Arminda Del Carmen Santacruz v. Loretta E. Lynch , 666 F. App'x 576 ( 2016 )

United States Court of Appeals
For the Eighth Circuit
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No. 15-2102
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Arminda Del Carmen Santacruz
lllllllllllllllllllllPetitioner
v.
Loretta E. Lynch, 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 20, 2016
Filed: December 23, 2016
[Unpublished]
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Before WOLLMAN, SMITH, and COLLOTON, Circuit Judges.
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PER CURIAM.
Arminda Del Carmen Santacruz petitions for review of the Board of
Immigration Appeals’s (BIA) order dismissing her appeal of an immigration judge’s
(IJ) denial of her applications for asylum, withholding of removal, and relief under
the Convention Against Torture (CAT). We deny the petition for review.
Santacruz, a native and citizen of El Salvador, entered the United States
without inspection or documentation in November 2009. After the Department of
Homeland Security initiated removal proceedings, Santacruz conceded that she was
removable and applied for asylum, withholding of removal, and CAT relief. She
asserted that she had been abused in El Salvador by Oscar Garcia, her former
domestic partner and the father of her two children, and that she feared future abuse
by Garcia if she were forced to return.
At a hearing before the immigration judge (IJ), Santacruz testified that she
lived with Garcia in his father’s home from 1995 to 2006 and that Garcia began to
mistreat her after they had been living together for about three years. She stated that
Garcia “would come home very aggressive” and that he mistreated her “[a] lot of
times.” She testified that in 2001 or 2002, Garcia arrived home intoxicated, broke a
mirror, and “hugged” her while holding a piece of broken glass as if “he was going
to do something on [her] throat.” She also testified that on another unspecified
occasion, Garcia came home intoxicated and “very aggressive” and insulted her by
calling her “a big crazy woman and . . . a prostitute.” In addition to incidents
involving Garcia, Santacruz testified that, while she was growing up, both her uncle
and her stepfather attempted to rape her on separate occasions but that her
grandmother intervened each time. Santacruz also stated that her stepfather
threatened her mother with a machete in 1996 or 1997. Although the police were
called, they did not arrest her stepfather. She also testified that after being raped, her
young cousin went to the police, who took her to the hospital but ultimately “didn’t
do anything about it.”
Santacruz stated that in October 2006, Garcia beat her with his fists, kicked her,
and attempted to rape her because she questioned him about his mistress.
Immediately after this incident, Santacruz took her children, who had been playing
outside; left Garcia; and moved in with her mother, who lived some distance away in
the same town. She stated that Garcia came to her mother’s house a few months later,
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threatened to take the children, and again attempted to rape her, but that she was able
to escape by running to her grandmother’s house nearby. She later once saw Garcia
while she was leaving work but was able to get home in a taxi “through different
streets.” Garcia thereafter contacted her on one occasion, when he again came to her
mother’s house and threatened to take the children. After Santacruz threatened to call
the police, Garcia left and did not contact her again. She related no other specific
incidents of abuse by Garcia, and she testified that she was able to work from the time
she left Garcia in 2006 until she left El Salvador in 2009. She also stated that she
never called the police to report Garcia’s abuse and that she never sought medical
treatment for an injury related to that abuse. Santacruz testified that she eventually
decided to leave El Salvador in 2009 because she “was in despair,” she did not have
Garcia’s “support anymore,” and she “felt trapped without . . . any type of protection
from [anyone].” She stated that she was afraid to return to El Salvador because Garcia
might once again hurt her.
The IJ found Santacruz “to be generally credible,” but denied her claim for
asylum because she had failed to establish that she suffered harm rising to the level
of persecution, that the Salvadoran government was unwilling or unable to control
Garcia, or that she was a member of either of her proposed particular social
groups—Salvadoran women in domestic relationships who are unable to leave or
Salvadoran women who are viewed as property by virtue of their domestic
relationships. The IJ also concluded that because Santacruz failed to establish her
eligibility for asylum, she necessarily failed to meet the more demanding standards
to establish her eligibility for withholding of removal and CAT relief.
The BIA upheld the IJ’s decision to deny relief, agreeing with the IJ’s
reasoning in all respects. As to Santacruz’s claim for CAT relief, the BIA
acknowledged that the country reports and other evidence submitted by Santacruz
“demonstrate[d] that domestic violence continues to be a difficult situation in El
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Salvador,” but that the reports and evidence also demonstrated “that the government
[was] taking steps to improve the situation for victims of domestic abuse.”
Santacruz argues that the BIA erred in determining that she had failed to
establish that she suffered past persecution or had a well-founded fear of future
persecution, that she was a member of a cognizable particular social group, and that
the Salvadoran government was unwilling or unable to control her persecutor. We
review the BIA’s decision for substantial evidence on the record as a whole and will
not reverse its “factual findings unless ‘the petitioner demonstrates that the evidence
was so compelling that no reasonable fact finder could fail to find in favor of the
petitioner.’” Garcia v. Holder, 746 F.3d 869, 872 (8th Cir. 2014) (quoting Supangat
v. Holder, 735 F.3d 792, 795 (8th Cir. 2013) (per curiam)); see also 8 U.S.C.
§ 1252(b)(4)(B) (stating that findings of fact cannot be disturbed “unless any
reasonable adjudicator would be compelled to conclude to the contrary”). We review
the BIA’s legal determinations de novo, giving due deference to the BIA’s
interpretation of the statutes and regulations it administers. Salman v. Holder, 687
F.3d 991, 994 (8th Cir. 2012). To the extent the BIA adopted the findings or
reasoning of the IJ, we consider the two decisions together. Garcia, 746 F.3d at 872.
To qualify for asylum, Santacruz bears the burden of demonstrating that she is
unable or unwilling to return to El Salvador because of past persecution or a well-
founded fear of future persecution on account of her “membership in a particular
social group.” See 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1). To qualify for
withholding of removal, Santacruz bears the even higher burden of demonstrating a
“clear probability” that she will be persecuted on account of her membership in a
particular social group. See Khrystotodorov v. Mukasey, 551 F.3d 775, 781 (8th Cir.
2008) (noting “more stringent” standard of proof for withholding of removal).
Persecution is an “‘extreme concept’ that involves the infliction or threat of death,
torture, or injury to one’s person or freedom on account of a protected characteristic,”
Shaghil v. Holder, 638 F.3d 828, 834 (8th Cir. 2011) (quoting Malonga v. Holder,
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621 F.3d 757, 764 (8th Cir. 2010)), and “does not encompass low-level intimidation
and harassment,” Ladyha v. Holder, 588 F.3d 574, 578 (8th Cir. 2009) (quoting
Gutierrez-Olivares v. Mukasey, 533 F.3d 946, 949 (8th Cir. 2008)). Finally, to
qualify for CAT relief, Santacruz must establish that it is more likely than not that she
would be subjected to torture if she were returned to El Salvador—a “more onerous”
standard than that for asylum or withholding of removal “in that a likelihood of
torture requires more than a well-founded fear of persecution” and “may encompass
abuse that is more severe than persecution.” Khrystotodorov, 551 F.3d at 782.
Santacruz had no further contact with Garcia after 2007, and she continued to
live and work in the same town unmolested by Garcia until 2009, when she left El
Salvador for the United States. The mistreatment experienced by Santacruz does not
rise to the level of persecution and was thus insufficiently severe to compel a finding
of past persecution. See, e.g., Garcia-Colindres v. Holder, 700 F.3d 1153, 1157 (8th
Cir. 2012) (holding no past persecution where applicant was detained for eight hours,
beaten, burned with a cigarette, and threatened with violence); Malonga, 621 F.3d at
765 (noting that “evidence of isolated violence does not compel a finding of
persecution” and concluding that beatings, injuries, and detention, although “not
insignificant,” did not compel such a finding (citation omitted)).
Santacruz argues that the BIA did not consider all of the incidents of
mistreatment by Garcia that she suffered in the past. But the BIA agreed with the IJ
that Santacruz did not present sufficient evidence to establish those other alleged
incidents of abuse. Santacruz vaguely referred to Garcia as “always [being] very
aggressive” to her and mistreating her “lot[s] of times,” but she provided no details
to support these assertions. The October 2006 incident was the only occasion in
which Garcia physically assaulted her. The BIA was not required to “list every
possible positive and negative factor in its decision” or “write an exegisis on every
contention.” Malonga, 621 F.3d at 764 (citation omitted). Rather, it was required
only to “consider the issues raised, and announce its decision in terms sufficient to
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enable a reviewing court to perceive that it has heard and thought and not merely
reacted.” Id. (quoting Barragan-Verduzco v. I.N.S., 777 F.2d 424, 426 (8th Cir.
1985)). The BIA recognized and considered the evidence presented by Santacruz and
properly accepted the testimony that was sufficiently detailed and specific.
Despite her failure to show past persecution, Santacruz may still qualify for
asylum if she shows a well-founded fear of future persecution, which requires “both
that [s]he actually fears persecution and that a ‘reasonable person in [her] position
would fear persecution if returned to [her] native country.” Setiadi v. Gonzales, 437
F.3d 710, 714 (8th Cir. 2006) (quoting Berte v. Ashcroft, 396 F.3d 993, 996 (8th Cir.
2005)). We find no error in the BIA’s decision regarding Santacruz’s failure to
establish a well-founded fear of future persecution. Given that Santacruz was able
to live and work unmolested by Garcia for several years before she left El Salvador,
she has not shown that a reasonable person in her position would fear the
complained-of persecution in the future if she were returned to El Salvador. See id.
Santacruz’s failure to establish that she suffered past persecution or that she has
a well-founded fear of future persecution sufficient to qualify for asylum precludes
a finding of the more onerous clear probability of persecution necessary to qualify for
withholding of removal. Khrystotodorov, 551 F.3d at 781; see also Saldana v. Lynch,
820 F.3d 970, 978 (8th Cir. 2016) (“Because the [BIA] permissibly rejected the
petitioners’ claim for asylum, it follows that petitioners did not meet the higher
standard of proof for withholding of removal.”).
Likewise, her insufficient showing on the issue of persecution renders moot her
arguments regarding her membership in one of her proposed particular social groups.
See Saldana, 820 F.3d at 975-77 (declining to address particular-social-group issue,
but denying petition for review due to insufficient evidence that harm inflicted by
private actors was “persecution” that government condoned or was unable to control);
Salman, 687 F.3d at 995 (concluding that because petitioner’s failure to establish
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government acquiescence in harassment was fatal to asylum claim, the court need not
address whether harassment rose to the level of persecution or was based on a
statutorily protected ground); Gutierrez-Vidal v. Holder, 709 F.3d 728, 733 n.1 (8th
Cir. 2013) (noting that because petitioner did not demonstrate harm amounting to
persecution, asylum claim failed regardless of relocation issue). Because a
“likelihood of torture requires more than a well-founded fear of persecution” and
“may encompass abuse that is more severe than persecution,” it also follows that
Santacruz failed to establish that she was entitled to CAT relief. Khrystotodorov, 551
F.3d at 782.
The petition for review is denied.
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