Pursuant to Fed. R. App. P. 43(c)(2), Attorney General *

Michael B. Mukasey has been substituted for former Attorney General

Alberto R. Gonzáles as the respondent herein.

United States Court of Appeals

For the First Circuit

No. 07-1113

ERNEY TOBON-MARIN, ET AL.,

Petitioners,

v.

MICHAEL B. MUKASEY, ATTORNEY GENERAL, *

Respondent.

 

ON PETITION FOR REVIEW OF AN ORDER OF THE

BOARD OF IMMIGRATION APPEALS

 

Before

Lipez, Circuit Judge,

Cyr, Senior Circuit Judge,

and Howard, Circuit Judge.

 

Desmond P. FitzGerald, with whom FitzGerald & Company, LLC,

was on brief for petitioner.

Peter D. Keisler, Acting Attorney General, Cindy S. Ferrier,

Senior Litigation Counsel, and Rebecca A. Niburg, Trial Attorney,

on brief for respondent.

 

January 8, 2008

 
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CYR, Senior Circuit Judge. Erney and John Freddy TobonMarin, brothers who are natives and citizens of Colombia, entered

the United States in 2002 and 2003, respectively, without valid

visas. The Immigration and Naturalization Service (INS) commenced

deportation proceedings against the brothers, who conceded

removability, but filed applications for asylum based on their

allegations of past persecution in Colombia relating to their

political beliefs.

At their hearing before an immigration judge (IJ), Erney

testified that before he left Colombia, the Revolutionary Armed

Forces of Colombia (aka Fuerzas Armadas Revolucionarias de Colombia

or the FARC), a communist guerilla group seeking to bring about the

forcible overthrow of the Colombian government, came to the house

where Erney resided with his parents and three brothers, and asked

him to join the FARC. Erney did not want to join the FARC because

he disagreed with their political agenda. Because he was

frightened, however, Erney did not respond, and the guerillas left.

During the following week, Erney heard that the FARC had murdered

a teenage boy from his neighborhood who had been invited to join

the FARC but had refused. Concerned for Erney’s safety, his

parents paid for his plane fare to the United States. 

Later in 2002, the FARC sent a threatening letter to the

Tobon-Marin home, asking Erney’s brother, John Freddy, to join the

FARC or face serious consequences. Within the next few days, John
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Freddy also received three or four threatening phone calls. John

Freddy’s parents paid for his airfare to the United States to join

his brother Erney. Petitioners’ parents and older brother, who was

also approached by the FARC but refused to join, have remained at

their home in Colombia without further incident. 

The IJ denied petitioners’ applications for asylum,

finding, inter alia, that: (i) petitioners were credible, and had

established a subjectively genuine fear of returning to Colombia;

(ii) petitioners had not established that their subjective fear was

objectively reasonable; (iii) the FARC’s threats against

petitioners did not persist or escalate into violence or physical

harm; (iv) petitioners never told the FARC that their refusal to

join was based on their political views, and thus they did not

conclusively establish that the FARC threats were made on account

of that statutorily protected ground; and (v) petitioners’ family

(and especially their older brother, whom the FARC had

unsuccessfully attempted to recruit) had remained behind at the

family home in Colombia without suffering any adverse repercussions

from petitioners’ refusals to join the FARC. On appeal, the BIA

affirmed on these same grounds, and the brothers submitted their

consolidated petition for review.

I

DISCUSSION

Petitioners contend that the IJ and the BIA erred in
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denying their asylum applications on the grounds that the FARC’s

previous attempts forcibly to conscript them into the guerilla

group were neither sufficiently grievous to constitute

“persecution” nor motivated by petitioners’ political opinions, and

that petitioners failed to adduce sufficient evidence that their

subjective fear of returning to Colombia was objectively

reasonable.

As the BIA adopted and supplemented the IJ’s opinion with

its own substantive gloss, we evaluate both the IJ’s decision and

the BIA decisions. See Sunoto v. Gonzales, 504 F.3d 56, 59-60 (1st

Cir. 2007). We deferentially scrutinize the agency’s findings of

fact under the “substantial evidence” standard, and will affirm

unless “any reasonable adjudicator would be compelled to conclude

to the contrary,” 8 U.S.C. § 1252(b)(4)(B).

In order to establish their entitlement to asylum,

petitioners needed to prove they are “refugees,” in that they are

“unable or unwilling to return to . . . [their] country 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.” Id. § 1101(a)(42)(A) (emphasis

added). The statute contemplates two approaches which petitioners

might pursue to satisfy their burden of proof.

A. Past Persecution

First, petitioners may prove they suffered from past
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“persecution” on account of one or more of the five statutory

grounds, supra, which would generate a rebuttable presumption that

their fear of future persecution is well-founded. See Nikijuluw v.

Gonzales, 427 F.3d 115, 120 (1st Cir. 2005). The administrative

record contains ample evidentiary support for the agency’s ruling

that petitioners failed to meet this burden of proof.

Petitioners were required to adduce sufficient evidence

of a causal nexus between the FARC’s actions and petitioners'

political beliefs. Fesseha v. Ashcroft, 333 F.3d 13, 18 (1st Cir.

2003) (noting that alien must establish past persecution with

“conclusive evidence”). It is not enough to establish that the

FARC is a politically-motivated guerilla group, since “persecution

on account of . . . political opinion . . . is persecution on

account of the victim’s political opinion, not the prosecutors.”

INS v. Elias-Zacarias, 502 U.S. 478, 482 (1992) (“Thus, the mere

existence of a generalized ‘political’ motive underlying the

guerrillas’ forced recruitment is inadequate to establish . . . the

proposition that [the petitioner] fears persecution on account of

political opinion, as [§ 1101(a)(42)] requires.”). Absent specific

evidence that the FARC targeted petitioners as a means to punish

them for their pro-government, anti-communist political views,

forced conscription would not constitute “persecution” for asylum

purposes. See id. at 483 (noting that such recruiters may inflict

harm not because of the target’s political opinion, but simply
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“because of his refusal to fight with them”); Velasquez-Valencia v.

INS, 244 F.3d 48, 50 (1st Cir. 2001); see also Bartolo-Diego v.

Gonzales, 490 F.3d 1024, 1027-28 (8th Cir. 2007) (noting that “the

guerillas ‘did not identify the [petitioner] or seek to recruit him

because of any political opinion, or punishment for his father’s

service within the military,’ . . . [but that] ‘he was simply

targeted as a young man who might be sympathetic to the guerilla

cause’”) (citations omitted); Tapiero de Orejuela v. Gonzales, 423

F.3d 666, 674 (7th Cir. 2005) (noting that petitioners “would have

had to show that politics rather than many other likely reasons lay

behind their unwillingness to support FARC”); Sanchez v. United

States Attorney Gen., 392 F.3d 434, 438 (11th Cir. 2004) (observing

that “[i]t is not enough to show that [petitioner] was or will be

persecuted or tortured due to her refusal to cooperate with the

guerillas”).

Indeed, coercive conscription efforts might be motivated

simply by the recruiters’ desire to fill their ranks with any

available able-bodied individual, irrespective of their political

sympathies, and the target of coerced recruitment might resist

conscription for any number of nonpolitical motives, such as a fear

of combat, or a reluctance to give up his civilian livelihood. See

Tapiero de Orejuela, 423 F.3d at 673. Although petitioners

testified that they subjectively held such anti-FARC sentiments,

they admit that they did not communicate these views to the FARC
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representatives who attempted to recruit them. For example, Erney

testified that he was simply too frightened to answer the

recruiters, and their mother told the recruiters that John Freddy

was too young. Even if we were to assume, arguendo, that

circumstantial evidence alone might support an inference that the

FARC correctly or incorrectly imputed an opposing political opinion

to these petitioners, see, e.g., Delgado v. Mukasey, No. 05-4393,

2007 WL 4180134, at *3 (2d Cir. Nov. 28, 2007); Bartolo-Diego, 490

F.3d at 1027, the record contains no such supportive circumstantial

evidence. As factfinder, the agency legitimately inferred that the

FARC likely targeted petitioners simply because they were ablebodied young boys. Although such coercive practices are indeed

unfortunate, they do not trigger an entitlement to political asylum

under 8 U.S.C. § 1101(a)(42)(A).

Further, even if petitioners had adduced evidence of a

causal nexus, asylum applicants must also demonstrate that the

actual harm inflicted on them reached “a fairly high threshold of

seriousness, as well as some regularity and frequency,” Alibeaj v.

Gonzales, 469 F.3d 188, 191 (1st Cir. 2006), which requires them to

relate experiences amounting to “‘more than mere discomfiture,

unpleasantness, harassment, or unfair treatment,’” Susanto v.

Gonzales, 439 F.3d 57, 59-60 (1st Cir. 2006) (citation omitted).

The FARC merely attempted forced conscription of petitioners, but

neither succeeded nor persisted in its efforts. The FARC
Petitioners specifically fault the BIA for citing Guzman v. 1

INS, 327 F.3d 11 (1st Cir. 2003), arguing that the decision turned

exclusively on Guzman’s failure to refute evidence that the

political situation in Guatemala had changed since the alleged acts

of persecution against him, whereas it is undisputed that the

political climate in Colombia has undergone no comparable sea

change. In Guzman, however, we first upheld the agency’s

determination that Guzman failed to prove past “persecution,” even

though guerillas had kidnaped, imprisoned and beat him. Id. at 15-

16. That failure of proof precluded Guzman from enjoying a

rebuttable presumption that his fear of future persecution was

well-founded, and record evidence of any intervening political

changes in Guatemala further undercut Guzman’s future-persecution

claim. Id. at 16. Hence, the BIA correctly cited Guzman for the

proposition that petitioners had not proven, as a threshold matter,

that the acts of past persecution were severe enough to constitute

“persecution” under the asylum statute.

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approached Erney in person only once, and contacted John Freddy

only a few times by mail or telephone. “Threats standing alone []

constitute past persecution in only a small category of cases, and

only when the threats are so menacing as to cause significant

actual ‘suffering or harm.’” Butt v. Keisler, 506 F.3d 86, 91 (1st

Cir. 2007) (citation omitted). Neither petitioners nor their

families were physically harmed. See Zacarias-Velasquez v.

Mukasey, No. 06-3672, 2007 WL 4233155, *4 (8th Cir. Dec. 4, 2007)

(“According to [petitioner’s] testimony, neither the guerrillas nor

any other group ever harmed or even detained him.”); see also

Susanto, 439 F.3d at 59-60 (noting that even infliction of actual

physical harm might not constitute “persecution”). Rather, 1

petitioners’ family has remained behind in their home in Colombia

without any attempts by the FARC to retaliate for petitioners’ and

their brother’s implicit refusals to join its ranks. While
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petitioners testified that their brother stayed close to home to

avoid possible confrontation with the FARC recruiters, the agency

was within its rights to conclude that such a hindrance would

amount to no “‘more than mere discomfiture, unpleasantness,

harassment, or unfair treatment’” rather than “persecution.” Id.

B. Future Persecution

As petitioners failed to prove past persecution, they

have generated no rebuttable presumption that their fear of future

persecution is well-founded. See Nikijuluw, 427 F.3d at 120. Yet,

they maintain that the IJ and BIA were compelled to find that

petitioners' fear of future persecution was not only subjectively

genuine, but objectively reasonable as well. See Negeya v.

Gonzales, 417 F.3d 78, 82-83 (1st Cir. 2005). As support, they

cite (i) Erney’s testimony that the FARC assassinated a neighbor

who had resisted its forced conscription attempts, and a United

States State Department country condition report that the FARC,

which is infamous for murderous reprisals against its political

opponents, principally targets young males of petitioners’ ages for

forced recruitment; and (ii) a UNICEF Report that about 17.5% of

Colombian youths are “affected” by Colombia’s civil war, see INS v.

Cardoza-Fonseca, 480 U.S. 421, 431 (1987) (observing that even a

10% chance that an event of persecution may occur may make

petitioner’s fear well founded). This evidence, however, does not

compel a finding that petitioners’ fear of future persecution was
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objectively reasonable.

The anecdotal evidence of the assassinated neighbor is of

limited evidentiary weight because petitioners were unable to

provide any further details about the circumstances surrounding

that event, thus precluding an agency determination of the FARC’s

motive for killing the neighbor (viz., whether motivated solely by

the victim’s refusal to join the FARC), and whether the killing

suggested that petitioners might have provided the FARC with a

similar retaliatory incentive. Whatever the “country conditions”

report may have been regarding the FARC’s reputation for violent

retribution against its political opponents, the record contains no

evidence that the FARC has formed any such intention toward these

petitioners. Cf. Delgado, 2007 WL 4180134, at *4 (noting that

petitioner, who was kidnaped by the FARC and escaped, had been

“marked for death”). Indeed, the record discloses countervailing

evidence: petitioners’ family (and especially their brother, who

is of an appropriate age to serve in the military) have remained

behind in the family residence not only without any attempted

reprisals by the FARC for petitioners’ refusals to join, but

apparently without any further FARC contacts of any kind. See

Boukhtouchen v. Gonzales, 498 F.3d 78, 81 n.3 (1st Cir. 2007)

(“‘[T]he fact that close relatives continue to live peacefully in

the alien’s homeland undercuts the alien’s claim that persecution

awaits his return.’”) (citation omitted); Nikijuluw, 427 F.3d at
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122.

Nor does the UNICEF report – that Colombia’s civil unrest

“affects” about 17.5% of its child population – compel an agency

finding that the petitioners’ fear of future persecution is

objectively reasonable. The term “affects,” standing alone, does

not necessarily connote that these children suffer effects which

rise to the level of “persecution,” as that term is used in §

1101(a)(42). Civil war, and the pandemic violence which

accompanies it, often have unfortunate collateral effects on much

of a country’s population, but these effects have no direct or

necessary correlation with the victims’ political views. See

Harutyunyan v. Gonzales, 421 F.3d 64, 70 (1st Cir. 2005)

(“‘[E]vidence of widespread violence and human rights violations

affecting all citizens is insufficient to establish persecution.’”)

(citation omitted).

Thus, the agency’s determination that petitioners failed

to establish an objectively reasonable fear of future persecution

based on their political opinions is sufficiently supported by

substantial record evidence.

II

CONCLUSION

However deplorable and regrettable the FARC’s forced

conscription methods against petitioners and other Colombian

youths, the asylum statute simply was not enacted to embrace cases
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wherein harmful acts were not committed on account of one of the

five enumerated statutory grounds, nor where they did not reach a

minimum threshold of severity. As the IJ and the BIA had

substantial evidence upon which to conclude that the petitioners’

unfortunate experiences were neither politically motivated nor

sufficiently grave, and that it is unlikely that they will suffer

serious reprisals at the hands of the FARC if they are repatriated

to Columbia, their petitions for review must be denied.

Denied.