie outside the realm of § 1252(a)(2)(D).” Aimin Yang v. 

Holder, 760 F.3d 660, 665 (7th Cir. 2014). 

So we turn to his claim for withholding of removal, and 

begin by sketching some essential background. Augusto 

César Sandino was a Nicaraguan revolutionary who between 1927 and 1933 conducted a rebellion against the U.S. 
No. 15-2216 3 

military occupation of Nicaragua. He was assassinated in 

1934 at the direction of Anastasio Somoza Garcia, who became the nation’s ruler, succeeded by his sons after he was 

assassinated. The Sandinista party, named in memory of 

Sandino, rose up against the Somozas, and under the leadership of Daniel Ortega wrested control of the country from 

them. That happened in 1979 and Ortega ruled the country 

as a dictator until 1990. He then permitted free elections, was 

repeatedly defeated, and did not achieve his old authority 

until he won (though with only a plurality of the votes) the 

presidential election held in 2006. Since then his power has 

been secure. 

Ortega’s defeats in that interim period were by the Liberal Constitutionalist Party (known as PLC from the initials of 

its Spanish name), then the main opposition party, and parties allied to it, notably the Independent Liberal Party (the 

PLI). Gutierrez-Rostran was active in one of those two parties (though it’s unclear which one), as were his father, his 

two brothers, and two uncles, one of them a mayor and the 

other a PLC representative who, Gutierrez-Rostran testified, 

“was to become a mayor as well.” 

Because of the family’s intimate connections with a political movement that had long delayed Ortega’s return to 

power, both Gutierrez-Rostran and his two brothers fled the 

country when Ortega was elected president in 2006, though 

the brothers fled not to the United States but to Costa Rica 

and Guatemala, respectively, and since fleeing have (for a 

reason we’ll explain shortly) been able to make extended visits to Nicaragua without being threatened or harassed. 

In his hearing before the immigration court on his application for withholding of removal, Gutierrez-Rostran testi-
4 No. 15-2216 

fied that his family and members of the PLI had told him 

that both his cousin and his friend had been murdered by 

the Sandinistas—in fact by the son of one of President Ortega’s bodyguards. Another friend of Gutierrez-Rostran, Rogelio Ruiz-Sotelo, testified that the cousin had received 

threats from Sandinistas, and though in response to the 

threats he had moved to a far-off city in Nicaragua he nevertheless was murdered there. Ruiz-Sotelo further testified that 

he’d attended the cousin’s funeral and heard things in the 

city that convinced him that the murderer was a Sandinista. 

(That testimony was hearsay, but hearsay is admissible in 

immigration proceedings. N.L.A. v. Holder, 744 F.3d 425, 436 

(7th Cir. 2014).) He also testified that, while a poll worker in 

an election held in 2012, he had been stoned by Sandinistas 

and forced to surrender his ballots to them, and that he had 

complained to the authorities but both the captain of police 

and the town’s mayor were Sandinistas and threatened to 

kill him if he said anything about the attack against him. (On 

the collaboration of Nicaraguan police in Sandinista violence 

against political opponents, see, e.g., Tim Rogers, “6 Dead in 

Post-Election Violence,” Nicaragua Dispatch, November 9, 

2011, http://nicaraguadispatch.com/2011/11/6-dead-in-postelection-violence/.) 

The immigration judge who presided at GutierrezRostran’s hearing denied withholding of removal on the 

ground that none of his immediate family members had 

been harmed or even threatened, and that the various articles and reports he submitted about political violence between Sandinistas and members of the opposition parties fell 

short of proving that it was more likely than not that he 

would be persecuted if he returned to Nicaragua. The Board 

affirmed the denial, discounting as “speculative” the conten-
No. 15-2216 5 

tion that the cousin’s murder had been “at the hands of the 

Sandinistas.” 

The treatment by the immigration court and the Board of 

the cousin’s murder was too cursory to justify denial of 

Gutierrez-Rostran’s application for withholding of removal. 

There was evidence of violence by Sandinistas against liberal 

party members; the cousin was a liberal from a well-known 

liberal family; and Gutierrez-Rostran’s testimony, RuizSotelo’s testimony (including his testimony that public officials—a mayor and a police chief—had refused to protect 

him against Sandinista harassment), and letters of GutierrezRostran’s parents and of PLI officials, made a prima facie 

showing that Gutierrez-Rostran would be in great danger 

were he to be returned to Nicaragua while the Sandinistas 

are in power. Although Gutierrez-Rostran’s parents, brothers, sisters, and uncles have not been persecuted, the parents 

are old (his father is 78) and neither they nor his one surviving uncle nor the sisters nor the brothers—who, remember, 

no longer live in Nicaragua—are politically active. An uncle 

of Gutierrez-Rostran who had been a liberal mayor was allowed to die in peace, but he too was old. 

Neither the immigration judge nor the (as usual) singlemember “panel” of the Board of Immigration Appeals gave 

a reason for doubting the weight or truthfulness of the evidence, evidence from which an inference could be drawn 

that Gutierrez-Rostran would indeed face a grave threat of 

suffering his cousin’s fate were he forced to return to Nicaragua. Admissible, pertinent, credible evidence can’t just be 

ignored, as the immigration court and the Board did in this 

case; reasonable grounds must exist, and be articulated, to 

justify rejection of such evidence. See, e.g., Yi-Tu Lian v. Ash-
6 No. 15-2216 

croft, 379 F.3d 457, 461–62 (7th Cir. 2004). The immigration 

judge stated in his opinion, and the Board registered no disagreement, that Gutierrez-Rostran’s testimony was “internally consistent, consistent with his written statement, and 

consistent with the other documents he submitted.” The 

immigration judge also made no adverse credibility finding 

with regard to Ruiz-Sotelo. Yet having indicated that he 

thought Gutierrez-Rostran’s testimony had been credible 

and not having suggested that Ruiz-Sotelo’s evidence was 

not credible, the immigration judge contradicted himself by 

saying that “there is no evidence to corroborate the respondent’s belief that [his cousin and friend] were killed by the 

Sandinista youth for their political beliefs.” Ruiz-Sotelo had 

testified without contradiction that Sandinistas had threatened and then killed the cousin and friend, and why would 

Sandinistas have killed them other than for political reasons? 

Against all this it can be argued that while the evidence 

indicates danger to Gutierrez-Rostran if he is returned to 

Nicaragua, it does not indicate that he is “more likely than 

not” to be persecuted if he is sent there, which the Supreme 

Court in INS v. Stevic, 467 U.S. 407, 424–25 (1984), held is the 

standard of proof for withholding of removal. See also 8 

C.F.R. § 1208.16(b)(2); Torres v. Mukasey, 551 F.3d 616, 625 

(7th Cir. 2008). That of course is the normal civil standard of 

proof. But it can’t be taken literally in the immigration context. In an ordinary civil case there are witnesses, lay and/or 

expert, on both sides of the case, and likewise documentary 

evidence. But in the usual withholding-of-removal case, including this case, the only evidence is presented by the alien—and the immigration judge appears to have deemed 

that evidence credible. 
No. 15-2216 7 

What is missing in a case like this are data that would 

enable a rational determination of whether there was a 

greater than 50 percent probability that the alien would lose 

his life or his freedom if removed to his country of origin.

Rodriguez-Molinero v. Lynch, No. 15-1860, 2015 WL 9239398, 

at *1 (7th Cir. Dec. 17, 2015). The first step in such an inquiry 

would be to define the endangered group (obviously not all

the Nicaraguans who voted for PLC or PLI candidates) and 

the second to determine what percentage of them have lost 

their life or freedom at the hands of the Sandinistas, and also 

whether that percentage is growing or declining (or not 

changing). The immigrant is required to present evidence 

that he faces a significant probability of persecution if he is 

removed to his country of origin, and Gutierrez-Rostran did 

present such evidence, as we have seen. He could not be expected to quantify the probability of his being persecuted or 

killed should he be removed to Nicaragua. The data that 

would enable such quantification appear not to exist, because to be reliable they would have to specify all persons 

who had characteristics similar to those of the applicant for 

withholding of removal and how many of them had been 

killed or persecuted because of those characteristics. If such 

data do exist somewhere, the immigration authorities or the 

State Department may have access to them, but there is no 

indication of that. 

The immigration judge may have been acknowledging 

the difficulty of taking the “more likely than not” standard 

literally as a 50+ percent probability when he said that an alien seeking withholding of removal could satisfy the standard of proof by demonstrating a “reasonable probability” of 

persecution if removed to his country of origin. That description of the standard is a step in the right direction. 
8 No. 15-2216 

The denial of withholding of removal and the affirmance 

of that denial by the BIA member who as the (entire) appeal 

“panel” denied the petitioner’s appeal were not adequately 

reasoned and so must be set aside and the case returned to 

the Board for further proceedings consistent with this opinion. The petition for asylum is dismissed, however, as noted 

earlier in this opinion.