Menjivar v. Gonzales

• Decision Date: 29 July 2005
• Docket Number: No. 04-2635.,04-2635.
• Parties: Sandra Lorena MENJIVAR, Petitioner, v. Alberto GONZALES, Attorney General of the United States of America,<SMALL><SUP>1</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

416 F.3d 918

Sandra Lorena MENJIVAR, Petitioner, v. Alberto GONZALES, Attorney General of the United States of America,¹ Respondent.

No. 04-2635.

United States Court of Appeals, Eighth Circuit.

Submitted: March 17, 2005.

Filed: July 29, 2005.

Bruce D. Nestor, argued, Minneapolis, MN, for petitioner.

Gjon Juncaj, argued, U.S. Dept. of Justice, Washington, D.C. (Jennifer J. Keeney, on the brief, U.S. Dept. of Justice, Washington, D.C.), for respondent.

Before WOLLMAN, JOHN R. GIBSON, and COLLOTON, Circuit Judges.

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.

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 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 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, 112 S.Ct. 812, 117 L.Ed.2d 38 (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, 1985 WL 56042 (BIA 1985); see also Matter of Pierre, 15 I. & N. Dec. 461, 462, 1975 WL 31551 (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, 1980 WL 121935 (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 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, 1998 WL 177674 (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 Menjivar's relatives within two hours. In light of Menjivar's...