Vilma Menendez-Donis v. John Ashcroft, Attorney General of the United States

360 F.3d 915

• Court: Court of Appeals for the Eighth Circuit
• Decided: April 26, 2004
• Docket: 02-3692
• Status: Published

Opinions

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Vilma Menendez-Donis petitions for review of an order of the Board of Immigration Appeals (BIA) affirming an immigration judge’s (IJ’s) denial of asylum. We affirm the BIA’s decision.

I.

Ms. Menendez-Donis is a native of Guatemala. She fled to the United States after being beaten and gang raped in her home, entering the country without inspection. She conceded that she was deporta-ble but sought asylum on the ground of political persecution. See 8 U.S.C. §§ 1101(a)(42)(A), 1158.

Four years before Ms. Menendez-Donis was attacked, her husband, a cattle farmer, was approached by rebel guerillas and asked for financial support. He refused and was later found shot to death. Ms. Menendez-Donis believes that the guerrillas killed him because they suspected him of being a government sympathizer. Later, her husband’s uncle was found shot, and in the period before her rape her neighbors repeatedly suggested to Ms. Menendez-Donis that she was in danger from rebels. After Ms. Menendez-Donis fled to the United States, her nineteen-year-old son was found beaten to death near her former home in Guatemala. Ms. Menendez-Donis maintains that her rapists were guerillas who attacked her because they believed that she was a government sympathizer.

Persons seeking political asylum must show that they have a well-founded fear of being persecuted on the basis of political beliefs or imputed political beliefs if they return to their country. See Behzadpour v. United States, 946 F.2d 1351, 1352-53 (8th Cir.1991); see also 8 U.S.C. § 1101(a)(42)(A). Asylum-seekers who demonstrate past political persecution presumptively have a well-founded fear of future persecution, and the burden shifts to the government to show that such a fear is objectively unreasonable. See Cigaran v. Heston, 159 F.3d 355, 357 (8th Cir.1998).

The IJ concluded that Ms. Menendez-Donis failed to show that the attack on her was motivated by her actual or imputed political beliefs. Ms. Menendez-Donis could not see her attackers, who were masked. They did not identify themselves; indeed, they did not say anything to Ms. Menendez-Donis other than to threaten to kill her. She testified that she may have recognized the voice of one of the attackers as being that of a family acquaintance associated with the guerillas, but she could not positively identify him. The IJ also discounted the reports that Ms. Menendez-Donis heard from neighbors before she was. raped as simple rumors. Given the four-year time lapse between her husband’s death and the attack on her, as well as the lack of certainty as to the identity of the rapists, the IJ found that the attack on Ms. Menendez-Donis was an instance of ordinary crime not political persecution.

The IJ went on to find that there was no basis for a reasonable belief that Ms. Men-endez-Donis would be persecuted were she to return to Guatemala. There was no direct evidence that the rebels were responsible for the death of Ms. Menendez-Donis’s husband. Even if he was killed in retaliation by the guerrillas, the IJ found that the civil war in Guatemala was over and that there was no evidence that the rebels were engaged in retaliation against former opponents. He based his findings on reports by the State Department and human rights organizations describing the current situation in Guatemala. Pursuant to 8 C.F.R. § 3.1(a)(7) (2003) (now codified at 8 C.F.R. 1003.1(a)(7), see 68 Fed.Reg. 9824, 9830 (Feb. 28, 2003)), the BIA adopted the IJ’s opinion as its final decision.

II.

Before the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, the applicable statute required courts reviewing BIA decisions to uphold factual determinations that were “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” 8 U.S.C. § 1105a(a)(4) (1994). The currently applicable section states that on review “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Despite the fact that the current language appears to be narrower, than the previous language, we have declined to treat the 1996 amendment as working any material change to the standard of review. See Navarijo-Barrios v. Ashcroft, 322 F.3d 561, 562 (8th Cir.2003). As other circuits have noted, Congress seems to have drawn the language for the new statute directly from INS v. Elias-Zacarias, 502 U.S. 478, 481 & n. 1, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992), a decision construing the former statute. See, e.g., Sevoian v. Ashcroft, 290 F.3d 166, 171 (3d Cir.2002). We thus apply the so-called substantial evidence standard outlined in the Elias-Zacarias opinion. Cf. Tang v. INS, 223 F.3d 713, 718 (8th Cir.2000).

The substantial evidence standard was originally imported into administrative law from cases dealing with the review of jury verdicts. See 2 Kenneth Culp Davis & Richard J. Pierce, Jr., Administrative Law Treatise 174-75 (3d ed.1994) (citing ICC v. Louisville & Nashville, R.R. Co., 227 U.S. 88, 94, 33 S.Ct. 185, 57 L.Ed. 431 (1912)); see also Robert L. Stern, Review of Findings of Administrators, Judges and Juries: A Comparative Analysis, 58 Harv. L.Rev. 70, 74-75 (1944). Hence, it has always involved a large amount of deference to the relevant fact-finder. For example, it is a more deferential standard than the “clearly erroneous” standard that we use for reviewing factual determinations by lower court judges. See, e.g., United States v. Abad, 350 F.3d 793, 797 (8th Cir.2003). Under that standard, we can overturn factual findings that we conclude are clearly wrong even though they are not unreasonable. In contrast, under the substantial evidence standard we cannot substitute our determination for that of the administrative fact-finder just because we believe that the fact-finder is clearly wrong. Cf. Feleke v. INS, 118 F.3d 594, 598 (8th Cir.1997); see also 2 Davis & Pierce, supra, at 174. Rather, before we can reverse we must find that it would not be possible for any reasonable fact-finder to come to the conclusion reached by the administrator. See Elias-Zacarias, 502 U.S. at 481 & n. 1, 483-84, 112 S.Ct. 812.

In 1951, the Supreme Court clarified the substantial evidence standard for reviewing the decision of an administrative agency by holding that it required a review of the record as a whole. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-88, 71 S.Ct. 456, 95 L.Ed. 456 (1951). When reviewing a jury verdict, a court ignores all evidence contrary to the verdict and then draws every reasonable inference in favor of the verdict from the remaining evidence. In the administrative setting, however, Universal Camera states that “the substantiality of the evidence must take into account whatever in the record fairly detracts from its weight.” Id. at 488, 71 S.Ct. 456. Thus, while we do not review the record to come to our own conclusions that we then measure against an administrative fact-finder’s determinations (as in the review of judicial fact-finding) we are required to consider all of the evidence when drawing our conclusions about the reasonableness of an administrator’s findings of fact.

In order to overturn the administrative findings, therefore, we must conclude not only that a persuasive case has been made for the opposite position, but that any reasonable fact-finder would be persuaded by it. See Elias-Zacarias, 502 U.S. at 481 & n. 1, 483-84, 112 S.Ct. 812. The standard thus focuses on the hypothetical fact-finder who would refuse to be persuaded by the argument against the factual findings: If such a hypothetical fact-finder could do so reasonably, then the findings must be upheld. The hypothetical fact-finder’s obstinacy must be grounded in a proper amount of evidence: “Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938); see Shipley v. Arkansas Blue Cross and Blue Shield, 333 F.3d 898, 901 (8th Cir.2003). Substantial evidence, however, does not mean a preponderance of the evidence. Leonard v. Southwestern Bell Corp. Disability Income Plan, 341 F.3d 696, 701 (8th Cir.2003).

In other words, a reviewing court must uphold factual findings if three conditions exist. First, the factual findings must be supported by some substantial level of evidence, which need not rise to the level of a preponderance. Second, the evidence must be substantial when the entire record is examined: Contrary evidence may not simply be ignored on review. Finally, the evidence must be such that it would be possible for a reasonable fact-finder to reach the same conclusions that the administrative fact-finder did. If any of these conditions is not met, the administrative decision must be reversed.

III.

Applying this standard to Ms. Mendez-Donis’s case we feel obliged to uphold the IJ’s decision. Given the inconsistency in Ms. Menendez-Donis’s testimony and information from the State Department and elsewhere, there was more than a scintilla of evidence supporting the IJ’s conclusion that she did not have a well-founded fear of future persecution. Furthermore, the IJ’s findings are consistent with the cumulative weight of the gaps in Ms. Menendez-Donis’s testimony, namely, the unknown circumstances of her son’s death, and the lack of clear evidence as to the identity of her attackers or the motives for their attacks. Substantial evidence on the record as a whole thus supports the IJ’s conclusion. Perhaps a reasonable fact-finder could have found in Ms. Menen-dez-Donis’s favor, but that is not the question here. Applying the appropriate standard, we cannot say that every reasonable fact-finder would come to a conclusion different from the one that the IJ reached.

Since we must uphold the IJ’s determination that Ms. Menendez-Donis was not subject to previous political persecution, we also must reject her claim that she is entitled to humanitarian asylum. Even if asylum-seekers lack a well-founded fear of future persecution, they can still be eligible for so-called “humanitarian asylum” if the past persecution was especially atrocious. Francois v. INS, 283 F.3d 926, 930-31 (8th Cir.2002). While we do not doubt that Ms. Menendez-Donis was the victim of a brutal crime, we are required to affirm the IJ’s finding that it was not an act of political persecution.

IV.

We affirm the BIA’s decision for the reasons indicated.