Jose Romero-Larin v. Jefferson B. Sessions, III ( 2018 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-3903
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Jose Noel Romero-Larin
lllllllllllllllllllllPetitioner
v.
Jefferson B. Sessions, III, Attorney General of the United States
lllllllllllllllllllllRespondent
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No. 17-1868
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Jose Noel Romero-Larin
lllllllllllllllllllllPetitioner
v.
Jefferson B. Sessions, III, Attorney General of the United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: October 19, 2017
Filed: May 8, 2018
[Unpublished]
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Before GRUENDER and BENTON, Circuit Judges, and TUNHEIM, District
Judge.1
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PER CURIAM.
Jose Noel Romero-Larin, a native and citizen of El Salvador, entered the
United States on June 23, 2010. On June 28, 2010, he was apprehended by the
Department of Homeland Security, which later initiated removal proceedings
pursuant to 8 U.S.C. § 1182(a)(7)(A)(i)(I). Romero-Larin eventually filed an
application seeking asylum, withholding of removal, and relief under the Convention
Against Torture (“CAT”). In February 2015, Romero-Larin testified before an
Immigration Judge (“IJ”) regarding his fear of returning to El Salvador. He explained
his role in the Coordinating Committee of Churches (“CCC”) of San Martin and
discussed the close relationship between CCC and a prominent political party, the
Farabundo Marti National Liberation Front (“FMLN”). The municipality of San
Martin created CCC in 2007, when FMLN was in power, and proceeded to fund and
support some activities sponsored by CCC. Romero-Larin began working with CCC
at its inception. CCC is perceived to be “red”; that is, supportive of FMLN. The
right-wing Nationalist Republican Alliance (“ARENA”) is thought to be unsupportive
of CCC’s association with FMLN.
1
The Honorable John R. Tunheim, Chief Judge, United States District Court for
the District of Minnesota, sitting by designation.
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Romero-Larin also testified about death threats he received in 2007 and 2010,
which ultimately prompted his flight to the United States. In late 2007, he received
a phone call telling him “to stop doing or interfering into the politics” and threatening
that, if he continued, “very bad things” would follow. He received a similar call two
weeks later but “did not give any importance” to either call because he did not
consider himself to be involved in anything political. Romero-Larin did not receive
any more threats until early 2010, when he was approached by a young man whom
he recognized as a member of the gang Mara-18. The man told Romero-Larin that
“some politician paid . . . the Mara-18 to kill [him] because [he] was getting involved
in politics for this political party.” Romero-Larin suspected the order came from a
politician belonging to the ARENA party. After the gang member’s threat, Romero-
Larin’s cousin, also a member of the Mara-18, told Romero-Larin’s mother that
Romero-Larin should leave because there was an order for him to be killed. Romero-
Larin claims he did not report the threats because he knew of people being killed for
doing so. He came to the United States soon after learning of his cousin’s warning.
After conducting an evidentiary hearing, the IJ found Romero-Larin’s
testimony credible but denied his application for asylum, finding that Romero-Larin
failed to establish past persecution or a well-founded fear of future persecution.
Romero-Larin appealed the IJ’s decision to the Board of Immigration Appeals
(“BIA”). The BIA agreed with the IJ and dismissed Romero-Larin’s appeal. In
addition to finding no clear error of fact or mistake of law in the IJ’s assessment, the
BIA also found that Romero-Larin’s “asylum and withholding of removal claims fail
because he did not establish that the source of harm is the government or an
individual or group the government is unable or unwilling to control.” Romero-Larin
timely petitioned this court to review the BIA’s decision. While this first petition was
pending, gang members in El Salvador shot and killed Romero-Larin’s father.
Romero-Larin then filed a motion to reopen the proceedings before the BIA to present
evidence of his father’s murder. The BIA considered the evidence but denied the
motion, finding that it would “not . . . change the outcome of the proceedings.” In a
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second petition, Romero-Larin asks this court to review that decision as well, arguing
that the BIA abused its discretion by denying the motion. We consider each petition
in turn.
To establish eligibility for asylum, an applicant carries the burden of showing
that he meets the definition of “refugee”: a person who is “unable or unwilling to
return to . . . [his] 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.” 8 U.S.C. § 1101(a)(42). If the applicant can establish
past persecution, then he is entitled to a presumption that his fear of future
persecution on the basis of the original claim is well-founded. 8 C.F.R.
§ 1208.13(b)(1). Furthermore, “as relevant to past persecution or a well-founded fear
of future persecution, the applicant must show that the assaults were either condoned
by the government or were committed by private actors that the government was
unwilling or unable to control.” Gutierrez-Vidal v. Holder, 709 F.3d 728, 732 (8th
Cir. 2013) (internal quotation marks omitted).
“We review the [BIA’s] decision for substantial evidence, and we must uphold
administrative findings of fact unless any reasonable adjudicator would be compelled
to conclude to the contrary.” Nanic v. Lynch, 793 F.3d 945, 947 (8th Cir. 2015)
(citing 8 U.S.C. § 1252(b)(4)(B); INS v. Elias-Zacarias, 502 U.S. 478, 481 & n.1
(1992)). “Because the BIA’s decision is the final decision of the agency, it is the
subject of our review. To the extent, however, that the BIA adopted the findings or
the reasoning of the IJ, we also review the IJ’s decision as part of the final agency
action.” Falaja v. Gonzales, 418 F.3d 889, 894 (8th Cir. 2005) (citation omitted); see
also Singh v. Mukasey, 543 F.3d 1, 4 (1st Cir. 2008) (“When the BIA both adopts the
decision of an immigration judge and adds a new ground for upholding the result, this
court reviews the IJ’s decision as though it were the BIA’s to the extent of the
adoption, and the BIA’s decision as to the additional ground.” (internal quotation
marks omitted)).
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Here, the BIA permissibly concluded that Romero-Larin’s asylum claim failed
“because he did not establish that the source of harm is the government or an
individual or group the government is unable or unwilling to control.” As we have
explained, “To establish persecution based on the conduct of private actors, an
applicant must show that the government either condones the conduct or is unable to
protect the victims.” Saldana v. Lynch, 820 F.3d 970, 976 (8th Cir. 2016). In other
words, the government in question must demonstrate “‘complete helplessness’ to
protect victims of private violence.” Id. at 977. Because the government’s ability to
control the persecutors is a question of fact, see id. at 976, we must uphold the
agency’s finding “unless any reasonable adjudicator would be compelled to conclude
to the contrary,” 8 U.S.C. § 1252(b)(4)(B).
Romero-Larin argues that the BIA erroneously premised its conclusion
regarding the “government control” issue on the notion that the ARENA party is his
persecutor. Romero-Larin contends that “[c]ontrol over that party is immaterial,
because the ARENA party is not [his] persecutor.” Instead, he argues, his persecutor
is the Mara-18 gang because that is who “actually threatened to kill him.” Romero-
Larin proceeds to ground his entire “government control” argument in the Salvadoran
government’s alleged inability to control the Mara-18, without pointing to any
evidence that suggests the Salvadoran government is unable or unwilling to control
the ARENA party.
Both the IJ and BIA considered ARENA to be the true source of the threat.
Indeed, the IJ explained that Mara-18 was just “the weapon delivering the threats,”
and the BIA referred to ARENA as Romero-Larin’s “alleged persecutor.” We accept
that reasonable characterization as supported by substantial evidence on the record
as a whole. After all, the Mara-18 member who delivered the threat told Romero-
Larin that “a member of a political party” had hired the gang to kill him, and Romero-
Larin offered no reason why Mara-18 would persecute him independent of ARENA’s
request. In fact, Romero-Larin suspects that ARENA was responsible for the threat.
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Thus, given that Romero-Larin believes he is being targeted by ARENA for his work
with CCC and its association with FMLN—“the majority, ruling party”—and given
that he offers no evidence that the FMLN government would be unwilling or unable
to control a minority party, a reasonable adjudicator would not be compelled to find
that the Salvadoran government is helpless to control ARENA. Therefore, the BIA
permissibly concluded that Romero-Larin failed to show persecution by an individual
or group that the government is unable or unwilling to control and denied his asylum
claim.2
Since Romero-Larin has not met the standard for asylum, “it follows that [he]
did not meet the higher standard of proof for withholding of removal.” Saldana, 820
F.3d at 978.3
In his second petition, Romero-Larin challenges the BIA’s denial of his motion
to reopen after he submitted evidence that his father had been shot and killed in 2016,
allegedly by a member of Mara-18. He claims the BIA distorted his claim by failing
to consider whether the new evidence rendered his fear of persecution objectively
reasonable and by instead considering the effect the new evidence would have on,
among other things, the “government control” issue.
2
Because the “government control” issue is dispositive of both the “past
persecution” and “well-founded fear of future persecution” determinations—and thus
dispositive of Romero-Larin’s claim for asylum—we decline to address other issues
raised by the parties. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (per curiam)
(“As a general rule courts and agencies are not required to make findings on issues
the decision of which is unnecessary to the results they reach.”).
3
Romero-Larin does not meaningfully argue on appeal that he meets the
standard for relief under the CAT. Therefore, we deem that claim waived. See Chay-
Velasquez v. Ashcroft, 367 F.3d 751, 756 (8th Cir. 2004).
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“We review the BIA’s denial of the motion to reopen for abuse of discretion.”
Villatoro-Ochoa v. Lynch, 844 F.3d 993, 994 (8th Cir. 2017) (internal quotation
marks omitted). The BIA’s decision should be overturned only “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.” Quinteros v. Holder, 707 F.3d 1006, 1009 (8th Cir. 2013).
Romero-Larin carries a “heavy burden,” see INS v. Abudu, 485 U.S. 94, 110 (1988),
and must show the new facts “would likely change the result in the case” in order to
merit a reopening of proceedings, Xiu Ling Chen v. Holder, 751 F.3d 876, 878 (8th
Cir. 2014).
Because the reasonable-fear determination would not have changed the
outcome of the first petition—where the BIA independently grounded its decision in,
among other things, Romero-Larin’s failure to show the government was unwilling
or unable to control those threatening Romero-Larin—and because Romero-Larin
expressly argues that he limited his motion to reopen to the reasonable-fear issue, the
BIA did not abuse its discretion in denying the motion. Even if the BIA were to rule
in Romero-Larin’s favor on the reasonable-fear issue, he would nonetheless be denied
asylum. See id.For the foregoing reasons, we deny both petitions for review.4
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4
We deny as moot the Government’s motion to strike portions of Romero-
Larin’s briefs that rely on various news articles because none of the contested briefing
is necessary to the resolution of the case.
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