Daniel Alberto Sanez v. Attorney General of the United States

IMG-081 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-3728
___________
DANIEL ALBERTO SANEZ,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A097-959-669)
Immigration Judge: Honorable Miriam K. Mills
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 20, 2010
Before: RENDELL, FISHER and GARTH, Circuit Judges.
(Filed: January 26, 2010)
___________
OPINION OF THE COURT
___________
PER CURIAM.
Daniel Alberto Sanez (“Sanez”) has filed a petition for review of a final order of
removal entered by the Board of Immigration Appeals (“BIA”). For the reasons that
follow, we will deny the petition.

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The IJ characterized Frecuencia Latina as “formerly a financial puppet of1
Fujimori.” Appendix at 118. Sanez himself acknowledged that the station illegally took
money from the government in exchange for portraying Fujimori in a positive light and
attacking opponents of the administration. Id. at 230-31.
2
I.
Sanez, currently age thirty-seven, is a native and citizen of Peru who entered the
United States in 2001 on a non-immigrant visa and overstayed. In proceedings before the
Immigration Judge (“IJ”), Sanez conceded his removability due to the overstay, and he
applied for asylum, withholding of removal, relief under the Convention Against Torture
(“CAT”), and, alternatively, voluntary departure. Sanez purportedly fears a return to Peru
because of his political ties and past activities as a television news producer and reporter.
Beginning in 1996, Sanez was employed as an executive producer at Frecuencia
Latina, a Peruvian television station that aired news programming. At the time, the
station was aligned with the then-President of Peru, Alberto Fujimori. However, in1
1997, the station planned to air a story critical of the Fujimori administration, ultimately
leading to the station’s chairman, Baruch Ivcher, being forced to leave Peru and stripped
of his citizenship so that he could no longer own the station. Ivcher was replaced as
chairman by Mendel Winter, a Fujimori supporter whose wife, Maria Teresa Braschi, was
a reporter and program host at Frecuencia Latina.
With the station back in the Fujimori fold, Sanez and Braschi developed a story
prior to the 2000 presidential election that was critical of candidate Alejandro Toledo

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3
based on an allegation that Toledo had fathered an illegitimate child. Sanez thereafter
received threatening phone calls at his office and death threats on his personal cell phone,
presumably from Toledo supporters. Sanez also worked as a reporter covering the Toledo
campaign. On one occasion, a crowd of Toledo supporters physically assaulted Sanez
and other members of a Frecuencia Latina crew covering a Toledo rally. Sanez suffered
no injury from the assault.
After Fujimori’s contested election victory in 2000, Toledo and his supporters
allegedly launched a campaign of retaliation against employees of Frecuencia Latina.
Moreover, Toledo supporters released a video showing a Fujimori government official
accepting bribes. In the wake of the scandal that followed, Fujimori resigned and left
Peru, and Toledo eventually was elected President.
In December 2000, Ivcher (the former chairman of Frecuencia Latina) returned to
Peru with the support of Toledo and regained control of the station. Ivcher fired Sanez,
Winter, and Braschi. Sanez allegedly was blacklisted as a “traitor” and unable to find
employment in the television news business. Winter was tried and convicted in Peru on
charges of taking bribes from Fujimori officials. Braschi moved to Ecuador but returned
briefly to Peru in 2001 to support her husband’s trial defense, and also returned in 2005 to
file for separation from her husband. Peruvian authorities never arrested or detained
Braschi on her visits.

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4
Sanez left Peru for the United States in March 2001, fearing that he would be
detained and interrogated in Peru due to his role with Frecuencia Latina and his support
for Fujimori. Sanez believes that the Peruvian government remains interested in indicting
Braschi and therefore would be interested in interrogating Sanez to obtain information
against Braschi, and that the current government, under President Alan Garcia, would
persecute Sanez due to his past support for Fujimori.
Sanez filed his application for asylum in 2004, in support of which he submitted,
inter alia, affidavits from Braschi and other former colleagues, and various reports
attesting to the harassment of journalists in Peru. The IJ rejected the asylum application
on the ground that it was untimely filed after the expiration of the one-year period in
which to file. The IJ also held that Sanez failed to meet his burden of proof for
withholding of removal or protection under the CAT. The IJ granted Sanez’s alternative
request for voluntary departure.
The BIA dismissed Sanez’s appeal. It held that Sanez failed to prove past
persecution because his claims of harassment, threats, and a single attack by supporters of
Toledo do not rise to the level of harm necessary to constitute persecution. In addition,
the firing of Sanez from his job by the new, pro-Toledo station owner did not amount to
persecution, particularly in light of Sanez’s testimony that he could have found other
work if he had stayed in Peru.

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5
The BIA also found no clear probability of future persecution. It observed that
Sanez is not similarly situated to other Peruvian journalists who have suffered harassment
and intimidation. Sanez has never been arrested or interrogated, and the record does not
reveal any ongoing threat to Fujimori supporters. The BIA noted that Winter was
convicted of public corruption because he accepted money from the Fujimori government
to air pro-Fujimori programs, and that Braschi, a known journalist and Fujimori
supporter, visited Peru after Winter’s arrest and was not arrested. Thus, despite Sanez’s
personal knowledge of his station’s involvement in public corruption, and his alleged
knowledge regarding various politicians’ participation in that corruption, the BIA
observed that no one from the Peruvian government, either under Toledo or currently
under Garcia, has ever contacted Sanez. The BIA concluded that Sanez’s fear that he will
be harmed upon return to Peru is “not supported by the record.” Appendix at 3. Finally,
the BIA denied CAT relief, concluding that Sanez failed to show that it is more likely
than not that he will be tortured in Peru. Like the IJ, the BIA entered a voluntary
departure order. Sanez timely filed a petition for review in this Court.
II.
We have jurisdiction under 8 U.S.C. § 1252(a)(1). Where, as here, the BIA issued
its own decision, we review that decision, and not the decision of the IJ. Wong v. Att’y
Gen., 539 F.3d 225, 230 (3d Cir. 2008). The BIA’s conclusions regarding past
persecution and the fear of future persecution are findings of fact, reviewed solely for

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We review de novo the question whether Sanez was denied due process. See2
Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir. 2003).
6
“substantial evidence.” Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006). We
also review the denial of CAT relief for substantial evidence. Zubeda v. Ashcroft, 333
F.3d 463, 471 (3d Cir. 2003). Under the deferential substantial evidence standard, agency
findings “must be upheld unless the evidence not only supports a contrary conclusion, but
compels it.” Abdille v. Ashcroft, 242 F.3d 477, 484 (3d Cir. 2001).
Sanez first contends that he was denied due process because the BIA allegedly
failed to make an “individualized determination” of the record evidence supporting his
claim for withholding of removal. Essentially, Sanez argues that the BIA failed to
consider or rule upon each alleged instance of his past persecution, and failed to consider
the evidence of past persecution as a whole and in connection with objective evidence of
the persecution of journalists generally in Peru. As a result, Sanez contends, the BIA
erred in concluding that he failed to prove eligibility for withholding of removal.
This Court has held that, for due process to be satisfied, an alien must receive,
inter alia, an “individualized determination” of his interests. Abdulai v. Ashcroft, 239
F.3d 542, 550 (3d Cir. 2001). Due process has been satisfied where there is “sufficient2
indicia” that the agency gave “particularized consideration” to the evidence of record. Id.
We find no indication here of a due process violation. The BIA clearly considered the
record evidence supporting the claim of past persecution, and it addressed Sanez’s

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Moreover, the BIA made express reference in its decision to much of the3
evidence that Sanez complains was overlooked. For example, Sanez asserts that the BIA
“failed to discuss why [Sanez] himself would differ from opposition journalists discussed
in th[e] objective evidence” of record regarding the mistreatment of opposition
journalists in Peru. Petitioner’s Br. at 20. The BIA, however, expressly found that the IJ
“correctly determined that [Sanez] is not similarly situated to other journalists who, as
described in the record, have suffered harassment and intimidation by the public and
government.” Appendix at 3. This statement of its reasoning was plainly sufficient to
survive due process scrutiny.
7
various contentions regarding his fear of returning to Peru under the current Garcia
administration, finding that fear was “not supported by the record.” Appendix at 3.
While Sanez seeks to fault the BIA for failing to mention each piece of record evidence
that he finds relevant to his case, due process does not require the BIA to offer such a
detailed explication of its reasoning. See, e.g., Myat Thu v. Att’y Gen., 510 F.3d 405,
416 n.16 (3d Cir. 2007) (observing that “[c]onsideration of all evidence does not require
comment on all evidence”). In short, we are satisfied that the BIA rendered the requisite3
individualized determination.
Moreover, substantial evidence supports the decision to deny withholding of
removal. To prevail on this claim, Sanez had to show that he suffered past persecution on
the basis of a protected ground, or that such persecution is more likely than not to occur in
the future. See Kaita v. Att’y Gen., 522 F.3d 288, 296 (3d Cir. 2008). With regard to
past persecution, Sanez testified that he received death threats by telephone, that he was
assaulted at a rally by Toledo supporters but not injured, and that he was fired from
Frecuencia Latina and blacklisted after the station turned pro-Toledo. In addition, the

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As we have explained, persecution includes “threats to life, confinement, torture,4
and economic restrictions so severe that they constitute a threat to life or freedom,” but it
“does not encompass all treatment that our society regards as unfair, unjust, or even
unlawful or unconstitutional.” Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993). The
events of which Sanez complains simply do not meet this narrow definition.
8
evidence established that journalists have been interrogated and attacked in Peru, and that
Winter, the former chairman of Frecuencia Latina, was tried and convicted for accepting
bribes from the Fujimori government. This evidence does not compel a finding of past
persecution.
While death threats can constitute persecution, such threats must be “so menacing
as to cause significant actual suffering or harm.” Gomez-Zuluaga v. Att’y Gen., 527 F.3d
330, 341 (3d Cir. 2008) (quotation marks omitted); see also Li v. Att’y Gen., 400 F.3d
157, 164 (3d Cir. 2005) (explaining that “unfulfilled threats must be of a highly imminent
and menacing nature in order to constitute persecution”). There is no evidence that Sanez
suffered significant actual suffering or harm from the anonymous threats that he received.
Similarly, the lone physical assault at the Toledo rally resulted in no actual harm or injury.
Finally, Sanez failed to show that his firing and blacklisting engendered economic
restrictions so severe as to constitute persecution, particularly in light of his testimony that
he could find another job in Peru (albeit not a job in television news reporting). Cf. Li,
400 F.3d at 168 (explaining that “deliberate imposition of severe economic disadvantage
... may constitute persecution” if it threatens life or freedom). Even viewed collectively,
this evidence does not compel the conclusion that Sanez suffered persecution in the past.4

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Sanez suggests that Braschi’s relative prominence has insulated her from harm5
while visiting Peru, whereas he would have no such protection because he is a relatively
obscure figure. Petitioner’s Br. at 30-31. But Braschi’s husband, Winter, was himself a
prominent figure, and he was tried and convicted, which at least arguably suggests that
prominence is not what has protected Braschi from harm.
9
As to future persecution, Sanez testified that his former associates have been
persecuted, and he argues that, contrary to the BIA’s finding, he is similarly situated to
journalists who have been persecuted in Peru, making it likely that he will be persecuted
upon return. Substantial evidence, however, supports the BIA’s conclusion that Sanez is
not similarly situated to journalists who have been persecuted. Sanez was never arrested,
interrogated, or persecuted while in Peru, and he has not established the existence of a
current threat of persecution faced by journalists who, like Sanez, were Fujimori
supporters. Furthermore, as the BIA noted, Winter was convicted of public corruption in
Peru, and, despite Sanez’s unsupported suggestion to the contrary, the evidence in the
record does not compel a conclusion that Winter’s conviction was a form of persecution
rather than a proper prosecution for unlawful conduct. In addition, Braschi has since
visited Peru, and the authorities have not questioned or detained her. On this record, we5
cannot disturb the BIA’s finding that Sanez failed to establish grounds for withholding of
removal.
Finally, Sanez argues that the BIA erred in denying relief under the CAT because
he believes that he likely will be tortured at the hands of the government, particularly
when considering the evidence of violence against journalists. Petitioner’s Br. at 34-35.

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10
To prevail on his CAT claim, Sanez had to show, through objective evidence, that it is
more likely than not that he will be tortured in Peru. See 8 C.F.R. § 208.16(c)(2);
Sevoian v. Ashcroft, 290 F.3d 166, 174-75 (3d Cir. 2002). Torture is defined as the
intentional infliction of severe pain or suffering “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. § 208.18(a)(1). “[I]n order to obtain relief under the CAT, a petitioner must
show that the alleged torturous acts by the government will be specifically intended to
inflict severe physical or mental pain or suffering.” Pierre v. Att’y Gen., 528 F.3d 180,
186 (3d Cir. 2008) (en banc) (quotation marks omitted).
Sanez relies upon the 2005 State Department Country Report on Human Rights
Practices, noting evidence cited in the Report of the torture of detainees in Peru, as well
as acts of violence against journalists. Petitioner’s Br. at 35. Sanez has not, however,
established that he personally faces a likelihood of being detained or tortured by
government officials upon his return. As the BIA noted, “the record does not indicate any
ongoing threats to Fujimori supporters.” Appendix at 3. In addition, the evidence in the
Country Report does not compel the conclusion that the current Peruvian government is
likely to torture Sanez.
III.
For the foregoing reasons, we will deny the petition for review.

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