Sandra Menjivar v. John Ashcroft

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-2635
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Sandra Lorena Menjivar, *
*
Petitioner, *
* Petition for Review of an
v. * Order of the Board of
* Immigration Appeals.
Alberto Gonzales, Attorney General *
1
of the United States of America, *
*
Respondent. *
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Submitted: March 17, 2005
Filed: July 29, 2005(Corrected: 09/21/05)
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Before WOLLMAN, JOHN R. GIBSON, and COLLOTON, Circuit Judges.
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COLLOTON, Circuit Judge.
Sandra Lorena Menjivar petitions for review of a decision of the Board of
Immigration Appeals (“BIA”) denying her application for asylum and withholding
of removal and relief under the Convention Against Torture. We deny the petition
for review.
1
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Alberto Gonzales
is automatically substituted for his predecessor, John Ashcroft, as respondent.
I.
Sandra Menjivar is a native and citizen of El Salvador who entered the United
States on January 29, 2002. On February 8, 2002, the government initiated removal
proceedings against her, and on October 28, 2002, Menjivar filed an application for
asylum and related relief. At a hearing before an Immigration Judge (“IJ”) on March
10, 2003, she testified to the circumstances of her departure from El Salvador.
According to Menjivar, she first encountered a man named “Moncho” when she was
fifteen. Moncho was a gang member who walked her home from school, made small
talk, and eventually asked her to be his girlfriend. She declined, indicating that she
was too young to have a boyfriend and that her mother would not approve of a
boyfriend like Moncho. She testified that Moncho was angry that she had rejected
him, and that he continued to spend time around her house.
On December 9, 1999, Menjivar was walking with her grandmother and niece
when an unidentified man suddenly appeared and began shooting at them. Menjivar’s
grandmother was killed, and her niece was left paralyzed by a gunshot wound. The
police were called, but because the nearest police station was one and one-half hours
from Menjivar’s town, they did not arrive until two hours after the shooting. When
the police arrived at the scene, their investigation centered on the report of a
bystander, who claimed to know Moncho. The bystander reported that Moncho was
responsible for the shooting, and that Moncho wanted to kill Menjivar because she
had refused to be his girlfriend. Menjivar testified that the police followed up with
their investigation, but that she continued to feel afraid of Moncho.
Moncho did not reappear in Menjivar’s hometown, and Menjivar heard from
people in her village that Moncho had left the country for Honduras. About a year
and a half after the shooting, a boy at Menjivar’s school approached her and told her
that someone was looking for her. When the boy described the person looking for
Menjivar, the description matched Moncho. After the school year was over, Menjivar
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went to stay with her sister in San Salvador, but she stated that she was still afraid that
Moncho would find her. In January 2002, Menjivar left El Salvador and came to the
United States through Mexico. Menjivar testified that Moncho is a member of a large
gang, and she fears that he will find her if she returns to El Salvador.
The IJ adjudged Menjivar’s testimony regarding the events in El Salvador to
be “generally credible” and found that the evidence established that the shooting in
her hometown had indeed taken place. However, the IJ found that Menjivar’s
harassment by Moncho was essentially a “personal problem,” and not a result of her
membership in a protected social group. He noted that Menjivar had not
communicated any particular beliefs to Moncho in rejecting his advances. The IJ
further found that this was not a case of “police neglect,” and that nothing in the
record suggested that the government ignored Menjivar’s complaints. Based on these
observations, the IJ concluded that Menjivar’s situation was not covered by the
asylum provisions of the Immigration and Nationality Act (“INA”) or by the
Convention Against Torture. The BIA affirmed the IJ’s decision without opinion.
II.
Under the INA, the Attorney General may grant asylum to any alien who
demonstrates that he is a “refugee” as defined by 8 U.S.C. § 1101(a)(42)(A). 8 U.S.C.
§ 1158(b)(1). 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 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.” 8 U.S.C. § 1101(a)(42)(A). Although Congress deleted the former
“substantial evidence” standard of review from the applicable statute in 1996, we
continue to review the administrative findings of fact to determine whether they are
supported by substantial evidence on the record as a whole. Menendez-Donis v.
Ashcroft, 360 F.3d 915, 917-18 (8th Cir. 2004); see also Dia v. Ashcroft, 353 F.3d
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228, 248 & n.18 (3d Cir. 2003) (en banc). This means that findings of fact made by
an IJ or the BIA are “conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); Menendez-Donis,
360 F.3d at 917-18; see INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992). The
Attorney General’s discretionary decision whether to grant asylum “shall be
conclusive unless manifestly contrary to the law and an abuse of discretion.” 8
U.S.C. § 1252(b)(4)(D).
Menjivar’s principal argument on appeal is that the IJ erred in determining that
she is not a member of a protected social group. We find it unnecessary to reach this
question, because we believe the IJ reasonably concluded that Menjivar failed to
establish “persecution” within the meaning of the INA.
The BIA has adopted, and we have approved as reasonable, a definition of
“persecution” that requires a harm to be “inflicted either by the government of [a
country] or by persons or an organization that the government was unable or
unwilling to control.” Valioukevitch v. INS, 251 F.3d 747, 749 (8th Cir. 2001); see
Miranda v. INS, 139 F.3d 624, 627 & n.2 (8th Cir. 1998); In re Acosta, 19 I. & N.
Dec. 211, 222 (BIA 1985); see also Matter of Pierre, 15 I. & N. Dec. 461, 462 (BIA
1975) (stating the “unwilling or unable to control” standard for non-governmental
persecution). We also accept as reasonable the BIA’s view that an applicant seeking
to establish persecution by a government based on violent conduct of a private actor
must show more than “difficulty . . . controlling” private behavior. In re McMullen,
17 I. & N. Dec. 542, 546 (BIA 1980). Rather, the applicant must show that the
government “condoned it or at least demonstrated a complete helplessness to protect
the victims.” Galina v. INS, 213 F.3d 955, 958 (7th Cir. 2000); see also Roman v.
INS, 233 F.3d 1027, 1034 (7th Cir. 2000). We have said that an asylum claim based
on actions by non-governmental parties fails where none of the incidents of abuse
“occurred with the imprimatur” of government officials. Valioukevitch, 251 F.3d at
749. And the fact that police take no action on a particular report does not necessarily
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mean that the government is unwilling or unable to control criminal activity, because
there may be a reasonable basis for inaction. Hasalla v. Ashcroft, 367 F.3d 799, 804
(8th Cir. 2004); but cf. In re O-Z- and I-Z-, 22 I. & N. Dec. 23, 26 (BIA 1998)
(upholding a grant of asylum where “the respondent reported at least three . . .
incidents to the police, who took no action beyond writing a report”). Whether a
government is “unable or unwilling to control” private actors under these refined
definitions of persecution is a factual question that must be resolved based on the
record in each case.
After considering the evidence of Moncho’s criminal activity and the
government’s response thereto, the IJ made specific findings that “[w]e are not
dealing with a situation here where the crime was ignored,” and that “[t]his does not
appear to be a case where the government was ignoring the claims or pleas of a target
of unwanted attention or unwanted criminal contact.” The IJ also concluded that
there is “nothing in the record that would indicate that the police had been previously
contacted about the unwanted advances . . . and then refused to provide protection.”
The IJ characterized the situation as a “personal problem” that was not covered by the
asylum provisions of the INA.
We conclude that substantial evidence supports the IJ’s conclusion that
Moncho’s actions should not be considered “persecution” attributable to the
government of El Salvador.2 The police responded to the tragic shooting of
2
At oral argument, Menjivar suggested that the administrative decision should
not be sustained on this basis, because it was not relied upon by the IJ in his decision.
While it is true that a reviewing court “may not uphold an agency decision based on
reasons not articulated by the agency itself,” Mayo v. Schiltgen, 921 F.2d 177, 179
(8th Cir. 1990), we believe based on the IJ’s specific findings detailed above that “the
agency’s path may reasonably be discerned.” Chanmouny v. Ashcroft, 376 F.3d 810,
812 (8th Cir. 2004) (internal quotation omitted). It is evident to us that one reason
for the decision to deny asylum was the IJ’s conclusion that Moncho’s actions did not
constitute persecution by the government of El Salvador.
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Menjivar’s relatives within two hours. In light of Menjivar’s testimony that the
nearest police station was one and one-half hours away and that it took a half-hour
to find a telephone to summon the police, it is reasonable to conclude that law
enforcement officials responded to the incident as quickly as possible. Menjivar
argues that the police made inadequate or ineffective efforts to control Moncho’s
lawlessness, but Menjivar also testified that Moncho was angry at her precisely
because “the police [were] looking for [him].” This testimony supports an inference
not only that the police were pursuing Moncho, but also that their pursuit was
effective enough that it provoked his anger. Menjivar testified, moreover, that she
did not report Moncho’s subsequent reappearance to the police, so the government
had no opportunity to respond to this development.
Menjivar also submitted several newspaper articles describing the problem of
gangs in El Salvador, in support of her contention that the police were “unable or
unwilling” to control Moncho. These exhibits state that the gangs “often have [the
police] outmaneuvered and outgunned,” and that “critics” believe that the police force
“has failed to put together a comprehensive anti-crime strategy and suffers from
institutional weaknesses, such as inadequate supervision.” To whatever extent these
materials show that there is a general problem of gang violence in El Salvador, we do
not believe they can override the evidence in this case that police conducted a
thorough investigation of Moncho’s criminal acts, and apparently forced him into
hiding as a result.
Substantial evidence on the record as a whole supports the conclusion that the
government responded to the report of Moncho’s criminal activity, and acted upon
the information that Menjivar and other witnesses provided. We deem the news
articles regarding gang activity too general to dictate a conclusion that the Moncho’s
specific acts directed toward Menjivar were persecution by the government. This
case is unlike Mashiri v. Ashcroft, 383 F.3d 1112 (9th Cir. 2004), cited by Menjivar,
in which police “conducted very limited investigation, if any,” and told the aliens that
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they “better try to take care of [themselves].” Id. at 1121 n.5 (alteration in original).
Therefore, we do not believe that a reasonable factfinder was compelled to conclude
that the government of El Salvador was “unable or unwilling” to control Moncho,
such that his criminal activity must be attributed to the government, and the decision
to deny asylum was thus not contrary to law or an abuse of discretion. See 8 U.S.C.
§ 1252(b)(4)(D). It follows from our conclusion on the asylum claim that substantial
evidence also supports the IJ’s decision denying withholding of removal. See Ismail
v. Ashcroft, 396 F.3d 970, 975 (8th Cir. 2005).
We also conclude that the IJ’s decision to deny Menjivar’s claim for relief
under the Convention Against Torture was supported by substantial evidence. See
Mompongo v. Gonzales, 406 F.3d 512, 514 (8th Cir. 2005) (standard of review).
Under the Convention, Menjivar must demonstrate that it is more likely than not that
she would be subjected to torture if returned to El Salvador, 8 C.F.R. § 208.16(c)(2),
and that such torture would be inflicted “with the consent or acquiescence of a public
official.” 8 C.F.R. § 208.18(a)(1). “Acquiescence” at least requires prior awareness
of the torture and a breach of a legal responsibility to intervene. 8 C.F.R. §
208.18(a)(7); Lopez-Soto v. Ashcroft, 383 F.3d 228, 240 (4th Cir. 2004).
The IJ found that the police did not ignore threats against Menjivar of which
they had prior knowledge, and that the police did not “somehow acquiesce” in the
commission of crimes against her. For the reasons discussed above, the evidence
does not compel a finding that the El Salvadoran police have acquiesced or would
acquiesce in Moncho’s criminal activities. The newspaper articles at most
demonstrate that the government has a problem controlling gang activity of which it
is aware, but this is insufficient to compel a finding of willful blindness toward the
torture of citizens by third parties. See Lopez-Soto, 383 F.3d at 240-41. We therefore
find that substantial evidence supports the BIA’s determination that Menjivar was not
eligible for relief under the Convention Against Torture.
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For the foregoing reasons, the petition for review is denied. Petitioner’s motion
to suspend ruling on appeal is also denied.
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