United States Court of Appeals
For the First Circuit
No. 06-2650
ANA LILIA ORTIZ-ARANIBA,
Petitioner,
v.
PETER D. KEISLER,* ACTING ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Torruella and Lipez, Circuit Judges,
and Fusté,** District Judge.
John P. Garan on brief for petitioner.
James E. Grimes, Senior Litigation Counsel, Office of
Immigration Litigation, Peter D. Keisler, Assistant Attorney
General, and Linda S. Wernery, Assistant Director, Office of
Immigration Litigation, on brief, for respondent.
October 11, 2007
*
Pursuant to Fed. R. App. P. 43(c)(2), Acting Attorney General
Peter D. Keisler is substituted for former Attorney General Alberto
R. Gonzales as respondent.
**
Of the District of Puerto Rico, sitting by designation.
LIPEZ, Circuit Judge. The petitioner, Ana Lilia Ortiz-
Araniba ("Ortiz"), a native and citizen of El Salvador, seeks
review of a decision of the Board of Immigration Appeals ("BIA")
affirming an Immigration Judge's ("IJ") denial of her application
for asylum and withholding of removal. She claims that the BIA
erred in finding that she was not a member of a well-defined social
group for asylum eligibility purposes and in finding that the
government of El Salvador was willing and able to control her
potential persecutors. Because we find that the latter
determination is supported by substantial evidence, we deny Ortiz’s
petition for review without addressing the social group issue.
I.
Ortiz entered the United States without permission on
February 22, 2004. The Department of Homeland Security (“DHS”)
issued a Notice to Appear four days later. Through her counsel,
Ortiz conceded removability and requested asylum, withholding of
removal, and protection from removal under the Convention Against
Torture (“CAT”). In her application for asylum, Ortiz stated that
in October 2000, her house in El Salvador was robbed by a man
neighbors identified as José Milton Hernandez, whom she believed to
be a member of the Mara Salvatrucha gang. She reported the robbery
to the police, and Hernandez was promptly arrested. Hernandez was
later convicted and served four years in prison. According to her
testimony at the merits hearing, Ortiz was approached several times
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over the next few years by two of Hernandez’s acquaintances, who
told her that Hernandez would harm her once he left prison in June
2004. Frightened and worried that the police would be unable to
protect her, Ortiz fled to the United States, leaving her three-
year-old son behind with her mother.
Following the hearing in May 2005, the IJ issued an oral
decision denying all forms of relief. Ortiz filed a timely notice
of appeal with the BIA, contesting the IJ's denial of asylum and
withholding of removal. The BIA affirmed the IJ’s decision and
dismissed Ortiz's appeal. In its brief per curiam opinion, the BIA
held that Ortiz was ineligible for asylum or withholding of removal
because she had failed to demonstrate that she was a member of a
well-defined social group for asylum eligibility purposes, and that
the government of El Salvador is unable or unwilling to control her
alleged persecutors.1 Ortiz has petitioned this court for review
of the BIA's decision, claiming that the BIA erred in finding her
ineligible for relief.
II.
Ortiz asserts that the BIA erred in ruling that she was
not eligible for asylum under section 208 of the Immigration and
Nationality Act ("INA"), 8 U.S.C. § 1158. In order to qualify for
asylum, a petitioner must demonstrate either past persecution or a
1
The BIA also held that Ortiz had waived relief under CAT by
not challenging the IJ's denial of CAT relief. Ortiz advances no
CAT arguments in her petition.
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well-founded fear of future persecution on account of her race,
religion, nationality, political opinion, or membership in a
particular social group. 8 U.S.C. § 1158(b)(1)(B)(i); Attia v.
Gonzales, 477 F.3d 21, 23 (1st Cir. 2007). The petitioner must
also demonstrate that the persecution has some connection to
governmental action or inaction. Orelien v. Gonzales, 467 F.3d 67,
72 (1st Cir. 2006).
Ortiz argues that the BIA erred in concluding that she
had not demonstrated that she is a member of a well-defined social
group eligible for asylum. She contends that she is a member of a
group composed of “victim[s] of gang-related crime who [have]
provided crucial evidence against the perpetrator[s].” We need not
address whether the BIA erred in determining that this group is
"too broad to constitute a particular social group for asylum
eligibility purposes" because Ortiz has to show that her reasonable
fear of future persecution is connected to government action or
inaction. That is, Ortiz's persecution claim requires her to
demonstrate a reasonable fear of "mistreatment that 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)); see also Da Silva v. Ashcroft, 394 F.3d 1, 7 (1st
Cir. 2005) ("Action by non-governmental actors can undergird a
claim of persecution only if there is some showing that the alleged
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persecutors are in league with the government or are not
controllable by the government."). The question whether the
government of El Salvador is unwilling or unable to control Ortiz's
potential persecutors is a question of fact that we review under
the highly deferential substantial evidence standard. See Attia,
477 F.3d at 23. Under this standard, we must uphold the BIA's
findings of fact "unless any reasonable adjudicator would be
compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B);
Harutyunyan v. Gonzales, 421 F.3d 64, 68 (1st Cir. 2005).
In determining whether a government is willing and able
to control persecutors, we have explained that a prompt response by
local authorities to prior incidents is “the most telling datum.”
Harutyunyan, 421 F.3d at 68. Where the police are willing to
investigate incidents of violence and institute criminal
proceedings against the perpetrators, we have held that the
requisite connection between government inaction and fear of future
persecution could not be shown. Id. Similarly, the Ninth Circuit
has held that a government's ability to catch and punish assassins
acting on behalf of an organization “shows that the government
controls” that organization. Elnager v. INS, 930 F.2d 784, 788
(9th Cir. 1991). Here, Ortiz’s own testimony demonstrates that the
local police promptly responded to her previous complaint and
arrested Hernandez. More tellingly, perhaps, Hernandez was
convicted and served four years in prison. The IJ and the BIA
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concluded from this evidence that the government was both willing
and able to confront Ortiz's potential persecutor. We agree that
this conclusion is supported by substantial evidence.
Seeking to convince us otherwise, Ortiz attempts to
distinguish between the government's proven ability to prosecute
Hernandez for his past crime and its ability to protect her from
future retribution. Her argument that the government cannot
prevent future attacks against her is based on the fact that the
nearest police station is located some distance from her home and
that, as she has no telephone, she would be required to use a
neighbor’s phone to call for aid. This argument misunderstands the
law. "[A]n applicant seeking to establish persecution by a
government based on violent conduct of a private actor must show
more than 'difficulty ... controlling' private behavior." Menjivar
v. Gonzales, 416 F.3d 918, 921 (8th Cir. 2005) (quoting In re
McMullen, 17 I. & N. Dec. 542, 546 (BIA 1980)). An applicant must
show the government's acquiescence in the persecutor's acts or its
inability or unwillingness to investigate and punish those acts,
and not just a general difficulty preventing the occurrence of
particular future crimes. See Harutyunyan, 421 F.3d at 68
(affirming the BIA's finding that, although there had been three
incidents involving the same group of perpetrators, the necessary
connection to government inaction was missing because the police
had investigated each incident promptly and brought criminal
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charges against the perpetrators).2 It is possible that the police
would not be able to respond quickly enough to prevent Hernandez
from harming Ortiz, but this delay does not amount to mistreatment
by the government. Police response cannot be instantaneous.
Indeed, no government could provide the sort of absolute protection
Ortiz seeks.
Ortiz also introduced documentary evidence of the
widespread violent activities of the Mara Salvatrucha in El
Salvador. She argues that this evidence shows that the Salvadoran
police cannot prevent gang violence and demonstrates the
government's inability to control the gang. However, the BIA did
not err in considering, as countervailing evidence, the
government's willingness and ability to prosecute and incarcerate
particular gang members as evidence of its ability and willingness
to control the gang. See Menjivar, 416 F.3d at 922 ("To whatever
extent [the documentary evidence] show[s] that there is a general
problem of gang violence in El Salvador, we do not believe [it] can
override the evidence in this case that the police conducted a
thorough investigation of [a particular gang member's] criminal
acts...") The BIA found that Ortiz had failed to establish that
2
In Harutyunyan, we considered the connection to government
action or inaction in the context of past persecution. 421 F.3d at
68. However, the same analysis is also applicable when the
question is raised in the context of fear of future persecution.
See Elanger, 930 F.2d at 788 (considering government's willingness
to prosecute perpetrators of past crimes in the context of claim of
fear of future persecution).
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her potential persecutors are a group that the government is unable
or unwilling to control, and the evidence she introduced does not
compel a contrary conclusion. Accordingly, we uphold the BIA's
determination that Ortiz has failed to demonstrate her eligibility
for asylum.
III.
Ortiz also argues that the BIA erred in holding that she
is not eligible for withholding of removal under INA § 241(b)(3),
8 U.S.C. § 1231(b)(3). A claim for withholding of removal
"'carries with it a more stringent burden of proof than does a
counterpart effort to obtain asylum.'" Raza v. Gonzales, 484 F.3d
125, 129 (1st Cir. 2007) (quoting Orelien, 467 F.3d at 73). As
Ortiz has not demonstrated that the evidence compels a ruling that
she is eligible for asylum protection, her claim for withholding of
removal necessarily fails as well.
For the foregoing reasons, we deny the petition for
review.
So ordered.
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