Castillo-Diaz v. Holder
| Decision Date | 30 March 2009 |
| Docket Number | No. 08-1570.,08-1570. |
| Citation | 562 F.3d 23 |
| Parties | Andrea Del Carmen CASTILLO-DIAZ, Petitioner, v. Eric H. HOLDER, Jr.,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent. |
| Court | U.S. Court of Appeals — First Circuit |
Jose A. Espinosa, for petitioner.
Gregory G. Katsas, Assistant Attorney General, Civil Division, Francis Fraser, Senior Litigation Counsel and Kate D. Balaban, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, for respondent.
Before BOUDIN, JOHN R. GIBSON,** and HOWARD, Circuit Judges.
Petitioner Andrea Del Carmen Castillo-Diaz, a native and citizen of El Salvador, seeks review of a Board of Immigration Appeals ("BIA") final order summarily affirming an Immigration Judge's ("IJ") denial of her applications for asylum and withholding of removal. Finding no legal error in the IJ's reasoning, and discerning substantial evidence in the record supporting the IJ's determination, we deny the petition.
Castillo-Diaz entered the United States without inspection on or about July 6 2003, and shortly thereafter the Department of Homeland Security ("DHS") issued a notice to appear charging her with removability under 8 U.S.C. § 1182(a)(6)(A)(i) as an alien present in the United States without being admitted or paroled. Castillo-Diaz conceded the charge, and in June 2004 filed applications for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"), alleging that she had been the victim of "unknown men who kidnapped and raped" her, and that they would attack her again if she returned to El Salvador.
At an evidentiary hearing before an IJ two years later, Castillo-Diaz provided the factual basis for her application. According to her testimony, in March 2003, while she was walking near her home, two unidentified men grabbed her, pulled her inside a van, and raped her. She was fifteen years old. Scared and traumatized by the attack, Castillo-Diaz did not report the incident. Although she admitted to having no reason to believe that her attackers could identify her, she nonetheless feared that they would find and retaliate against her or her family if she involved the police. Two months later, Castillo-Diaz learned that she was pregnant as a result of the rape, and her family made arrangements for her to join her mother in the United States. As noted above, she entered the United States and was charged with removability shortly thereafter. In November 2003, while still living in the United States and with the DHS's charge of removability still pending, she gave birth to a child.
In an oral decision, the IJ concluded that she had not demonstrated her eligibility for asylum.1 Specifically, the IJ found that Castillo-Diaz had not established her membership in a cognizable "particular social group" within the meaning of 8 U.S.C. § 1101(a)(42)(A), explaining that neither "young women," "women generally," nor "anyone who is vulnerable" is a recognized group for asylum purposes. On the contrary, the IJ characterized Castillo-Diaz as "the victim of a crime," and noted that "fear of crime, or fear of general violence ... has never been accepted as a ground for asylum or withholding of removal." The IJ further found that Castillo-Diaz had failed to carry her burden to establish that the government of El Salvador would be unable or unwilling to control the individuals who raped her, noting that although her reluctance to report the crime was understandable given the "tremendous risk" she would have incurred in testifying against "dangerous violent people," her decision not to involve the police nonetheless "made it impossible for the government to attempt to do anything" to protect her. Additionally, the IJ found that even if Castillo-Diaz had shown a threat of persecution, she had not shown that "the threat of persecution is country wide and not just confined to a small area," noting that while rape occurs country wide in El Salvador, Castillo-Diaz had not shown that her attackers would conceivably "search for her in any wider area than just the town in which she lived." Finally, the IJ found that Castillo-Diaz had not provided adequate evidentiary support for her claim for protection under the CAT, noting that the men who raped her had not been shown to have a connection to the government of El Salvador.2 The IJ therefore found Castillo-Diaz removable as charged, denied her applications for asylum, withholding of removal, and CAT relief, and ordered her removed to El Salvador.
Castillo-Diaz appealed to the BIA, which affirmed the IJ without opinion.3 This petition followed. We have jurisdiction pursuant to § 242(a)(1) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1252(a)(1).
Where, as here, the BIA summarily affirms the IJ's decision under the "affirmance without opinion" procedure outlined in 8 C.F.R. § 1003.1(e)(4), we review the IJ's decision directly as if it were the decision of the BIA. Aguilar v. Gonzales, 475 F.3d 415, 417 (1st Cir.2007).
We review the IJ's findings of fact under the deferential "substantial evidence" standard, reversing only if a "reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B); Khan v. Mukasey, 549 F.3d 573, 576 (1st Cir.2008); Romilus v. Ashcroft, 385 F.3d 1, 5 (1st Cir.2004). Under this standard, the decision will be upheld "`if supported by reasonable, substantial, and probative evidence on the record considered as a whole.'" Carcamo-Recinos v. Ashcroft, 389 F.3d 253, 256 (1st Cir.2004) (quoting Khalil v. Ashcroft, 337 F.3d 50, 55 (1st Cir.2003)). In contrast, we review questions of law de novo. Pan v. Gonzales, 445 F.3d 60, 61 (1st Cir.2006).
Section 208(a) of the INA authorizes the Attorney General to exercise his discretion to grant asylum to eligible refugee aliens. 8 U.S.C. § 1159(a). The alien bears the burden of demonstrating her eligibility for asylum. 8 U.S.C. § 1158(b)(1); 8 C.F.R. § 1208.13(a); Romilus, 385 F.3d at 6. There are two ways an alien can establish that eligibility. First, she can demonstrate that while in the relevant foreign country she suffered persecution in the past on the basis of her race, religion, nationality, membership in a particular social group, or political opinion, and that she consequently has a well-founded fear of persecution such that she is unable or unwilling to return to that country. 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 1208.13(b). An alien who demonstrates past persecution is presumed, subject to rebuttal, to have a well-founded fear of future persecution. 8 C.F.R. § 1208.13(b).
Second, an alien can demonstrate directly her well-founded fear of future persecution through an offer of "specific proof." Romilus, 385 F.3d at 6; see also 8 C.F.R. § 1208.13(b). Doing so requires proving that her fear is both subjectively genuine and objectively reasonable. Sou v. Gonzales, 450 F.3d 1, 7 (1st Cir.2006). Demonstrating objectively reasonable fear requires showing that "`a reasonable person in [her] circumstances would fear persecution on account of a statutorily protected ground.'" Romilus, 385 F.3d at 7 (quoting Khalil, 337 F.3d at 56). The alien's "testimony may be sufficient to demonstrate the objective reasonableness of [her] fear, `but [the testimony] must constitute credible and specific evidence of a reasonable fear of persecution.'" Carcamo-Recinos, 389 F.3d at 257 (quoting Afful v. Ashcroft, 380 F.3d 1, 3 (1st Cir. 2004)).
The burden is also on the alien to show eligibility for withholding of removal. 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 1208.16(b). Specifically, the alien must "show a clear probability of future persecution" based on one of the five statutorily protected grounds. Palma-Mazariegos v. Gonzales, 428 F.3d 30, 37 (1st Cir.2005) (citing Aguilar-Solis v. INS, 168 F.3d 565, 569 n. 3 (1st Cir.1999)); Khan, 549 F.3d at 576. Because the "clear probability" showing for withholding of removal places a "`more stringent burden of proof on an alien than does a counterpart claim for asylum,'" when an alien's "claim for asylum fails, so too does [her] counterpart claim for withholding of removal." Id. (quoting Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120, 123 (1st Cir.2005)).
Castillo-Diaz argues that, contrary to the IJ's finding, she is in fact a member of two cognizable "particular social group[s]" under 8 U.S.C. § 1101(a)(42)(A), 8 C.F.R. § 1208.13(b): "rape victims who have born[e] a child as a result of the rape," and "child rape victims who are severely traumatized." The petitioner cites no authority suggesting that her proposed defined groups constitute particular social groups. Even assuming arguendo that these proposed groups fit the statutory definition of "particular social group," Castillo-Diaz still has not demonstrated her eligibility for asylum, as the record contains substantial evidence supporting each of the IJ's alternative bases for denying her petition for asylum.
To prove past persecution, Castillo-Diaz is required to show, inter alia, that the government of El Salvador was involved in her attack "(i) by evidence that government actors committed or instigated the acts complained of; (ii) by evidence that government actors condoned the acts; or (iii) by evidence of an inability on the part of the government to prevent the acts." Harutyunyan v. Gonzales, 421 F.3d 64, 68 (1st Cir.2005); see also Nikijuluw v. Gonzales, 427 F.3d 115, 121 (1st Cir.2005) (). Castillo-Diaz makes no argument at all that the government committed, instigated, or condoned the attack; on the contrary, she acknowledges that her attackers were...
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