A younger child, Anthony Perez-Mendez, is a citizen of the United States. 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 10a0200n.06

09-3298

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

SILVIA VERONICA MENDEZ-CORONADO,

KEVIN JOSUE PEREZ-MENDEZ, HECTOR

ODILMAR PEREZ,

Petitioners,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

On Petition for Review from

the Board of Immigration

Appeals

 /

Before: GUY, COLE, and SUTTON, Circuit Judges.

RALPH B. GUY, JR., Circuit Judge. Petitioners, all natives and citizens of

Guatemala, seek review of the BIA’s final order of removal denying the application of Silvia

Mendez-Coronado for relief, as well as the derivative applications of her husband Hector

Odilmar Perez and their minor son Kevin Josue Perez-Mendez. Petitioners argue that 1

substantial evidence does not support the BIA’s determination that Mendez-Coronado failed

to establish grounds for withholding of removal or relief under the Convention Against
09-3298 2

Mendez-Coronado testified that she did not apply for asylum sooner because she was afraid of 2

being arrested, did not know where to get help, and did not have money to pay to go through the process.

Torture (CAT). After review of the record, we deny the petition for review.

I.

Silvia Mendez-Coronado, the lead petitioner, was born in Guatemala on January 4,

1978; married Hector Perez on August 2, 1996; and entered the United States illegally in

October 1998. Mendez-Coronado stayed in California, where her mother and several

siblings lived, for approximately four months before moving with her husband and son to

Ohio. On October 28, 2002, four years after entering the United States, Mendez-Coronado

filed an application for asylum stating that she left Guatemala because guerrillas had

attempted to recruit her and threatened her when she refused to join them.2

In November 2003, after Mendez-Coronado was interviewed, petitioners were issued

Notices to Appear charging them with removability under 8 U.S.C. § 1182(a)(6)(A)(i).

Petitioners conceded removability before an Immigration Judge (IJ), as all three had entered

the United States illegally. Seeking relief from removal, Mendez-Coronado renewed her

request for asylum and sought withholding of removal and relief under the CAT. Petitioners

also applied, in the alternative, for voluntary departure.

The only witness at the merits hearing held in November 2007, Mendez-Coronado

testified that in 1998 some guerillas came to her town and tried to recruit her and several

other young women to cook and clean for them. When the women refused, the guerillas

threatened to return and take them by force. Afraid, Mendez-Coronado restricted her
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Petitioners concede that because the asylum application was denied solely on the ground that it was 3

untimely and the issue did not present a constitutional claim or question of law, this court is without

activities and stayed in the house. A few days later, a letter with her name on it was

delivered to her house. The letter threatened torture and death because she had refused to

join the guerillas. She did not report this to the authorities, and no longer had the letter

because she destroyed it. Neither she nor her husband received any further threats before

leaving Guatemala a few months later. A female cousin living nearby received a similar

threatening letter and moved away to the capital city. Asked why she did not do the same,

Mendez-Coronado explained that she did not know anyone in the capital and that she

believed that no one is safe in Guatemala. Instead, Mendez-Coronado came to California,

where her mother had been living for a number of years.

Mendez-Coronado also testified that her father, a soldier in the Guatemalan army, was

murdered in 1996. Her father was driving a truck that was stopped by five men who made

her father get out of the truck and then shot him in the head. Her father was not robbed, and

the other two men with him were not harmed. Although Mendez-Coronado had not been in

Guatemala during the previous ten years and did not have much contact with anyone living

there, she testified that she feared harm if she were to return because the guerrillas are

“present there all the time.” She acknowledged that there had been elections, a change of

government, and an end to the civil war in Guatemala, but stated that there were “always

wars going on.”

The Immigration Judge (IJ) found that the asylum application was time barred, a

determination that was affirmed by the BIA and is not challenged by petitioners on appeal.3
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jurisdiction to review the decision denying the asylum claim. Almuhtaseb v. Gonzales, 453 F.3d 743, 747-

48 (6th Cir. 2006).

The petition for review automatically terminated the grant of voluntary departure, see 8 C.F.R. § 4

1240.26(i) (2009), and this court denied petitioners’ motion for stay of removal on November 23, 2009.

The IJ also found that Mendez-Coronado, although credible, failed to establish (1) either past

persecution or a clear probability of future persecution on account of a protected ground as

is required for withholding of removal; or (2) that it was more likely than not that she would

be tortured if she returned to Guatemala as required for relief under the CAT. The BIA

agreed with the IJ’s findings and dismissed petitioner’s appeal in a final decision entered on

February 24, 2009. This appeal followed.4

II.

When, as here, the BIA reviews the IJ’s decision and issues its own opinion, we

review the BIA’s decision as the final agency determination. See Morgan v. Keisler, 507

F.3d 1053, 1057 (6th Cir. 2007). To the extent that the BIA adopts the IJ’s reasoning, we

also review those portions of the IJ’s decision. See Khalili v. Holder, 557 F.3d 429, 435 (6th

Cir. 2009). Questions of law are reviewed de novo, substantial deference is given to the

BIA’s interpretation of the statute and applicable regulations, and factual findings must be

sustained if their determination is “supported by reasonable, substantial, and probative

evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481

(1992). Under the substantial evidence standard, we may not reverse simply because we

would have decided differently. See Gishta v. Gonzales, 404 F.3d 972, 978 (6th Cir. 2005).

Rather, “the administrative findings of fact are conclusive unless any reasonable adjudicator
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would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).

A. Withholding of Removal under the INA

For withholding of removal under the Immigration and Nationalization Act (INA), an

applicant must demonstrate that, if removed to his home country, his “life or freedom would

be threatened” on account of his race, religion, nationality, membership in a particular social

group, or political opinion. 8 U.S.C. § 1231(b)(3)(A). To meet this burden, the applicant

must establish a clear probability of persecution, meaning that “it is more likely than not” that

he would be subject to persecution upon his return. INS v. Stevic, 467 U.S. 407, 413, 424

(1984); see also Pilica v. Ashcroft, 388 F.3d 941, 951 (6th Cir. 2004). If the applicant proves

past persecution, “there is a presumption, subject to rebuttal by the Government, that his ‘life

or freedom would be threatened in the future’ in the country of removal.” Gjyzi v. Ashcroft,

386 F.3d 710, 715 (6th Cir. 2004) (quoting 8 C.F.R. § 208.16(b)(1)(i)); see also Almuhtaseb

v. Gonzales, 453 F.3d 743, 750 n.6 (6th Cir. 2006) (recognizing that presumption applies to

withholding of removal).

Mendez-Coronado claims that she suffered past persecution in Guatemala as a result

of having refused to join the guerrillas. According to her testimony, which the IJ found

credible, the guerrillas threatened to return and take her with them by force, and then sent her

a letter a few days later threatening torture and death for refusing to go with them. No

physical harm came to her or her husband, however, and she received no further threats

before leaving Guatemala a few months later. Although the term “persecution” is not

defined by the INA, we have held that persecution “‘requires more than a few isolated
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incidents of verbal harassment or intimidation, unaccompanied by any physical punishment,

infliction of harm, or significant deprivation of liberty.’” Gilaj v. Gonzales, 408 F.3d 275,

284 (6th Cir. 2005) (quoting Mikhailevitch v. INS, 146 F.3d 384, 390 (6th Cir. 1998)). In this

case, the isolated and unfulfilled threats do not constitute past persecution, and no

presumption of future persecution arises. See Castellano-Chacon v. INS, 341 F.3d 533, 550

(6th Cir. 2003).

Also, the BIA found that there was no evidence that her father’s murder two years

earlier was on account of a protected ground, or on a ground that related to her in particular.

Petitioners do not challenge this determination on appeal. The BIA’s conclusion that

Mendez-Coronado failed to demonstrate past persecution is supported by substantial

evidence.

Next, the BIA concluded that Mendez-Coronado failed to otherwise establish a clear

probability of future persecution on account of one of the enumerated grounds. Asserting

that her refusal to go with the guerrillas would be deemed to be opposition to their cause,

Mendez-Coronado claimed it was more likely than not that she would be persecuted on the

basis of imputed political opinion if she were to return to Guatemala. Although the IJ

accepted that the feared persecution would be on the basis of imputed political opinion, the

Supreme Court rejected a similar asylum claim on the grounds that the petitioner’s resistence

to recruitment by the guerrillas during the Guatemalan civil war was not an expression of

political opinion. See Elias-Zacarias, 502 U.S. at 482. The Court explained that the

persecution must turn on the “victim’s political opinion, not the persecutor’s.” Id.; see also
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Pascual v. Mukasey, 514 F.3d 483, 486 (6th Cir. 2007) (holding that abduction of petitioner

by guerrillas during the Guatemalan civil war was not persecution based on the victim’s

political opinion). In this case, there is little basis to conclude that persecution of MendezCoronado would be on the basis of her political opinion given her testimony that the

guerrillas sought to recruit her to cook and clean for them.

Our decision need not rest on this basis, however, because substantial evidence

supports the BIA’s finding that Mendez-Coronado failed to demonstrate a clear probability

that she would suffer persecution at the hands of the guerrillas if she were to return to

Guatemala. In support of her claim, Mendez-Coronado expressed the belief that, despite the

end of the civil war and the election of a new government, the guerrillas continued to have

a presence in Guatemala and the government would not be able to protect her. She conceded,

as she must, that conditions have improved, but argued based on the State Department’s 2006

Country Reports that serious problems remained of human rights violations and widespread

societal violence. The Country Reports reflected continued human rights violations by

members of the security forces and police, but made no mention of ongoing guerrilla

activities or forced recruitments. Nor does the general level of societal violence establish

persecution. See Castellano-Chacon, 341 F.3d at 550; Almuhtaseb, 453 F.3d at 750 (holding

that fear of the generalized possibility of persecution is insufficient for withholding of

removal). The BIA’s denial of withholding of removal under the INA was supported by

substantial evidence.

B. Relief under the CAT
09-3298 8

To qualify for withholding of removal under the CAT, the applicant need not

demonstrate that the harm would be on account of an enumerated ground, but “must establish

a ‘particularized threat of torture.’” Almuhtaseb, 453 F.3d at 751 (quoting CastellanoChacon, 341 F.3d at 551). The BIA agreed with the IJ that Mendez-Coronado did not

establish that “it is more likely than not” that she would be tortured upon her return to

Guatemala. 8 C.F.R. § 1208.16(c)(2). Although Mendez-Coronado asserts that this was

error, no argument or citation to the record or any case law was offered in support of this

claim. See Al-Najar v. Mukasey, 515 F.3d 708, 717 (6th Cir. 2008) (citing United States v.

Villareal, 491 F.3d 605, 611 (6th Cir. 2007)) (observing that “it is a settled appellate rule that

issues adverted to in a perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived”). Not only is this claim deemed waived, but also it is

clear that the BIA’s denial of relief under the CAT is supported by substantial evidence.

Under the CAT, “torture” is limited to “an extreme form of cruel and inhuman

treatment and does not include lesser forms of cruel, inhuman or degrading treatment or

punishment that do not amount to torture.” 8 C.F.R. § 1208.18(a)(2). In determining

whether it is more likely than not that the applicant would be tortured if returned to the

country of removal, all evidence should be considered, including, “evidence of past torture

inflicted on the applicant”; the applicant’s ability to “relocate to a part of the country of

removal where he or she is not likely to be tortured”; “gross, flagrant or mass violations of

human rights within the country of removal”; and other “relevant information regarding

conditions in the country of removal.” 8 C.F.R. § 208.16(c)(3)(i)-(v).
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Mendez-Coronado does not argue that consideration of these factors compel a finding

that she would more likely than not be subjected to torture upon her return to Guatemala.

The end of the civil war represents changed country conditions that make it less likely that

she would be tortured by guerrillas for resisting their recruitment efforts. Moreover, as the

IJ found, at the time of the hearing there was no evidence of significant human rights

violations by the guerrillas or that the torture she feared would be “by or at the instigation of

or with the consent or acquiescence of a public official or other person acting in an official

capacity.” 8 C.F.R. § 1208.18(a)(1).

Accordingly, the petition for review is DENIED.