Sudmy Trinidad-Alvarado v. William P. Barr ( 2020 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 20-1462
___________________________
Sudmy Trinidad-Alvarado,
Petitioner
v.
William P. Barr, United States Attorney General,
Respondent
____________
Appeal from the Board of Immigration Appeals
____________
Submitted: November 19, 2020
Filed: December 7, 2020
[Unpublished]
____________
Before BENTON, ERICKSON and GRASZ, Circuit Judges.
____________
PER CURIAM.
An Immigration Judge denied asylum, withholding of removal, and relief
under the Convention Against Torture to Sudmy Yanath Trinidad-Alvarado. The
Board of Immigration Appeals affirmed the IJ, dismissing the appeal. Having
jurisdiction under 8 U.S.C. § 1252(b)(4), this court denies the petition for review.
“We review administrative findings of fact, including credibility
determinations, under the substantial-evidence standard.” Garcia v. Barr, 954 F.3d
1095, 1097 (8th Cir. 2020). “Under the substantial-evidence standard, we will
affirm findings of fact unless ‘any reasonable adjudicator would be compelled to
conclude to the contrary.’” Id., citing 8 U.S.C. § 1252(b)(4)(B). “We will uphold
the denial of asylum and withholding of removal if the decision is supported by
substantial evidence in the record.” Prieto-Pineda v. Barr, 960 F.3d 516, 519 (8th
Cir. 2020). “Only the BIA order is subject to our review, including the IJ’s findings
and reasoning to the extent they were expressly adopted by the BIA.” Njong v.
Whitaker, 911 F.3d 919, 922 (8th Cir. 2018).
Trinidad-Alvarado argues she is eligible for asylum, withholding of removal,
or CAT relief because members of M-18 Gang killed her father and may target her.
Trinidad-Alvarado’s father died in 2010 while working security at a market in
Guatemala. Two M-18 members were arrested. She did not return to the market for
six years. When she did return, two M-18 members followed her and called out for
her to “stop.” She ran to a bus, called in a police report, left town, but did not follow
up on the report. She had no further contact with members of M-18 and left
Guatemala a month later. She fears M-18 will target her because they killed her
father.
“Asylum may be granted, in relevant part, upon a showing of a well-founded
fear of persecution on account of . . . membership in a particular social group, or
political opinion, in the alien’s country of origin.” Prieto-Pineda, 960 F.3d at 520
(quotation omitted). “[I]n order to meet the requirements for persecution, the harm
must be inflicted either by the government of a country or by persons or an
organization that the government was unable or unwilling to control.” Id. This court
has previously rejected asylum claims founded on speculative links between M-18
and family members. Id.
Prieto-Pineda controls this case. On appeal, Trinidad-Alvarado does not
attack the IJ’s finding on past persecution, only the BIA’s standard of review.
-2-
Trinidad-Alvarado argues the BIA erred by failing to review the IJ’s past persecution
conclusion de novo. While the BIA’s order is not a model of clarity, there is no basis
to conclude the BIA did not apply de novo review to the past persecution conclusion
of the IJ. See generally Lemus-Arita v. Sessions, 854 F.3d 476, 480-81 (8th Cir.
2017) (rejecting an argument the BIA applied the clear error standard even though a
“strained interpretation” might indicate otherwise).
Thus, to qualify for asylum she must prove her fear of persecution is well-
founded and connected to her membership in a particular social group. The IJ found
her fear too speculative and disconnected from a cognizable social group. Trinidad-
Alvarado’s claim that M-18 members told her to “stop” does not establish M-18
targeted her because of her family. Malonga v. Holder, 621 F.3d 757, 765 (8th Cir.
2010) (“[E]vidence of isolated violence does not compel a finding of persecution.”).
The IJ did not err in rejecting Trinidad-Alvarado’s claim.
“[A] petitioner must show more than government difficulty controlling private
behavior to meet the ‘unwilling or unable’ standard.” Prieto-Pineda, 960 F.3d at
521. “[E]vidence that the police have difficulty controlling gangs . . . generally . . .
does not demonstrate the government is unwilling or unable to protect [an
applicant].” Id. “A government's ability to control the persecutors is a question of
fact, and we must uphold the agency's finding regarding this question of fact ‘unless
any reasonable adjudicator would be compelled to conclude to the contrary.’”
Galloso v. Barr, 954 F.3d 1189, 1192 (8th Cir. 2020), citing 8 U.S.C. § 1252(b)(4).
Trinidad-Alvarado could not show the government was unwilling or unable
to control M-18. Although Guatemala may partially fail to control M-18, Trinidad-
Alvarado must show the government acquiesced in M-18’s persecution of her family
to qualify for asylum. See Galloso, 954 F.3d at 1193. No facts in the record support
that claim.
A noncitizen is entitled to CAT relief if they establish “it is more likely than
not that he or she would be tortured if removed to the proposed country of removal.”
-3-
8 C.F.R. § 1208.16(c)(2). “When a petitioner’s asylum and withholding claims are
denied, a separate CAT analysis is required only where the applicant presents
evidence that he may be tortured for reasons unrelated to his claims for asylum and
withholding of removal.” Prieto-Pineda, 960 F.3d at 522 (quotation omitted).
Trinidad-Alvarado did not show it was more likely than not that she would be
tortured. Trinidad-Alvarado’s claim that M-18 may recognize and target her does
not establish she is more likely than not to be killed if she returns to Guatemala. That
inference is too speculative. The IJ properly denied Trinidad-Alvarado CAT relief.
*******
The petition for review is denied.
______________________________
-4-