NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued August 3, 2011
Decided August 25, 2011
Before
WILLIAM J. BAUER, Circuit Judge
DANIEL A. MANION, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 11‐1235
BLANCA MENDEZ‐GARCIA, Petition for Review of an Order of the Board
Petitioner, of Immigration Appeals.
v. A088 351 364
ERIC H. HOLDER, JR.,
Attorney General of the United States,
Respondent.
O R D E R
Blanca Mendez‐Garcia, a citizen of Guatemala, petitions for review of an order of the
Board of Immigration Appeals upholding an Immigration Judge’s denial of asylum and
related relief. We deny the petition.
Mendez‐Garcia entered the United States (for the second time) without travel
documents in 2008 and timely applied for asylum and withholding of removal. She did not
apply for relief under the Convention Against Torture, although the IJ and the Board later
denied CAT relief. As relevant here, she claimed that Florencio Diaz, her ex‐husband and
the father of her daughter, persecuted her on account of her membership in two particular
social groups: married women unable to leave their abusive husbands in Guatemala, and
(after she separated from him) women who have finally left their abusive husbands. She
No. 11‐1235 Page 2
further claimed that he would continue to persecute her for her membership in the latter
group.
Mendez‐Garcia’s marriage to Diaz, which began in 2000, was marred by instances of
shoving, unspecified psychological mistreatment, and his demand that she cook and clean
for him and his family. According to Mendez‐Garcia’s sworn declaration, Diaz hit her when
she was pregnant with their daughter, but she later clarified at a hearing before an IJ that
she meant he had slapped her once. After their daughter Anayeli was born, Mendez‐Garcia
testified, she separated from Diaz and stayed with a friend for two months in a nearby
town, then headed to the United States alone in 2002 to earn money. Anayeli remained in
Guatemala under the care of Mendez‐Garcia’s sister.
According to her testimony and declaration, Mendez‐Garcia returned to Guatemala
about three years later, in 2005, after her mother, her siblings, and Diaz threatened to report
her for child abandonment and take legal custody of Anayeli. Some time after her return,
Diaz happened upon Mendez‐Garcia in town and warned her that he “had a right over”
her. Another time he found her at her sister’s home and “tried” to hit her with a belt.
Although he told Mendez‐Garcia that he was going to take their daughter, he never sought
legal custody or tried to kidnap her.
Finally, some time in 2007, Mendez‐Garcia hired a lawyer, procured a divorce, and
won sole custody of Anayeli. These actions, she testified, caused Diaz’s threats to worsen.
Once, when he encountered her on the street, he warned her that he had friends who could
put her in a car and make her disappear, and he used a telephone to make at least three
other death threats (the specifics of what he said are unclear from the record).
Mendez‐Garcia never asked for a restraining order or police protection. Instead, she
returned to the United States with her daughter in early February 2008, was apprehended
near the border, and told an asylum officer that she feared her ex‐husband in Guatemala.
Less than two months later, and apparently after her release from a brief detention, she
married Jose Villagres, another Guatemalan citizen who resides in the United States without
status. The record is hazy on the details of their courtship. Soon after her marriage, Mendez‐
Garcia filed her application for asylum.
In February 2009, Mendez‐Garcia appeared by televideo from Kansas City, Missouri,
before a Chicago‐based IJ. She related her story, introduced letters from friends and family
attesting to Diaz’s continued desire to kill her, and, under questioning, testified that she had
not sought government protection from Diaz in Guatemala because he was “friends with
the governor of the village,” and because the police “don’t do anything.” To bolster the
latter contention, Mendez‐Garcia introduced U.S. State Department Reports on Human
Rights Practices from 2007 and 2008, both of which referred in nearly identical language to
No. 11‐1235 Page 3
rampant violence against and killings of women; low prosecution rates for rape and
domestic violence; and inadequate police training on domestic violence. Although
Guatemalan judges did issue restraining orders against abusive men, their effectiveness was
sometimes hampered by police reluctance to respond to domestic violence calls. The 2008
report added that a recent law banned “femicide” and established stronger penalties and
new investigative units for dealing with crime against women.
Mendez‐Garcia also introduced a report by a United Nations Special Rapporteur
about violence against women in Guatemala, based on a visit the Rapporteur made to that
country over six days in 2004. The Rapporteur blamed widespread violence against women,
and the perpetrators’ impunity, for women’s lack of confidence in the government.
Moreover, the Rapporteur cited police corruption, inadequate investigation, a low
prosecution rate, and bureaucrats’ complaints of scant resources for protecting women.
The IJ denied all forms of relief, concluding that Mendez‐Garcia had shown neither
past persecution nor a well‐founded fear of future persecution, nor that any harm she faced
was on account of her membership in a particular social group. Mendez‐Garcia appealed
the IJ’s decision to the Board, which dismissed the appeal. The Board concluded that Diaz’s
conduct was not severe enough to constitute past persecution, that Mendez‐Garcia’s fear of
future persecution was unreasonable because Diaz had consistently failed to follow through
on threats over the years, and that Mendez‐Garcia had not adduced specific evidence that
the Guatemalan government was unwilling or unable to protect her from Diaz. This petition
for judicial review followed.
In this court, Mendez‐Garcia challenges the Board’s findings that she did not suffer
past persecution and has no well‐founded fear of future persecution. To obtain reversal, she
must demonstrate that the record compels a conclusion contrary to the Board’s. See
8 U.S.C.
§ 1252(b)(4); INS v. Elias‐Zacarias,
502 U.S. 478, 483‐84 (1992). Because the Board issued its
own decision, rather than merely adopting or supplementing the IJ’s decision, we review
the Board’s order directly. See Ni v. Holder,
635 F.3d 1014, 1018 (7th Cir. 2011); Moab v.
Gonzales,
500 F.3d 656, 659 (7th Cir. 2007). At the outset, the Attorney General concedes that
the Board made no finding concerning Mendez‐Garcia’s particular social group, and
assumes, for the limited purpose of this petition for review, that any harm she fears is on
account of her membership in such a group. We do the same.
Mendez‐Garcia first contends that the threats, physical abuse, and generalized
“despair” she experienced in Guatemala rise to the level of past persecution. But, although
unfulfilled threats can be probative of someone’s future intent to persecute, they generally
do not themselves constitute persecution—particularly in the absence of any past attempt to
follow through on them. Ni,
635 F.3d at 1019; Nzeve v. Holder,
582 F.3d 678, 683 (7th Cir.
2009); Bejko v. Gonzales,
468 F.3d 482, 486 (7th Cir. 2006). Mendez‐Garcia offers no reason
No. 11‐1235 Page 4
why her case lies outside this general rule. As for physical abuse, Diaz’s slapping her once,
shoving her, and swinging a belt in her direction involve less than “significant” physical
force, and thus do not amount to persecution. See Stanojkova v. Holder, ‐‐‐ F.3d ‐‐‐, ‐‐‐,
2011
WL 2725850, at *4 (7th Cir. July 14, 2011). The record does not compel a finding that Diaz’s
abusive acts, taken together, amount to past persecution.
Mendez‐Garcia, though, attempts to skirt cases like Stanojkova by speculating that,
“rather than measuring the level of violence or depravity of the [allegedly persecutory] act
or acts, perhaps we should be measuring the subjective impact on the victim.” But she cites
no judicial or administrative decisions adopting such a broad conception of past
persecution, and we can find none.
Turning to future persecution, Mendez‐Garcia argues that the Board relied too
heavily on her failure to seek police protection after Diaz started making death threats, and
gave too little weight to findings in the State Department and United Nations reports that
Guatemalan authorities respond inadequately to domestic abuse. Because Diaz is a private
(rather than governmental) actor, his deeds can be called “persecution” only if Mendez‐
Garcia shows that the Guatemalan government is unwilling or helpless to protect people
like her. Compare Gatimi v. Holder,
578 F.3d 611, 616‐17 (7th Cir. 2009) (Kenyan government
helpless against Mungiki sect), and Hor v. Gonzales,
421 F.3d 497, 501‐02 (7th Cir. 2005)
(Algerian government helpless against radical Islamists), with Chatta v. Mukasey,
523 F.3d
748, 753 (7th Cir. 2008) (Pakistani government not helpless against religious sect), and Garcia
v. Gonzales,
500 F.3d 615, 618‐19 (7th Cir. 2007) (Colombian government not helpless against
guerilla group). Specific findings in country reports may sometimes establish that
contacting police would be futile. See Poradisova v. Gonzales,
420 F.3d 70, 76, 80 (2d Cir. 2005)
(Jewish petitioners’ failure to seek police protection from non‐government actors explained
by police antisemitism in Belarus).
But the reports that Mendez‐Garcia submitted reflect only indirectly on the
government’s likely response to the situation she will face if returned to Guatemala. They
speak broadly about high rates of rape and murder, low conviction numbers, and especially
the police’s reluctance to enforce restraining orders against some men who abuse their
spouses, but shed little light on the question whether a divorcee, now remarried to another
man, can obtain enforcement of a restraining order against her ex‐husband. Although the
Board might have discussed the country reports in greater detail, they do not compel
reversal of the conclusion that Mendez‐Garcia failed to shoulder her burden of
demonstrating the Guatemalan government’s unwillingness or inability to protect her from
Diaz. (Neither are we compelled to infer from Diaz’s friendship with someone in the local
government that the police would acquiesce in future persecution of Mendez‐Garcia,
especially given her failure to discuss that friendship in the argument section of her brief.)
No. 11‐1235 Page 5
At all events, we are not compelled to reverse the Board’s alternative finding that the
time Mendez‐Garcia and her daughter spent unharmed in Guatemala fatally undermines
the reasonableness of her fear that Diaz will follow through on his threats. Although we do
not dismiss threats lightly, whether they give rise to a well‐founded fear of persecution in a
particular case depends on their context. See Pathmakanthan v. Holder,
612 F.3d 618, 624 (7th
Cir. 2010); Nzeve,
582 F.3d at 685. Here, Diaz’s past violence includes shoving, a slap, and
swinging a belt without making contact, none of which shows a propensity for murder. And
Diaz has a substantial history of bluffing. When Mendez‐Garcia left their daughter in
Guatemala for three years, Diaz did not seek custody, although he threatened to do so.
Then, from 2005 to 2008, he again warned Mendez‐Garcia that he would somehow take
Anayeli from her, but took no steps in that direction. During the same period, he asserted
that he still had a “right” he planned to exercise over her, but did nothing about it. It is
unclear from the record whether Diaz even bothered to participate in the 2007 divorce and
custody proceedings, which happened about five years after the couple split. Finally, he
made at least four death threats after the divorce, but did nothing to follow through before
she left the country in 2008. This evidence permitted the Board to conclude that Diaz
presents Mendez‐Garcia with no real chance of death, violence, or the kidnaping of her
daughter. And it does not compel us to conclude otherwise.
Finally, Mendez‐Garcia does not question the Board’s denial of withholding of
removal and relief under the CAT, nor did she question the IJ’s denial of these forms of
relief when she appealed to the Board. Thus, she has waived any related claims. See Haxhiu
v. Mukasey,
519 F.3d 685, 692 (7th Cir. 2008); Huang v. Gonzales,
403 F.3d 945, 951 (7th Cir.
2005).
Accordingly, we DENY the petition for review.
