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Castro-Pu v. Mukasey: IMMIGRATION - strife still in country, but insufficent showing of particular risk of persecution;

United States Court of Appeals
No. 07-2126
Roberto Basilo Castro-Pu, **
Petitioner, *
v. * Petition for Review of an Order
* of the Board of Immigration Appeals.
Michael B. Mukasey, Attorney General *
of the United States of America, *
Respondent. *
Submitted: April 18, 2008
Filed: August 28, 2008
Before LOKEN, Chief Judge, JOHN R. GIBSON and MELLOY, Circuit Judges.
LOKEN, Chief Judge.
Roberto Basilo Castro-Pu, a native and citizen of Guatemala, entered the United
States in June 1991 without inspection. Deportation proceedings commenced two
days later. He conceded deportability and timely applied for asylum, withholding of
deportation (now removal), and relief under the Convention Against Torture (CAT),
claiming a well-founded fear of persecution by the Guatemalan army and government
if repatriated due to his ethnicity and political opinions. See 8 U.S.C.
1101(a)(42)(A). Castro-Pu petitions for review of the final order of the Board of
Immigration Appeals (BIA) denying all relief. After careful review of the lengthy
administrative proceedings, we deny the petition for review.
I. The Administrative Proceedings
In his asylum application and in testimony at the first asylum hearing in 1991,
Castro-Pu, a member of the Quiche indigenous ethnic minority, claimed fear of
persecution in Guatemala based on two series of events. In 1988, while serving in the
Civil Defense unit in his home village in Quiche Province, his unit was ordered to
help bury twenty-three indigenous refugees from a nearby village that the army had
massacred as suspected guerillas. Castro-Pu did not obey and then refused to report
for further Civil Defense duties despite his leaders warning that the army, which
controlled Civil Defense forces, would treat him as a guerilla unless he returned to
duty. Instead, Castro-Pu fled to Guatemala City with his wife and child, where he
worked in 1989 and then enrolled in San Carlos University in 1990, without incident.
By early 1991, Castro-Pu had become an organizer of a student group that regularly
protested government and military corruption and human rights abuses. In February
and again in May, 1991, four unknown men came to his home when Castro-Pu was
not there, frightening his wife. The first time they asked where he was, what he was
doing, and why he had left his home village. The second time, they said they wanted
to talk to him about a problem they described as urgent. Suspecting that the army was
looking to kidnap and kill him because of his disobedience in 1988 and his more
recent student protest activities, Castro-Pu fled to the United States.
The immigration judge (IJ) denied Castro-Pus application. The IJ found
credible and persuasive his testimony about his activities in Guatemala, including
forcible recruitment into the Civil Defense force and human rights abuses by both
government forces and the guerillas. However, the IJ found that Castro-Pu did not
meet his burden of proving a well-founded fear of future persecution because he did
not establish that the government of Guatemala has the inclination to persecute him.
The IJ noted that Castro-Pu remained in his home village for one month after refusing
to serve in the Civil Defense in 1988, where the army could easily have found him.
Later, his father told the military that he had moved to Guatemala City, and many
friends knew where he was, yet he was not harassed. Finally, he presented no
evidence of the identity of the men who visited his home in February and May 1991,
and no evidence the visits were connected. The February visitors knew where Castro-
Pu lived yet made no further attempt to contact him, and he remained in Guatemala
City unharmed for a month after the May visit.
Castro-Pu timely appealed to the BIA, arguing that he was eligible for asylum
and withholding of deportation to Guatemala because the record established a wellfounded
fear of future persecution. A divided BIA panel dismissed the appeal in
December 1999, almost eight years later. Relying on a February 1999 Department of
State report, Guatemala Country Report on Human Rights Practices for 1998, the BIA
dismissed Castro-Pus appeal because sweeping changes in country conditions had
rendered his fear of future persecution less, rather than more, well-founded. The
BIA noted that peace accords ended the lengthy civil war; free and fair elections were
held in 1995 and 1996; and the government showed willingness to arrest and
prosecute those responsible for extrajudicial killings and human rights abuses,
instituted significant reforms to better the plight of indigenous peoples, and
increased its tolerance of peaceful demonstrations and civil associations. The
dissenting panel member concluded that Castro-Pu should have been granted asylum
in 1991 and argued that the majority denied Castro-Pu due process by dismissing the
appeal without affording him an opportunity to address, explain, or rebut the
reported changed country conditions.
Castro-Pu did not seek judicial review, apparently because his former attorney
failed to notify him of the BIAs adverse decision. But when arrested for removal in
mid-2000, he petitioned the district court in St. Louis to grant a writ of habeas corpus,
arguing the BIA denied him due process by failing to provide an opportunity to rebut
the evidence of changed country conditions. Agreeing with the BIA dissenter, the
district court granted the writ and remanded to the agency for a new hearing so that
Petitioner may respond to the evidence of changed country conditions. Castro-Pu v.
Ashcroft, No. 4:00CV1182 (E.D. Mo. judgment Mar. 22, 2001). The BIA then
vacated its 1999 decision and remanded the case to the immigration judge for a
further hearing consistent with the [district] courts decision.
A second series of hearings was held in 2005. After the prior administrative
record and the Department of States Guatemala Country Report on Human Rights
Practices for 2004 were placed in the record, counsel for Castro-Pu first called the
Director of the Immigration Law Project at Legal Services of Eastern Missouri to
testify as an expert on current country conditions in Guatemala. The IJ ruled that the
witness was not an expert and excluded her opinion testimony on country conditions
because she lacked relevant academic credentials and last visited Guatemala in 1989.
Castro-Pu then testified that he was still afraid that the government or the army would
find him anywhere in the country and kill him if he returned because of the previous
problem. He based this present fear on the 2004 Country Report, his general
familiarity with conditions in Guatemala, and phone contacts with family members
still in that country. Expressly adopting the initial 1991 IJ decision and the vacated
1999 BIA decision, the IJ denied all relief, finding that Castro-Pu has presented very
little evidence concerning the changed country conditions in his native country and
no evidence that anyone is seeking him out any longer. The BIA dismissed Castro-
Pus timely administrative appeal. This petition for review followed.
II. Discussion
A. Castro-Pu first argues that the BIA erred in denying relief on the merits
because he proved a well-founded fear of future persecution based on his ethnicity and
political opinions. He bases this argument on a faulty premise, namely, that the BIAs
1999 decision and the district courts grant of habeas relief presupposed that he
established either past persecution or a well-founded fear of future persecution in
1991. To the contrary, Castro-Pus attorney did not even argue past persecution in the
1991 proceedings, no doubt because Castro-Pu was not harmed in either 1988 or
1These circumstances distinguish Castro-Pu from the Guatemalan petitioner in
Corado v. Ashcroft, 384 F.3d 945 (8th Cir. 2004), who claimed far worse treatment
and advanced a timely past persecution claim to the agency.
2The BIA was on sound ground in ruling that changed country conditions after
an asylum applicant left his native country are relevant to whether he currently has a
well-founded fear of future persecution. See Regalado-Garcia v. I.N.S., 305 F.3d 784,
788 (8th Cir. 2002); Menjivar v. I.N.S., 259 F.3d 940, 942 (8th Cir. 2001).
1991, and the IJs 1991 decision explicitly rejected his claim of a well-founded fear
of future persecution. In dismissing Castro-Pus appeal in 1999, the BIA majority did
not address the merits of that ruling, instead relying on significantly changed country
conditions in rejecting his claim of a well-founded fear. Nor did the district court
address the well-founded fear issue on the merits. Rather, the court remanded for the
limited purpose of affording Castro-Pu an opportunity to respond to the changed
country conditions that were the basis of the BIAs 1999 decision.
Castro-Pu goes on to argue that, because he proved past persecution, the BIA
erred in not presuming a well-founded fear of future persecution and wrongly placed
the burden of proof on the changed country conditions issue on [Castro-Pu] rather
than the Government. Again, the premise is faulty. Castro-Pu did not raise the issue
of past persecution in 1991, and therefore that issue was not properly exhausted. See
Etchu-Njang v. Gonzales, 403 F.3d 577, 583 (8th Cir. 2005).1 The second hearing
was held to give him an opportunity to refute the evidence of changed country
conditions that caused the BIA to find in 1999 that he did not have a well-founded fear
of future persecution.2 The IJ found that he failed to refute that evidence and
reinstated the denial of relief. The BIA agreed. We review that decision under the
substantial evidence standard and must uphold the agencys decision unless the
evidence [Castro-Pu] presented was so compelling that no reasonable factfinder could
fail to find the requisite fear of persecution. Miah v. Mukasey, 519 F.3d 784, 787
(8th Cir. 2008) (quotation omitted); see Fisher v. I.N.S., 291 F.3d 491, 496 (8th Cir.
2002) (standard of review in proceedings begun before April 1, 1997).
The BIA acknowledged that recent Department of State reports reflect a
certain level of civil strife in Guatemala but agreed with the IJ that Castro-Pu failed
to show a particularized risk of persecution on account of a protected ground that
would establish either a well-founded fear of persecution making him eligible for
asylum or the withholding of removal, or a likelihood of torture warranting relief
under the CAT, see 8 C.F.R. 1208.16(b) & (c). Substantial evidence in the
administrative record as a whole supports this decision. Castro-Pu was not harmed
during or after the incidents in 1988 and 1991, his immediate family has remained in
Guatemala unharmed, and he failed to rebut the substantial evidence that political and
human rights conditions dramatically improved after he left the country. Therefore,
we deny the petition to review the agencys denial of relief on the merits.
B. Castro-Pu next argues that the IJ and the BIA erred in denying his motion
to terminate the administrative proceedings, which would have resulted in the agency
commencing a new removal proceeding in which Castro-Pu could seek cancellation
of removal under 8 U.S.C. 1229b(b). This procedure, known as repapering, is a
response to the impact of complex changes to the immigration laws on pending
deportation proceedings. See generally Rojas-Reyes v. I.N.S., 235 F.3d 115, 119-26
(2d Cir. 2000). The procedural setting is complex, but the answer to Castro-Pus
contention is not. The argument fails because we lack jurisdiction to review the
Attorney Generals discretionary decision not to repaper a particular case. See Mateo
v. Ashcroft, 102 Fed. Appx. 519, 520-21 (8th Cir. 2004) (unpublished per curiam),
citing 8 U.S.C. 1252(g) and 8 C.F.R. 1240.16. Here, the Department of Homeland
Security (which has assumed the prosecutorial functions of the former Immigration
and Naturalization Service) declined to exercise its repapering discretion, and the BIA
concluded it had no authority to compel repapering. Castro-Pus argument that this
was a denial of due process is without merit. See Rojas-Reyes, 235 F.3d at 125.
C. Finally, Castro-Pu argues that the BIA abused its discretion and denied him
due process by refusing to allow his expert witness to testify and then denying his
motion for a continuance so he could find another expert on changed country
conditions. To be entitled to relief on due process grounds, a petitioner must show
fundamental unfairness and prejudice, that is, that the outcome of the proceeding may
well have been different absent the procedural irregularity. Tun v. Gonzales, 485 F.3d
1014, 1025-26 (8th Cir. 2007). In Tun, we remanded because the IJ excluded
testimony by two experts, a physician, whose examination of petitioner tended to
corroborate his testimony of torture by Burmese authorities, and a professor, whose
published works and frequent travels to Burma qualified him as an expert on current
country conditions. 485 F.3d at 1026-29. Here, the IJ had good reason to find that the
witness was not qualified to provide expert testimony on current country conditions
in Guatemala, unlike the excluded experts in Tun. Moreover, the witnesss testimony,
as set forth in an offer of proof the IJ included in the administrative record, consisted
of general, subjective opinions that would have added little or nothing to the evidence
of changed country conditions contained in the Department of State reports. Thus,
Castro-Pu failed to show either an abuse of discretion or prejudice. We have no
jurisdiction to review the IJs discretionary denial of a continuance. Grass v.
Gonzales, 418 F.3d 876, 879 (8th Cir. 2005), cert. denied, 547 U.S. 1079 (2006).
For the foregoing reasons, we deny the petition for review.


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