Vila-Castro v. Garland

77 F.4th 10

• Court: Court of Appeals for the First Circuit
• Decided: August 8, 2023
• Docket: 21-2011
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 21-2011

KARIN VILA-CASTRO; ADRIANA ANDREA RAMIREZ-VILA; DANIEL ANGEL RAMIREZ-SALAS,

Petitioners,

v.

MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before

Barron, Chief Judge, Howard and Montecalvo, Circuit Judges.

Kimberly A. Williams, with whom Jeffrey B. Rubin, Todd C. Pomerleau, and Rubin Pomerleau PC were on brief, for petitioners. Jesse D. Lorenz, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, with whom Brian M. Boynton, Principal Deputy Assistant Attorney General, and David J. Schor, Senior Litigation Counsel, were on brief, for respondent.

August 8, 2023 BARRON, Chief Judge. We have before us a petition for

review of an order of the Board of Immigration Appeals ("BIA") by

several Peruvian nationals who have been ordered removed from this

country. The petitioners challenge the denial of their claims for

asylum, withholding of removal, and protection pursuant to the

regulations implementing the Convention Against Torture ("CAT").

They base the claims on their contention that they fear being

seriously physically harmed or killed in Peru due to their previous

involvement with the American Popular Revolutionary Alliance

("APRA") political party in that country. After careful

consideration, we deny the petition.

I.

The petitioners are Karin Vila-Castro, her husband

Daniel Angel Ramirez-Salas, and their daughter Adriana Andrea

Ramirez-Vila ("Adriana"), all of whom are natives and citizens of

Peru. Vila-Castro and Ramirez-Salas also have another daughter

-- Neosma Ramirez-Vila ("Neosma") -- who, although not herself a

petitioner, was named in the proceedings before the BIA as a

derivative of her parents' asylum applications. Vila-Castro and

Adriana entered the United States on May 18, 2014. Ramirez-Salas

entered the United States with Neosma on December 20, 2015.

Each of the petitioners was charged with removability

under 8 U.S.C. § 1182(a)(6)(A)(i) as a noncitizen unlawfully

present in the United States. The petitioners conceded

- 2 - removability in proceedings before the Immigration Judge ("IJ").

Each then sought to avoid removal by seeking asylum, withholding

of removal, and CAT protection.

In advancing the claims, the petitioners rely on

testimony in the removal proceedings before the IJ that they were

involved with the APRA political party before they left Peru; many

of Ramirez-Salas's family members were also involved with the

party; Ramirez-Salas's uncle and uncle's brother-in-law were

elected mayors as members of the party; and Vila-Castro worked

directly on the campaigns for both of those individuals. They

further rely on testimony at their removal proceedings that

concerns three specific incidents that occurred in Peru before

they left that country and came to the United States.

The first incident is a motorcycle accident that

occurred in late 2013 and in which Neosma was injured. Vila-Castro

and Ramirez-Salas testified that they believe that members of an

opposing political party intentionally caused the accident and

targeted Neosma due to her family's support of the APRA party.

The second incident is Vila-Castro's receipt at the

family's home in April 2014 of a threatening anonymous letter.

Vila-Castro and Ramirez-Salas testified that the letter was

addressed to Vila-Castro specifically and that it threatened

Vila-Castro and her family with death if she continued supporting

the APRA party. Vila-Castro and Ramirez-Salas also testified that

- 3 - Vila-Castro reported the letter to the police that same day and

that the police responded that they could not investigate the

letter because it was anonymous and Vila-Castro was unable to

identify who had sent it.

Vila-Castro and Ramirez-Salas further testified that

nine days after they reported the anonymous letter to the police,

they filed a complaint with the Interior Minister of the government

of Peru to initiate a police investigation. Vila-Castro testified

that the Interior Minister subsequently gave her a document that

ordered the local police to investigate the letter and instructed

her to take the document to the police. She testified that she

decided not to do so, however, because she believed the police

were ineffective and corrupt and for that reason she was by that

point "no longer interested" in pursuing a police investigation.

Vila-Castro and Ramirez-Salas testified that the third

incident occurred "on election day" in 2014, when a group of APRA

supporters (including Vila-Castro) was attacked by supporters of

opposing political parties. Vila-Castro testified that she and

the other APRA supporters were all aboard a large boat and that a

group of supporters of opposing parties threw rocks and sticks at

them to prevent them from disembarking.

Vila-Castro and Ramirez-Salas each testified that,

because of these incidents, they came to believe that if they

remained in Peru, they or their family members would be killed.

- 4 - They each further testified that, because of that fear, Vila-Castro

left Peru for the United States with Adriana in May 2014 and that

Ramirez-Salas and Neosma remained in hiding in Ramirez-Salas's

mother's house until December 2015, at which point they also left

for the United States. Vila-Castro and Ramirez-Salas testified

that they continue to fear that if they return to Peru they or

their family members would be seriously harmed or killed.

In an order entered on February 7, 2019, the IJ treated

the petitioners' testimony as credible but nonetheless ordered the

petitioners removed. The BIA affirmed the IJ's ruling. This

petition was then timely filed.

II.

"We usually review decisions of the BIA, not the IJ.

But where, as here, 'the BIA both adopts the findings of the IJ

and discusses some of the bases for the IJ's decision, we have

authority to review the decisions of both the IJ and the BIA.'"

Ordonez-Quino v. Holder, 760 F.3d 80, 87 (1st Cir. 2014) (citation

omitted) (quoting Romilus v. Ashcroft, 385 F.3d 1, 5 (1st Cir.

2004)). "We review the BIA's and IJ's interpretations of law de

novo, 'subject to appropriate principles of administrative

deference.'" Id. (quoting Larios v. Holder, 608 F.3d 105, 107

(1st Cir. 2010)). Meanwhile, "[w]e review their findings of fact

. . . 'under the familiar and deferential substantial evidence

standard.'" Id. (quoting Ivanov v. Holder, 736 F.3d 5, 11 (1st

- 5 - Cir. 2013)). Under that standard, we may reject factual findings

only "if the record would compel a reasonable fact-finder to reach

a contrary conclusion." Id. (citing Vasili v. Holder, 732 F.3d

83, 89 (1st Cir. 2013)); see also 8 U.S.C. § 1252(b)(4)(B).

III.

We begin with the asylum claim. For the petitioners to

establish that they are eligible for asylum, they must show that

they are "unable or unwilling to return to" Peru "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); id.

§ 1158(b)(1). A showing of past persecution gives rise to a

presumption of a well-founded fear of future persecution. See

Aguilar-Escoto v. Garland, 59 F.4th 510, 518 (1st Cir. 2023).

The petitioners predicate their showing that they have

a well-founded fear of persecution on their having been subject to

past persecution. Because "[p]ersecution always implies some

connection to governmental action or inaction," Orelien v.

Gonzales, 467 F.3d 67, 72 (1st Cir. 2006), petitioners must show

that the underlying past mistreatment that they allege occurred

"is the 'direct result of government action, government-supported

action, or government's unwillingness or inability to control

private conduct,'" id. (quoting Nikijuluw v. Gonzales, 427 F.3d

115, 121 (1st Cir. 2005)).

- 6 - The BIA upheld the IJ's ruling that the petitioners had

failed to make the requisite showing regarding government

involvement. That determination is one "of fact that we review

under the highly deferential substantial evidence standard."

Ortiz-Araniba v. Keisler, 505 F.3d 39, 42 (1st Cir. 2007) (citing

Attia v. Gonzales, 477 F.3d 21, 23 (1st Cir. 2007)). Thus, we

must uphold the BIA's ruling on this score "unless any reasonable

adjudicator would be compelled to conclude to the contrary." Id.

(quoting 8 U.S.C. § 1252(b)(4)(B)).

In contending that any reasonable adjudicator would be

so compelled, the petitioners rely chiefly on the evidence in the

record of their efforts to have the police in Peru investigate the

anonymous threatening letter that Vila-Castro received. They

argue in part that this evidence shows that the police were

unwilling to protect them, even if the police were not unable to

do so. The petitioners emphasize in that regard that the

undisputed record shows that after Vila-Castro reported the

anonymous letter to the police that conveyed a death threat, the

police failed to take steps to conduct a "proper investigation

. . . to find who were [sic] making such threats and put an end to

it." But the petitioners also argue that this same evidence also

shows that the Peruvian government is unable to protect them (even

though the petitioners need only make one of these two showings).

They explain in this regard that the police's "failure to locate

- 7 - the responsible parties" because of the unwillingness of the police

to investigate the letter necessarily means that the Peruvian

government is also unable to take any measures to protect the

petitioners.

The undisputed record shows, however, that the Interior

Minister of the government of Peru gave Vila-Castro a document

that ordered the police in Peru to investigate the threatening

letter and instructed Vila-Castro to deliver the document to the

police. The record then further shows -- again, without dispute

-- that Vila-Castro chose not to do so because the police "were

taking too long" and so she "made a decision just to leave [her]

country." Thus, we see no ground for concluding that the record

compels the conclusion that the Peruvian government was either

unwilling or unable to provide protection to the petitioners. See

Barsoum v. Holder, 617 F.3d 73, 80 (1st Cir. 2010) (holding that

the record did not compel such a conclusion when it showed that a

petitioner "sought assistance from the police only once," then

"never again sought their help," and otherwise had "not established

that the police were actually unable or unwilling to protect him").

The petitioners do appear to be arguing that it would have been

futile to have pressed for further investigation by the police

because the police in Peru are "corrupt" and only "resolve things"

with "money." But we have previously made clear that a "failure

to report mistreatment" due to "petitioner's subjective belief

- 8 - that authorities are corrupt . . . is not, without more,

sufficient" to show that seeking police assistance would have been

futile. Morales-Morales v. Sessions, 857 F.3d 130, 135 (1st Cir.

2017). And indeed, here, the respondent put forward evidence that,

although corruption is a pervasive problem in Peru, the Peruvian

government does take some action to investigate and prosecute

corruption, and the evidence that the petitioners put forward does

not compel a contrary conclusion.

We also cannot agree with the petitioners that our

decision in Rosales Justo v. Sessions, 895 F.3d 154 (1st Cir.

2018), supports their position. In that case, we vacated a BIA

order that overturned an IJ's finding that the Mexican government

was unable to protect the petitioner. Id. at 156–57. We did so

on the ground that the BIA, by pointing only to evidence that the

Mexican government had investigated the murder of the petitioner's

son, "missed the distinction drawn by the IJ between the Mexican

government's willingness to investigate [the] murder and its

ability to protect [the petitioner] in the future." Id. at 163

(emphasis added).

Of course, here, we are dealing with a case in which the

BIA affirmed the IJ's finding that the petitioner had failed to

show that the foreign government was unwilling or unable to provide

protection. And, in any event, there is no basis for concluding

that the BIA or IJ made a similar error here to the one that we

- 9 - identified in Rosales-Justo. Indeed, the petitioners made no

argument to the BIA that the IJ's ruling was in error because it

failed to distinguish between the "unable" and "unwilling"

inquiries. See 8 U.S.C. § 1252(d)(1) (requiring exhaustion);

Kinisu v. Holder, 721 F.3d 29, 34 (1st Cir. 2013) (holding that

court may not consider argument that petitioner failed to raise

before the BIA).

IV.

The petitioners separately challenge the BIA's order

denying their claim for withholding of removal. But that claim

not only requires the petitioners to satisfy the "unwilling or

unable" standard but also to do so under "the even-more-demanding

clear-probability test." Morales-Morales, 857 F.3d at 136. Thus,

this challenge fails for the same reasons that their challenge to

the denial of their asylum claim does. Id. (holding that because

petitioner's asylum-based challenge failed on ground that

petitioner could not show that government was unwilling or unable

to protect him, petitioner's withholding-of-removal-based

challenge also necessarily failed).

Finally, we must address the petitioners' challenge to

the denial of their CAT claim. We have made clear that, in

addressing a CAT claim, "[o]ur charge is not to look through the

record searching for reasoning that the IJ might have offered, but

- 10 - did not," Hernandez-Martinez v. Garland, 59 F.4th 33, 41 (1st Cir.

2023), but rather to rely "only on reasoning provided by the

agency," id. (quoting Mihaylov v. Ashcroft, 379 F.3d 15, 21 (1st

Cir. 2004)). But here, too, the IJ rejected the petitioners' CAT

claim in part on the ground that the petitioners had not shown the

requisite degree of connection between the alleged harm at the

hands of private actors and the Peruvian government, see Romilus,

385 F.3d at 8 ("[A]n applicant [for CAT protection] must

demonstrate that any torture he will suffer would be at the hands

of the government or with the consent or acquiescence of the

government."), and the BIA then "affirm[ed]" that ruling.1 Thus,

the petitioners' challenge to the denial of their applications for

CAT protection "likewise fails for substantially the same reason

1 We do note that, in affirming the IJ's ruling, the BIA mistakenly stated that the IJ "determined that [the petitioners] ha[ve] not established through record evidence that it is more likely than not that [they] would be tortured by, or at the instigation of, or with the consent or acquiescence . . . of a public official in China." (Emphasis added). However, the petitioners make no argument that this error merits remanding the case, and instead only argue that the BIA's "adopt[ing] the IJ's findings and only provid[ing] a cursory discussion of the IJ's reasoning" requires that we "review both the decision of the IJ and the [BIA]." Moreover, the IJ concluded that "[a]lthough country conditions evidence indicates the prevalence of violence against women, children and LGBTI persons; trafficking in persons; unlawful killings, and corruption and impunity that undermined the rule of law, the [petitioners] have not adduced sufficient evidence to establish that, if they return to their country, it is more likely than not that members of the government will engage, instigate, consent, or acquiesce, in their torture." (Emphasis added). We therefore affirm on that basis.

- 11 - as do [their] challenges to the denials of [their] request[s] for

asylum and withholding of removal." Morales-Morales, 857 F.3d at

136 (citing Romilus, 385 F.3d at 8).

VI.

For these reasons, we deny the petition.

So Ordered.

- 12 -