Neivi Guillen-Hernandez v. Eric J. Holder, Jr. ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-1279
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Neivi Demaris Guillen-Hernandez; *
Keni Yamileth Guillen-Hernandez; *
Ana Sinia Guillen-Hernandez, *
*
Petitioners, *
* Petition for Review of
v. * an Order of the Board
* of Immigration Appeals.
Eric H. Holder, Jr., Attorney General *
of the United States, *
*
Respondent. *
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Submitted: October 20, 2009
Filed: January 25, 2010
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Before RILEY, HANSEN, and GRUENDER, Circuit Judges.
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RILEY, Circuit Judge.
Sisters Neivi Demaris Guillen-Hernandez, Keni Yamileth Guillen-Hernandez
(Keni), and Ana Sinia Guillen-Hernandez (collectively, Petitioners), petition for review
of an order of the Board of Immigration Appeals (BIA or Board), affirming an
immigration judge’s (IJ) denial of asylum, withholding of removal, and relief under the
Convention Against Torture (CAT). We deny the petitions.
I. BACKGROUND
On December 2, 1998, in San Ingnacio, El Salvador, Angel Guillen (Guillen),
Petitioners’ father, was told people were stealing tomatoes from his land. When
Guillen went to investigate, Romel Nunez (Romel), a private individual unaffiliated
with the Salvadoran government, shot and killed Guillen and his son Willman
Alexander Guillen-Hernandez, Petitioners’ brother. The killings took place at about
6 or 7 p.m., but the police, along with some forensic technicians, did not arrive until
the next morning. Petitioners’ mother Bequila Hernandez (Hernandez) testified at
Petitioners’ hearing, and described how, at the time of the shootings, she ran to the
scene of the shootings to see what had happened. When police questioned Hernandez
the next morning, Hernandez reported she was afraid of Romel. Despite her fear, she
cooperated with prosecutors and participated in the criminal prosecution of Romel,
including testifying at his trial. Hernandez said Romel went into hiding and only
appeared for one court hearing in his case, to post a bond. Neither Romel nor his
counsel appeared in September 1999 for the final hearing in Romel’s murder case at
which Romel was convicted. An arrest order was issued for Romel at the time.
Although the Nunez family lives in the same area as the Hernandez family, no one has
seen Romel, and Hernandez does not know what happened to him. Romel never
served any time for the murders.
Hernandez testified Romel and his family harassed Hernandez and her family.
During the trial, Romel drove by Hernandez’s home, harassed her verbally, and told
her to stay out of the case against him. Romel’s brother, Armando Nunez (Armando),
also harassed Hernandez and her brother, telling Hernandez on four or five occasions
not to get involved in the case against Romel. Armando also harassed Hernandez’s son
(Petitioners’ brother), Marvin Otonieo (Marvin), when Armando crashed his vehicle
into Marvin’s car. Later, one of Romel’s daughters verbally harassed one of
Hernandez’s daughters (who is not a Petitioner here). Petitioners’ brother Ever was
assaulted when he was attending the university in San Salvador, but there is no
evidence this assault was related to either Romel or Petitioners. When Hernandez told
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the prosecutor about the harassment by Romel and Armando, the prosecutor told her
to avoid them. When she approached the police for help, the police told Hernandez
they would try to watch Romel more closely. Hernandez acknowledges that after
Guillen’s death, and later during the trial, the police kept a closer watch on her home
and sometimes they would watch Romel. A few months after Romel’s trial, at the end
of 1999 or during 2000, Hernandez and Marvin left El Salvador for the United States.
Hernandez testified that she has no idea why her husband and son were murdered, but
she still fears Romel.
Around August or September 2005, over six years after the murders and over
four years after Hernandez’s departure, three separate notes threatening petitioner Keni
(now age 19) were delivered to Petitioners’ home in El Salvador. Keni reported the
first two notes to the police. Two of Keni’s classmates received similar notes, one of
whom was later killed. Keni does not know who sent the notes or who would want to
hurt her or her friends. When Keni took the first two notes to the police, the police said
they would do whatever they could, but Keni did not see any additional protection or
think the police were doing anything to help her.
On December 2, 2005, Petitioners arrived in the United States. During the more
than four years between Hernandez’s departure and Petitioners’ later departures from
El Salvador, Ever and one of their cousins cared for Petitioners. Although Petitioners
never suffered any actual harm while in El Salvador, Hernandez fears for Petitioners’
safety should they be returned.
All eight of Hernandez’s surviving children are now in the United States. In
2006, the government served upon Petitioners notices to appear for removal and
asylum hearings. The Petitioners each conceded removability. The IJ denied
Petitioners’ claims for asylum, withholding of removal, and relief under the CAT
because there was no indication (1) the actions were carried out because of any
protected basis under the Act, or (2) the government of El Salvador acquiesced in any
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way in Romel’s crime. The BIA dismissed Petitioners’ appeal because (1) it agreed
there was no connection between the Petitioners’ fear of violence and an enumerated
ground; and (2) to the extent Petitioners are members of a particular social group, they
have not established any specific threat upon which a finding of a well-founded fear
of persecution connected to an enumerated ground might be based. The Petitioners
now appeal the Board’s dismissal to this court. We have jurisdiction to review this
final order of removal pursuant to 8 U.S.C. § 1252(a).
II. DISCUSSION
A. Standard of Review
We review de novo the BIA’s conclusions of law, but defer to the BIA when it
interprets “ambiguous statutory terms if the interpretation is reasonable and consistent
with the statute.” Cubillos v. Holder, 565 F.3d 1054, 1056 (8th Cir. 2009) (citing De
Brenner v. Ashcroft, 388 F.3d 629, 636 (8th Cir. 2004)). “[A]dministrative findings
of fact are conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). The Attorney General’s
discretionary judgment whether to grant asylum is “conclusive unless manifestly
contrary to the law and an abuse of discretion.” Id. at § 1252(b)(4)(D).
B. Petitioners’ Asylum Claims
“The Secretary of Homeland Security or the Attorney General may grant asylum
to an alien who has applied for asylum in accordance with the requirements and
procedures established . . . if the Secretary . . . or the Attorney General determines that
such alien is a refugee within the meaning of section 1101(a)(42)(A) of this title.” Id.
at § 1158(b)(1)(A). A “refugee” is a person “who is unable or unwilling to return to,
and is unable or unwilling to avail himself or herself of the protection of” his or her
home 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.” Id. at § 1101(a)(42)(A).
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1. Well-Founded Fear of Persecution
Petitioners are able to show a well-founded fear of criminal violence, but not
persecution. “Persecution” is a harm that is “inflicted either by the government of [a
country] or by persons or an organization that the government was unable or unwilling
to control.” Menjivar v. Gonzales, 416 F.3d 918, 921 (8th Cir. 2005) (quoting
Valioukevitch v. INS, 251 F.3d 747, 749 (8th Cir. 2001)). “[A]n applicant seeking to
establish persecution by a government based on violent conduct of a private actor must
show more than ‘difficulty . . . controlling’ private behavior. Rather, the applicant
must show that the government ‘condoned it or at least demonstrated a complete
helplessness to protect the victims.’” Id. (quoting Galina v. INS, 213 F.3d 955, 958
(7th Cir. 2000)) (internal citation omitted). Without this imprimatur of government
officials, asylum claims based on the conduct of non-governmental parties fail. See
id. Whether the requisite inability or unwillingness exists is a question of fact. See id.
Petitioners argue they were persecuted when their father and brother were
murdered and the killer was not captured and punished. Although tragic, the murders
of the Petitioners’ family members were not persecution within the meaning of
§ 1101(a)(42)(A). Petitioners offered no evidence the murders were inflicted by the
government, and the extensive police investigation, trial, and conviction of Romel
amply support the BIA’s finding that the Salvadoran government was willing to control
Romel. Nor did Petitioners present evidence El Salvador condoned the murders or
demonstrated a complete helplessness to protect the Petitioners. On the contrary, none
of the Petitioners experienced any actual harm during the seven years between the
murders and their arrival in the United States. While Romel’s disappearance could
conceivably be evidence of El Salvador’s unwillingness or ineffectiveness to control
Romel, it is also substantial evidence that Romel fears punishment at the hands of a
government ready and willing to enforce its criminal laws. No government imprimatur
of the murder of Petitioners’ family members appears in the record, and therefore we
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cannot say any reasonable adjudicator would be compelled to find these Petitioners
were persecuted.
Next, Petitioners presented evidence their mother and brother were threatened
by the Nunez family a decade ago, during Romel’s trial. There was also evidence
Petitioners’ brother Ever was assaulted in San Salvador. As discussed above, these
private actions, without more, do not amount to persecution. More recently, petitioner
Keni received three threatening notes before she left El Salvador, and another girl who
received similar notes was later murdered. Petitioners offered no evidence of a
connection between the notes and either the government or Romel. Petitioner Keni
testified she does not know who sent her the notes or why anyone would want to hurt
her or her friends, and the girl who was killed had no connection to Romel or his
family. Petitioners may have a well-founded fear of criminal violence should they
return to El Salvador, but due to the lack of any government imprimatur, Petitioners
do not fear “persecution” within the meaning of § 1101(a)(42)(A). We cannot say a
reasonable adjudicator would be compelled to find Petitioners have a well-founded fear
of persecution should they return to El Salvador. See, e.g., Menjivar, 416 F.3d at 921-
23.
2. Causal Nexus to an Enumerated Ground
Assuming, for the sake of argument, Petitioners have a well-founded fear of
persecution, there is no evidence Petitioners fear persecution on account of any of the
grounds enumerated in § 1101(a)(42)(A). Petitioners do not claim they were
persecuted on account of race, religion, nationality, or political opinion. Instead,
Petitioners argue they belong to a particular social group as “children of their father
and young girls.” Under the facts of this case, we suspect Petitioners are not members
of a particular social group within the meaning of § 1101(a)(42)(A), but find it
unnecessary to decide the issue in order to resolve the case.
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If we assume Petitioners’ lineage and status as young female children of their
father qualifies as a particular social group under the statute, there is still no evidence
their membership in this group has any nexus to their fear. The threats against
Hernandez and Marvin have not recurred since the time of Romel’s trial and there were
no threats from Romel or his family toward any of the Petitioners, despite the relatively
close proximity of the two families for several years. There is no evidence Ever was
assaulted because he was Guillen’s son. Nor is there evidence the notes Keni received
bore any connection to Romel. Therefore, to the extent the notes represent a threat,
such threat is not connected with Petitioners’ alleged particular social group.
Petitioners offer insufficient evidence to convince us any reasonable adjudicator
would be compelled to conclude either (1) they were persecuted or have a well-
founded fear of persecution, or (2) any persecution or well-founded fear of persecution
is connected to any ground enumerated in the statute. Petitioners are therefore not
refugees within the meaning of § 1101(a)(42)(A) and are ineligible for asylum under
§ 1158. Because we conclude Petitioners are ineligible for asylum, we do not reach
Petitioners’ argument that the Attorney General should exercise his discretion to grant
Petitioners asylum.
C. Withholding of Removal and the CAT
To the extent Petitioners seek review of the Board’s denial of their claims for
withholding of removal and relief under the CAT, we reject their claims. See Gitimu
v. Holder, 581 F.3d 769, 774 (8th Cir. 2009) (rejecting failed asylum seekers’
withholding of removal claim and request for relief under the CAT when each claim
rested on the same factual basis but required a more rigorous standard of proof).
III. CONCLUSION
The petitions are denied.
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