United States Court of Appeals

For the First Circuit

No. 11-2167

JOSE ARTURO PERLERA-SOLA,

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, Circuit Judge,

and McConnell, Jr., District Judge. *

Robert M. Warren was on brief for the petitioner.

Lindsay M. Murphy, Office of Immigration Litigation, Civil

Division, Department of Justice, with whom Stuart F. Delery, Acting

Assistant Attorney General, Civil Division, and Song Park, Senior

Litigation Counsel, Office of Immigration Litigation, were on brief

for respondent.

November 9, 2012

Of the District of Rhode Island, sitting by designation. *
McCONNELL, District Judge. Petitioner Jose Perlera-Sola

(“Mr. Perlera” or “petitioner”), is a native of El Salvador. He

seeks judicial review of a final order of removal issued by the

Board of Immigration Appeals (“BIA”) denying his application for

asylum, withholding of removal, and protection under Article III of

the United Nations Convention Against Torture (“CAT”). After

careful consideration, we deny the petition for review.

I. Background

Petitioner is a native of El Salvador who entered the

United States without inspection on December 19, 2007 at the age of

seventeen. The Court will first consider the events that

transpired prior to petitioner’s entry into the United States.

Mr. Perlera’s family owned a pig farm in El Salvador from

1998 until 2007. On July 8, 2006, Mr. Perlera’s father, Francisco 1

Perlera-Sola was driving to Santa Tecla to purchase feed for the

farm animals when he was stopped in the middle of a road by unknown

assailants, who shot him three times. The bullets pierced him in

his left arm, upper back, and hip. Mr. Perlera’s father spent

several months in the hospital recovering from the shooting.

During the year following the shooting, the petitioner

witnessed unknown vehicles drive by his home and received phone

calls threatening the lives of his family if they remained in the

These events are derived from petitioner’s testimony before 1

the Immigration Judge (“IJ”).

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area. Ultimately, Mr. Perlera and his family decided to leave El

Salvador in December of 2007 because they felt it was too dangerous

to remain. Mr. Perlera also testified that friends currently

living on his family’s farm in El Salvador have informed him that

suspicious vehicles continue to drive by the farm.

Shortly after Mr. Perlera entered the United States

without inspection, the Department of Homeland Security (“DHS”)

served him with a Notice to Appear (“NTA”) and placed him into

removal proceedings before the Boston Immigration Court on January

3, 2008. Mr. Perlera was charged with removability under INA

§ 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), as an alien who is

present in the United States without being admitted or paroled. 

Mr. Perlera conceded his removability and applied for asylum,

withholding of removal, and CAT protection.

At the IJ hearing on October 30, 2009, Mr. Perlera was

represented by counsel and testified in support of his statements. 

At his hearing, Mr. Perlera contended he was eligible for political

asylum and withholding of removal pursuant to 8 U.S.C.

§ 1101(a)(42)(A) because he had established past persecution and a

well-founded fear of future persecution based on his membership in

a particular social group - his family. Mr. Perlera argues that

his family’s perceived wealth was the reason for the attack on his

father and the ensuing drive-bys and continuous telephonic threats. 

Mr. Perlera argues that his family could not remain in El Salvador

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because there was a clear threat of imminent danger. Moreover, he

asserted that the Salvadorian government failed to investigate the

crime or protect the family in any capacity.

After considering Mr. Perlera’s arguments, the IJ denied

Mr. Perlera’s application and ordered his removal. The IJ

concluded that while Mr. Perlera’s testimony was credible, the

facts did not support his asylum application or other claims for

relief. He failed to establish past persecution or a well-founded

fear of future persecution. The IJ concluded there appeared to

have been an attempt to rob the father by armed delinquents. The

IJ found the death threats and demands that the father leave El

Salvador were most probably because the father’s assailants feared

they would be prosecuted and did not want the father to identify

them. Petitioner has not shown he was a refugee. Further, even if

the IJ were to find that Mr. Perlera had suffered past persecution,

he had not shown it was attributable to one of the five protected

areas as a central reason (or any acquiescence by the El Salvador

government). The BIA agreed, and noted the lack of evidence in

support of his position, such as his failure to identify the

assailants or their motives, failure to provide a copy of a police

report based on the incident he reported to the police in El

Salvador, and failure to provide any of his father’s hospital

records or affidavits from his friends in El Salvador alleging that

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unknown vehicles routinely drive by his home. Therefore, the IJ

and BIA concluded Mr. Perlera did not qualify for asylum.

On September 7, 2011, the BIA affirmed the IJ’s decision,

dismissing petitioner’s appeal. Mr. Perlera timely filed a

petition for review with this court.

II. Discussion

We begin our consideration of Mr. Perlera’s case with the

applicable standard of review. When the BIA adopts and affirms the

IJ’s ruling but also examines some of the IJ’s conclusions, this

Court reviews both the BIA’s and IJ’s opinions. Matovu v. Holder,

577 F.3d 383, 386 (1st Cir. 2009). This Court will “apply the

‘substantial evidence’ standard and defer to those findings of fact

that are ‘supported by reasonable, substantial, and probative

evidence on the record considered as a whole.’” Lobo v. Holder,

684 F.3d 11, 16 (1st Cir. 2012) (quoting Nikijuluw v. Gonzales, 427

F.3d 115, 120 (1st Cir. 2005)); I.N.S. v. Elias-Zacarias, 502 U.S.

478, 481 (1992). “The BIA’s legal conclusions are evaluated de

novo, with deference given ‘to the BIA’s reasonable interpretations

of statutes and regulations falling within its purview.’” Aponte

v. Holder, 683 F.3d 6, 10 (1st Cir. 2012) (quoting Matos-Santana v.

Holder, 660 F.3d 91, 93 (1st Cir. 2011)). “In the end, we may only

set aside the agency’s determination if the ‘evidence points

unerringly in the opposite direction.’” Lobo, 684 F.3d at 16

(quoting Laurent v. Ashcroft, 359 F.3d 59, 64 (1st Cir. 2004)).

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The petitioner carries the burden to show that he is a

refugee under the immigration laws. See 8 U.S.C.

§ 1158(b)(1)(B)(I); Nikijuluw, 427 F.3d at 120. In order to meet

this burden, the petitioner must show that he is unable to go back

to El Salvador due to “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). Where a petitioner establishes past persecution,

he “creates a rebuttable presumption that a well-founded fear of

future persecution endures.” Guerrero v. Holder, 667 F.3d 74, 77

(1st Cir. 2012); 8 C.F.R. § 1208.13(b)(1).

This Court has held that persecution “encompasses more

than threats to life or freedom, but less than mere harassment or

annoyance.” Aguilar-Solis v. I.N.S., 168 F.3d 565, 570 (1st Cir.

1999) (internal citations omitted). The petitioner’s experiences

must “add up to more than mere discomfiture, unpleasantness,

harassment, or unfair treatment.” Nikijuluw, 427 F.3d at 120. 

Additionally, persecution “always implies some connection to

government action or inaction.” Harutyunyan v. Gonzales, 421 F.3d

64, 68 (1st Cir. 2005).

In discussing his asylum claim, we first consider whether

Mr. Perlera has established a well founded fear of future

persecution based on past persecution specifically targeting his

family, one of five statutorily recognized categories. 8 U.S.C.

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§ 1101(a)(42)(A); Gebremichael v. I.N.S., 10 F.3d 28, 36 (1st Cir.

1993). This “kinship” criterion, it should be stressed, applies

only where the motivation for persecution is kinship and not

because multiple family members happen to be persecuted for a

common reason but the animus is not kinship. A confusion on this

point appears to underlie respondent’s claim. That the persecution

must involve official action or a refusal to enforce the law is a

separate problem which need not even be addressed in this case. 

The past and future threat of persecution on which Mr. Perlera

relies is the attack on his father, the menacing drive-bys by

unknown individuals, and threatening phone calls. This Court,

however, has denied asylum to a petitioner claiming a fear of

future persecution on account of previous attacks on their family

where the petitioner failed to provide evidence that family members

were targeted “on account of” their membership in the family. 

Ayala v. Holder, 683 F.3d 15, 17 (1st Cir. 2012).

Here, the IJ found that even if the “respondent

experienced past persecution, the experiences of the respondent

cannot be said to be attributable to one of the five protected

areas as a central reason.” We agree. Mr. Perlera did not provide

evidence of the motivation for the alleged attacks and threats in

order to support his claim of a well founded fear of future

persecution. While Mr. Perlera is not “required to identify [his]

antagonists with absolute certainty, [he] was required, in the

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absence of a positive identification, to furnish some credible

evidence of the motivation underlying the threats.” Hincapie v.

Gonzales, 494 F.3d 213, 219 (1st Cir. 2007). An absence of

evidence showing that respondent’s family was targeted on account

of their membership in that family will “defeat[] [his] claim of

past persecution on account of a legally protected ground.” Ayala,

683 F.3d at 17.

And although this Court has held that “[c]redible

testimony, standing alone, may be adequate to sustain the alien’s

burden of proof,” Nikijuluw, 427 F.3d at 121, the testimony “must

constitute credible and specific evidence of a reasonable fear of

persecution.” Afful v. Ashcroft, 380 F.3d 1, 3 (1st Cir. 2004). 

Here, while the IJ found that Mr. Perlera’s testimony was credible,

this Court requires that in order for testimony alone to be

sufficient evidence of a reasonable fear of future persecution, it

must be “credible and specific.” Carcamo-Recinos v. Ashcroft, 389

F.3d 253, 257 (1st Cir. 2004). While Mr. Perlera’s testimony was

deemed credible, it was not specific, given Mr. Perlera’s failure

to identify any of the assailants and more importantly, their

motives for attacking his father.

Regarding Mr. Perlera’s legal theory that his past and

future persecution was based also on his family’s wealth, this

Court has previously rejected this theory as providing a statutory

basis for asylum. Escobar v. Holder, No. 11-2086, 2012 WL 5193223,

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at *2-3 (1st Cir. Oct. 22, 2012); Sicaju-Diaz v. Holder, 663 F.3d

1, 4 (1st Cir. 2011) (rejecting the view that perceived persecution

based on wealth was persecution based on membership in "a social

class or group" within the meaning of the INA). Therefore, we find

that Mr. Perlera has not provided sufficient evidence to establish

a well founded fear of future persecution based on his family

membership to support his asylum claim.

Because statutory withholding of removal under INA § 241

(b)(3), 8 U.S.C. § 1231 (b)(3), requires an even greater likelihood

of future persecution than asylum, Lobo, 684 F.3d at 19-20,

Mr. Perlera’s request for statutory withholding of removal

necessarily fails. The Court further finds that Mr. Perlera is not

eligible for relief under the CAT, as he has set forth no evidence

that there is any prospect that he will be “tortured” if he is

returned to El Salvador. 8 C.F.R. § 208.16 (c)(2).

III. Conclusion

For the reasons articulated above, we deny Mr. Perlera’s

petition for judicial review. 

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