Ingrid Marroquin-Ochoma v. Eric H. Holder, Jr. ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-2760
___________
Ingrid Veronica Marroquin-Ochoma, *
also known as Melissa Diaz, *
*
Petitioner, *
* Petition for Review of an Order of
v. * the Board of Immigration Appeals.
*
1
Eric H. Holder, Jr., United States *
Attorney General, *
*
Respondent. *
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Submitted: March 10, 2009
Filed: July 28, 2009
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Before MURPHY, MELLOY, and SHEPHERD, Circuit Judges.
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MELLOY, Circuit Judge.
Ingrid Marroquin-Ochoma, a native and citizen of Guatemala, petitions for
review of a decision by the Board of Immigration Appeals (the “BIA”) denying her
application for asylum, withholding of removal, and relief under the Convention
Against Torture (the “CAT”). We deny her petition for review.
1
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General
Eric H. Holder, Jr., is substituted for former Attorney General Michael B. Mukasey
as Respondent in this case.
I.
Marroquin-Ochoma entered the United States in May of 2005. Removal
proceedings were commenced against her on March 31, 2006. Marroquin-Ochoma
conceded removability, and she applied for relief from removal on grounds of
persecution on account of a particular social group and political opinion. In support
of her application, Marroquin-Ochoma testified and submitted evidence that she left
Guatemala because gang members had threatened her on account of her position as
someone with access to money and on account of an imputed anti-gang political
opinion.
From 2003 until early 2005, Marroquin-Ochoma worked with three other
people in the payroll department of a large export company. She describes her
employment as being in a bank on the company premises, and she frequently handled
cash in her position. Shortly after she started with the company, Marroquin-Ochoma
began receiving threatening notes at home from gang members. At least one note was
signed “MS,” for the gang known as Mara Salvatrucha. The notes demanded money
and pressed her to join the gang. Gang members also called her at home and told her
family to either give the gang money or turn Marroquin-Ochoma over to the gang.
The notes and calls threatened her life and the lives of her family members if the
demands were not met. She was never contacted in person. Although Marroquin-
Ochoma did not take the threats seriously at first, she grew increasingly concerned as
the threats continued.
Marroquin-Ochoma informed her employer of the threats, but she did not ask
for any assistance from the company’s security department, even though security
officers would sometimes escort employees home. She did report the threats to the
police, however. Although for a time the police sent extra patrols to her
neighborhood, the police took no other action. The police instructed Marroquin-
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Ochoma to report her claims to the public prosecutor, but she did not do so because
she believed the gang’s power made such efforts futile.
Approximately one year after Marroquin-Ochoma joined the company, the
threats caused her to leave her job and eventually flee Guatemala. The threats against
her family continued even after she left, and gang members beat her father in reprisal
for her refusal to concede to the gang’s demands.
The immigration judge (the “IJ”) found Marroquin-Ochoma generally credible,
but he ultimately denied each of her claims. The IJ determined that Marroquin-
Ochoma’s “resistance to the role of gangs” did not constitute a political opinion. The
IJ also concluded that Marroquin-Ochoma failed to show that the threats were based
on her membership in a particular social group, because “being a person in a position
of responsibility and with direct access to money[,] who refused demands for money
and recruitment by the gangs,” does not make someone a member of a particular
social group. The IJ further held that even if Marroquin-Ochoma had established
membership in a particular social group, she had not established past persecution or
a well-founded fear of future persecution for purposes of asylum—or established a
clear probability that her life or freedom would be threatened for purposes of
withholding of removal—because she had not shown that the Guatemalan government
was unable or unwilling to control the gang. Finally, the IJ found that Marroquin-
Ochoma had not shown government acquiescence, as required to support her CAT
claim. On administrative appeal, the BIA affirmed and adopted the opinion of the IJ,
adding that Marroquin-Ochoma had failed to demonstrate that the threats rose to the
level of persecution.2
2
Marroquin-Ochoma’s opening brief does not present arguments challenging
the BIA’s determination that the threats did not rise to the level of persecution, and the
Government argues she has therefore waived her past-persecution claim and cannot
show a well-founded fear of future persecution. We decline to address this argument
because, even assuming Marroquin-Ochoma has shown “persecution or a well-
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Marroquin-Ochoma now argues before this court that 1) remand is necessary
for meaningful consideration as to whether the threats were on account of an imputed
anti-gang political opinion and that 2) the BIA “erred in holding that the government
of Guatemala is able to control the Mara Salvatrucha.”
II.
To be eligible for asylum, an applicant must show that she is unable or
unwilling to return to her country of origin “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)(A). “Where there has been
persecution on account of political opinion, it does not matter if the applicant actually
holds the political opinion that the persecutor attributes to her. Rather, we consider
the political views the persecutor rightly or in error attributes to a victim.” De
Brenner v. Ashcroft, 388 F.3d 629, 635 (8th Cir. 2004) (internal quotation and
alteration omitted). It is the political opinion attributed to the victim, not the political
opinion of the persecutor, that is ultimately relevant. Turay v. Ashcroft, 405 F.3d 663,
668 (8th Cir. 2005) (citing INS v. Elias-Zacarias, 502 U.S. 478, 482 (1992)). The
political opinion must be “‘at least one central reason’ for [the] persecution.”
Carmenatte-Lopez v. Mukasey, 518 F.3d 540, 541 (8th Cir. 2008) (quoting 8 U.S.C.
§ 1158(b)(1)(B)(I)). But the persecution need not be solely, or even predominantly,
on account of the imputed political opinion. Parussimova v. Mukasey, 555 F.3d 734,
739–41 (9th Cir. 2009); cf. De Brenner, 388 F.3d at 636. Here, Marroquin-Ochoma
argues that the gang members’ threats were motivated by an anti-gang political
opinion that the gang members imputed to her based on her refusal to join the gang
or otherwise succumb to their extortionate demands.
founded fear of persecution,” her claims fail on the grounds at the forefront of her
petition.
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Where, as here, the BIA adopts the decision of an IJ but adds additional
reasoning, we review both decisions. Setiadi v. Gonzales, 437 F.3d 710, 713 (8th Cir.
2006). We defer to the agency’s “interpretation of ambiguous statutory terms if the
interpretation is reasonable and consistent with the statute,” De Brenner, 388 F.3d at
636 (internal quotation omitted), and we review the IJ’s factual findings for
substantial evidence in light of the record as a whole, Hassan v. Gonzales, 484 F.3d
513, 516 (8th Cir. 2007). “To reverse the finding that the alleged persecution was not
based on a protected ground, it is necessary that the record compel the finding that a
protected ground motivated the [persecutor’s] actions.” Gomez v. Gonzales, 425 F.3d
543, 545 (8th Cir. 2005) (citing Elias-Zacarias, 502 U.S. at 481 & n.1).
At the outset, we reiterate that “careful attention to the particular circumstances
surrounding the alleged persecution remains necessary even if the persecution is
generally categorized as extortion or recruitment.” De Brenner, 388 F.3d at 638 n.2;
see also Zhang v. Gonzales, 426 F.3d 540, 546–47 (2d Cir. 2005) (rejecting “the
categorical rule that opposition to government extortion cannot serve as the basis for
a claim based on political opinion” and instead requiring “examination of the political
context in which the dispute took place” (internal quotations omitted)). Motives of
extortion and recruitment do not, therefore, preclude a finding of additional motives
that may concern a protected ground. See De Brenner, 388 F.3d at 637.
We find little indication here, however, that the IJ imposed an impermissible
“single motive” requirement at the expense of a meaningful inquiry. See id. (“[T]he
BIA in this instance improperly demanded that the persecution occur solely due to a
protected basis.”). Rather, the IJ stated that he “[did] not believe that [Marroquin-
Ochoma’s refusal to join the gang] really [was] a political opinion” because
“[i]nadequate evidence ha[d] been presented to indicate that the gangs actually operate
in a political framework, and the problems the respondent had in no way were related
to her expression of any political opinion.” He continued, “Resistance to criminal
activity is not a political opinion in this context.” (emphasis added). The IJ did not
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improperly conclude that no extortion or recruitment could be motivated by political
opinion; the IJ merely concluded that Marroquin-Ochoma had presented insufficient
evidence to show that Mara Salvatrucha attributed an anti-gang political opinion to
her.
Marroquin-Ochoma argues that Mara Salvatrucha is not a “garden variety street
gang” but rather is political in nature and that the mere refusal to join the gang is
therefore sufficient to find an imputed political opinion. At most, evidence that the
gang is politically minded could be considered evidence that the gang members would
be somewhat more likely to attribute political opinions to resisters. But even were we
to conclude that Mara Salvatrucha does in fact operate “in a political framework,” a
“generalized ‘political’ motive underlying the [gang’s] forced recruitment [would be]
inadequate to establish . . . the proposition that” the gang believes resistance to those
recruitment efforts is based on an anti-gang political opinion. Elias-Zacarias, 502 U.S.
at 482 (“Even a person who supports a guerilla movement might resist recruitment for
a variety of reasons—fear of combat, a desire to remain with one’s family and friends,
a desire to earn a better living in civilian life, to mention only a few.”).
Marroquin-Ochoma points to no additional evidence in the record—and our
review finds none—supporting her contention that the threats were on account of an
imputed anti-gang political opinion. Although greater elaboration by the IJ would
have been desirable, the IJ’s brevity in this case is consistent with the dearth of
evidence in the record supporting a contrary conclusion. See Purwantono v. Gonzales,
498 F.3d 822, 825 (8th Cir. 2007) (stating that there was “no evidence” of persecution
on account of political belief where petitioner was beaten unconscious for resisting the
recruiting efforts of a militant group); Dominguez v. Ashcroft, 336 F.3d 678, 680 (8th
Cir. 2003) (“A reasonable fact finder could decide from this record that the guerillas
were simply trying to fill their ranks and were not concerned with [the petitioner’s]
political beliefs.”); see also Ramos-Lopez v. Holder, 563 F.3d 855 (9th Cir. 2009)
(deferring to “the BIA’s determination that resistance to a gang’s recruitment efforts
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alone does not constitute political opinion” (alterations and internal quotation
omitted)); In re S-E-G-, 24 I. & N. Dec. 579, 588–89 (BIA 2008) (concluding that the
respondents “failed to show a political motive in resisting gang recruitment” where
“there [was] no evidence in the record that the respondents were politically active or
made any anti-gang political statements”); In re E-A-G-, 24 I. & N. Dec. 591, 596
(BIA 2007) (“[T]he respondent’s refusal to join MS, without more, does not constitute
a ‘political opinion.’”). Unlike the evidence presented in De Brenner, the record here
contains no evidence that the gang members considered Marroquin-Ochoma “a
political enemy.” See De Brenner, 388 F.3d at 638.
Opposition to a gang such as Mara Salvatrucha may have a political dimension,
but refusal to join the gang is not necessarily politically motivated. Consequently, the
mere refusal to join Mara Salvatrucha, without more, does not compel a finding that
the gang’s threats were on account of an imputed political opinion. Marroquin-
Ochoma’s asylum claim thus fails.
III.
To qualify for withholding of removal, an applicant has the burden of showing
“a clear probability that [her] ‘life or freedom would be threatened in the proposed
country of removal on account of race, religion, nationality, membership in a
particular social group, or political opinion.’” Malonga v. Mukasey, 546 F.3d 546,
551 (8th Cir. 2008) (quoting 8 U.S.C. § 1231(b)(3)) (additional quotation and citations
omitted). Marroquin-Ochoma’s political-opinion arguments for asylum apply equally
to her withholding-of-removal claim. For the reasons discussed above, however, the
record does not compel a finding that the threats were on account of an imputed
political opinion. We therefore also deny this claim.
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IV.
Unlike asylum and withholding of removal, the CAT does not require that
Marroquin-Ochoma show a protected ground to be eligible for relief. Rather, to
qualify for CAT relief, Marroquin-Ochoma must demonstrate that it is more likely
than not that she will be tortured if removed to Guatemala. See 8 C.F.R.
§ 1208.16(c)(2). To provide a basis for relief, the torture must be “by or at the
instigation of or with the consent or acquiescence of a public official or other person
acting in an official capacity.” Id. § 1208.18(a)(1). For purposes of CAT relief,
“[a]cquiescence of a public official requires that the public official, prior to the
activity constituting torture, have awareness of such activity and thereafter breach his
or her legal responsibility to intervene.” Id. § 1208.18(a)(7). “This inquiry centers
upon the willfulness of a government’s non-intervention. A government does not
acquiesce in the torture of its citizens merely because it is aware of torture but
powerless to stop it, but it does cross the line into acquiescence when it shows willful
blindness toward the torture of citizens by third parties.” Mouawad v. Gonzales, 485
F.3d 405, 413 (8th Cir. 2007) (internal quotations and citation omitted).3
3
The IJ, relying on In re S-V-, 22 I. & N. Dec. 1306 (BIA 2000), stated that
CAT relief does not extend to torture by entities that the government is unable to
control. The correctness of this standard is not squarely before us, because the IJ
ultimately concluded that the Guatemalan government was not unable to control the
gang members—thus mooting his own reliance on that standard. We note, however,
that several of our sister circuits have expressly or effectively refuted this BIA
precedent, indicating that evidence of unwillingness may lead to a finding of
acquiescence notwithstanding that the government would be unable to control the
torturer even if it were willing to do so. See, e.g., Silva-Rengifo v. Att’y Gen., 473
F.3d 58, 65 (3d Cir. 2007) (”[A]lthough a government’s ability to control a particular
group may be relevant to an inquiry into governmental acquiescence under the CAT,
that inquiry does not turn on a government’s ‘ability to control’ persons or groups
engaging in torturous activity.”); Tunis v. Gonzales, 447 F.3d 547, 551 (7th Cir. 2006)
(finding the fact that a government is not responsible for individuals whom it is unable
to control “[t]rue, but irrelevant” in light of evidence that the government condoned
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Marroquin-Ochoma has submitted numerous articles and reports showing the
government’s difficulty in controlling the extensive gang violence in Guatemala, as
well as some evidence of general police reluctance to pursue gang members. Based
on this evidence, she argues that the Guatemalan government “condones” the gang’s
activity.4 But the record also includes evidence that the government aggressively
prosecutes gang members. On the whole, the record before us indicates that law
enforcement is weak and inexperienced, not that it acquiesces in gang activity. See
Bartolo-Diego v. Gonzales, 490 F.3d 1024, 1029 (8th Cir. 2007) (“Even though the
government’s failure to investigate and punish other individuals and clandestine
criminal groups who break the law has resulted in human rights abuses, the failure is
due more to a weak and inefficient judicial system than to government acquiescence
or approval.”).
Significantly, the record also includes evidence that the police did respond to
her report by increasing patrols in her neighborhood and that it was Marroquin-
Ochoma herself who declined to formalize her complaint to the public prosecutor. The
IJ concluded that “the police took a reasonable response” to her request for assistance,
and substantial evidence supports the conclusion that the police were not unwilling
to control the gang members. If anything, the record shows that the government
attempted to protect Marroquin-Ochoma and that Marroquin-Ochoma, without
adequate justification, declined to pursue the avenues of law enforcement available
to her. Cf. Khilan v. Holder, 557 F.3d 583, 586 (8th Cir. 2009) (per curiam) (denying
asylum and withholding of removal claims where, inter alia, petitioner refused to aid
the torture).
4
Although Marroquin-Ochoma frames her argument in terms of the “unable or
unwilling” standard relevant for her asylum and withholding claims, she does state
that she is also appealing the denial of CAT relief. Because the “acquiescence”
analysis overlaps significantly with the “unable or unwilling” analysis and the two are
often argued together, we consider Marroquin-Ochoma’s CAT argument sufficiently
presented for appeal.
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the police investigation into petitioner’s persecutors). When paired with such
countervailing facts specific to the petitioner, evidence of general uncontrolled gang
activity does not dictate a conclusion that the government acquiesced in the specific
acts directed toward the petitioner. Menjivar v. Gonzales, 416 F.3d 918, 923 (8th Cir.
2005).
We therefore find that substantial evidence supports the BIA’s determination
that Marroquin-Ochoma failed to establish that the Guatemalan government condoned
or acquiesced in the gang members’ threats as required under the CAT.
* * *
Accordingly, we deny the petition for review.
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