Carlos Manuel Calles QUINTEROS, also known as Jose Vasquez, Petitioner v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent. Carlos Manuel Calles Quinteros, also known as Jose Vasquez, Petitioner v. Eric H. Holder, Jr., Attorney General of the United States, Respondent.
Nos. 11-1875, 11-3425.
United States Court of Appeals, Eighth Circuit.
Submitted: Oct. 18, 2012. Filed: March 1, 2013.
The district court was aware of, and discounted or rejected, Bunch‘s arguments. The district court credited the officers’ and Calhoun‘s testimony over Bunch‘s denials and the alibi testimony. Such credibility assessments are “virtually unreviewable on appeal.” United States v. Heath, 58 F.3d 1271, 1275 (8th Cir.1995). Although the district court could have viewed Calhoun‘s animus towards Bunch as wholly credibility-defeating, it was not required to do so. Further, although the district court could have viewed Calhoun‘s lies to another girlfriend about the shooting as evidence that Bunch was not the shooter, the court equally could have viewed the lies as an attempt by Calhoun to hide from the other woman his involvement with Curtis. Finally, the family‘s alibi testimony contained inconsistencies. Simply put, there were multiple reasonable ways to view the evidence. It is not our role to re-weigh evidence and substitute our own credibility assessments for those of the district court. See FTC v. Lundbeck, 650 F.3d 1236, 1239 (8th Cir.2011) (“If the district court‘s fact-findings are plausible in light of the record viewed in its entirety, they must be affirmed.“) (citation and internal quotation marks omitted).
We affirm the judgment of the district court.
Hillel Ryder Smith, Greg D. Mack, Washington, DC, for Respondent.
Before LOKEN, BEAM, and SMITH, Circuit Judges.
SMITH, Circuit Judge.
Carlos Manuel Calles Quinteros petitions for review of a final order of the Board of Immigration Appeals (BIA) affirming the immigration judge‘s (IJ) denial of his applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). We deny the petition.
I. Background
Calles Quinteros, a citizen of El Salvador, entered the United States in 2003 at the age of 14 without being admitted or paroled. In April 2008, the Immigration and Naturalization Service (INS) charged Calles Quinteros with removability under the Immigration and Nationality Act (INA),
According to Calles Quinteros‘s affidavit, he lived with his family in El Salvador before coming to the United States. Calles Quinteros‘s father owned a dairy
The IJ found Calles Quinteros to be generally credible but determined that the evidence failed to support claims of past persecution, future persecution, or torture under CAT. First, the IJ addressed the timeliness of Calles Quinteros‘s asylum application, noting that the application had to be filed within one year of arriving in the United States or within a reasonable time after Calles Quinteros turned 18. The IJ found that Calles Quinteros‘s filing of his asylum application nearly two years after turning 18 was unreasonable. Second, the IJ alternatively denied the asylum application on the merits. Specifically, the IJ noted that Calles Quinteros had testified that he did not suffer any past persecution in El Salvador. He also rejected Calles Quinteros‘s claim that he belonged to a particular social group because his alleged social group lacked an immutable characteristic. He thus concluded that immediate family members of local business owners would not qualify as a social group. Furthermore, the IJ found that, considering that Calles Quinteros‘s father, mother, and sister live unharmed in El Salvador and Calles Quinteros was not harmed when he refused to join the MS-13 gang, Calles Quinteros could not establish an objectively reasonable fear of future persecution in El Salvador.
Acknowledging that the brother‘s murder was tragic, the IJ remarked that the El Salvadoran government did take action to prosecute suspects but that the individuals charged were acquitted after trial. The IJ also noted Calles Quinteros‘s family members are “possibly the victims of crime, in that persons are extorting money from them. However, that does not make a case for asylum.” The IJ denied Calles Quinteros asylum, concluding that he “failed to show that he suffered past persecution based on one of the five grounds enumerated in the Act, and he has also failed to show that he has a well-founded fear of future persecution.” The IJ also “denied [asylum] due to the one-year asylum bar.” The IJ acknowledged that while “[t]he country information does indicate that there are problems with gangs in El Salvador,” “fear of gangs [is not] a basis for asylum in the United States.” Given the higher proof standards for withholding of removal, the IJ also denied that relief, as well as relief under CAT. The IJ granted Calles Quinteros‘s application for voluntary departure from the United States.
Calles Quinteros filed a timely notice of appeal, and the BIA dismissed the appeal. The BIA affirmed the IJ‘s conclusion that Calles Quinteros did not meet the burden of proof for obtaining asylum or withholding of removal. The BIA stated, “We find that the Immigration Judge correctly con-
Calles Quinteros asked the BIA to reopen and reconsider its decision, and the BIA again denied Calles Quinteros‘s application, which was based on Crespin-Valladares v. Holder, 632 F.3d 117, 125-26 (4th Cir.2011). Noting that the Fourth Circuit case, Crespin-Valladares, was not binding on the Eighth Circuit, the BIA nonetheless distinguished that case on the basis that Crespin-Valladares involved an alien who had “demonstrated a viable particular social group.” Finally, the BIA denied Calles Quinteros‘s ineffective-assistance-of-counsel claim, finding no prejudice because it found that the IJ would have denied the claim on the merits regardless of whether counsel had filed the asylum application in a timely manner. Calles Quinteros filed a timely notice of appeal to this court.
II. Discussion
Relying on Crespin-Valladares, Calles Quinteros claims membership in a particular social group of immediate family members of a local business owner. He asserts that the BIA and IJ erred in not considering this to be a social group falling within the purview of
“When the Court reviews a BIA determination regarding eligibility for asylum, withholding of removal, or relief under the [CAT], the substantial evidence standard is utilized.” Guled v. Mukasey, 515 F.3d 872, 879 (8th Cir.2008). “We review the BIA‘s decision denying a motion to reopen and reconsider for an abuse of discretion.” Id. at 882.
“The BIA abuses its discretion where it gives no rational explanation for its decision, departs from its established policies without explanation, relies on impermissible factors or legal error, or ignores or distorts the record evidence.” Id. “A motion to reopen must present ‘new facts that are material to the outcome of the proceeding and were neither available nor discoverable at the prior hearing.‘” Id. (quoting Fongwo v. Gonzales, 430 F.3d 944, 947 (8th Cir.2005)). To obtain asylum, Calles Quinteros was required to establish he “is unable or unwilling to return to his home 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.‘” I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 423, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) (quoting
We give Chevron1 deference to the BIA‘s “reasonable interpretation of the phrase” “[p]articular social group.” Ngengwe v. Mukasey, 543 F.3d 1029, 1033 (8th Cir.2008).
The BIA defined the phrase in Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985), overruled on other grounds by Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987). The BIA used the doctrine of ejusdem generis (general words used with specific words should be construed consistent with the specific words), comparing the term particular social group to the other enumerated grounds: race; religion; nationality; and political opinion. Acosta, 19 I. & N. [Dec.] at 233. The BIA determined that a particular social group must “share a common, immutable characteristic.” Id. “The group characteristic must be one ‘that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities and consciences.‘” Davila-Mejia v. Mukasey, 531 F.3d 624, 628 (8th Cir.2008), quoting Acosta, 19 I. & N. [Dec.] at 233. “The shared characteristic might be an innate one such as sex, color, or kinship ties, or in some circumstances it might be a shared past experience....” Acosta, 19 I. & N. [Dec.] at 233.
Id.
“[U]nder BIA precedent, the term ‘family business owner’ is too amorphous to adequately describe a social group.” Davila-Mejia, 531 F.3d at 629. There is no “bright line rule for the exclusion of instances of extortion or recruitment as bases for finding past persecution.” De Brenner v. Ashcroft, 388 F.3d 629, 638 n. 2 (8th Cir.2004). But rather the court must carefully examine the particular circumstances of the alleged persecution. Id.
Calles Quinteros relies heavily on the Fourth Circuit case of Crespin-Valladares. In Crespin-Valladares, an El Salvadoran family sought asylum because their “particular social group” suffered persecution. 632 F.3d at 121. The petitioner‘s cousin had been murdered by the MS-13 gang in El Salvador. Id. at 120. The petitioner and his uncle cooperated with the government‘s investigation into the crime, and his uncle testified against those charged with the attack. Id. After receiving threats from MS-13, the petitioner decided to leave El Salvador and flee to the United States. Id. The Crespin-Valladares court held that family members of those who testify against gang members in El Salvador and who suffer persecution on account of their family ties are a cognizable social group.2 Id. at 125.
Although Crespin-Valladares is not controlling here, it is nonetheless distinguishable on its facts. Crespin-Valladares involved an actual murder of a family member by gang members who were
Calles Quinteros has not shown that he has a well-founded fear of future persecution. Calles Quinteros‘s fear of persecution stems from the alleged extortion of his father, the threat to his sister, and the murder of his younger brother. As noted by the BIA, Calles Quinteros‘s father, mother, and sisters continue to live unharmed in the same house in El Salvador. In short, based on the evidence presented, Calles Quinteros‘s fear of persecution may be characterized as speculative and thus not meriting asylum or withholding of removal. See Perinpanathan, 310 F.3d at 599.
The BIA gave a rational explanation for its decision, did not distort the record, followed its established polices, relied on no impermissible factors and committed no legal error. We find no abuse of discretion.
III. Conclusion
Accordingly, we deny the petition for review.
United States of America, Intervenor Plaintiff-Appellant v. ACCENTURE, LLP, An Illinois limited liability partnership; Accenture, Ltd., a Bermuda Corporation; Avanade, Inc., a Delaware Corporation; Microsoft Corporation, a Washington Corporation, Defendants Hewlett-Packard Company, Intervenor Defendant.
No. 11-2054.
United States Court of Appeals, Eighth Circuit.
Submitted: Jan. 12, 2012. Filed: March 1, 2013.