United States Court of Appeals
For the Eighth Circuit
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No. 17-1865
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Evelyn Areceli Hernandez-Guillen
lllllllllllllllllllllPetitioner
v.
Jefferson B. Sessions, III,
United States Attorney General,
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: April 13, 2018
Filed: June 1, 2018
[Unpublished]
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Before GRUENDER, BENTON, and GRASZ, Circuit Judges.
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PER CURIAM.
Evelyn Areceli Hernandez-Guillen (“Hernandez”), a citizen of El Salvador,
petitions for review of an order of the Board of Immigration Appeals (the “Board”).
An immigration judge (“IJ”) denied her application for withholding of removal, and
the Board affirmed, ordering her removal.
In 2005, Hernandez was detained for illegally entering the United States near
Brownsville, Texas. Officials charged her as removable and served her with a notice
to appear before an IJ at a date to be set later. Because it was unable to detain
Hernandez for a longer term due to lack of camp space, the Border Patrol released her
with instructions to provide an address to the Immigration Court in Harlingen, Texas.
Hernandez failed to provide an address to the Immigration Court, and a month later
an IJ ordered her removed in absentia.
In 2011, Hernandez was convicted in a Minnesota state court of being an
accessory after the fact to arson. United States Immigration and Customs
Enforcement placed her under an Order of Supervision. In 2012, Hernandez filed an
application for asylum and withholding of removal. She attached an affidavit
explaining that she feared harm from her ex-husband should she return to El
Salvador. In written pleadings, Hernandez corrected her home country from
Honduras to El Salvador but otherwise admitted the factual allegations and charge
contained in the 2005 notice to appear. She also subsequently narrowed her
requested relief to withholding of removal alone.
At a hearing on February 22, 2016, Hernandez described three instances where
she alleged her ex-husband slapped her in the face, with the first instance occurring
only three months after they were married. The third time, he injured her eye with his
finger, and her eye became bloody and swollen for several days. She told her parents
about the abuse after the second incident, but she never told the police. She explained
that she did not believe the police would help her because she heard about an incident
five years prior where her uncle hit her aunt, her aunt told the police, and the police
did nothing.
Hernandez testified that she fled to the United States and, after about a year,
decided that she wanted a divorce. She further testified that the only contact with her
ex-husband since she fled and decided to divorce him occurred in the United States,
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when he gave her and a friend a ride home from work. He allegedly crashed into
three cars while driving in the snow, and then ran away. After about seven years of
attempts, her lawyer obtained the divorce and Hernandez received sole physical and
legal custody of their son. Her son resides with her parents in El Salvador, and he has
not had contact with his father since living with her parents. Hernandez is currently
re-married to a man in the United States, with whom she has one daughter. She
continues to fear harm from her ex-husband should she return to El Salvador.
“An alien is eligible for withholding of removal upon showing a clear
probability that his ‘life or freedom would be threatened in that country because of
[his] race, religion, nationality, membership in a particular social group, or political
opinion.’” Quinonez-Perez v. Holder, 635 F.3d 342, 345 (8th Cir. 2011) (quoting 8
U.S.C. § 1231(b)(3)(A)). “The clear probability standard for withholding of removal
is more onerous than the well-founded fear standard for asylum.” Malonga v.
Mukasey, 546 F.3d 546, 551 (8th Cir. 2008).
The IJ found Hernandez generally credible but denied the application for
withholding of removal, finding that the slapping incidents did not rise to the level
of past persecution based on one of the five protected grounds. The IJ noted that
neither Hernandez nor her parents reported the incidents to the police, and the IJ
discounted the story about Hernandez’s aunt because it was a single incident
occurring at least five years before Hernandez was married. The IJ also found that
Hernandez failed to prove a clear probability of future persecution because she
divorced her ex-husband and obtained sole custody of their son, indicating that she
could obtain protection from the Salvadoran government. Thus, the IJ denied the
application on the basis that Hernandez failed to meet her burden of proof. The
Board agreed, finding Hernandez did not establish that the Salvadoran government
was unable or unwilling to control her ex-husband. Hernandez argues on appeal that
the Board’s findings impermissibly differed from the IJ’s findings and that the
Board’s analysis is not supported by the evidence.
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We review the Board’s decision for substantial evidence on the record as a
whole. Saldana v. Lynch, 820 F.3d 970, 974 (8th Cir. 2016). “[T]he 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). “To the extent . . . that the
[Board] adopted the findings or the reasoning of the IJ, we also review the IJ’s
decision as part of the final agency action.” Falaja v. Gonzales, 418 F.3d 889, 894
(8th Cir. 2005).
Hernandez’s argument that the Board’s findings differ from the IJ’s findings
misreads the IJ’s decision. It is true the IJ stated in its oral decision “the Court would
find . . . that such persecution was either by the government or by someone that the
government was unwilling or unable to control.” The IJ then proceeded to discuss
evidence that persecution was not by the government or someone that the government
was unwilling or unable to control. It is evident from the context the IJ’s initial
statement was simply a misstatement and that the IJ ultimately found against
Hernandez on that issue. Thus, the Board did not err in stating the IJ found that “the
respondent did not establish that the Salvadoran government was unable or unwilling
to control her ex-husband.”
Substantial evidence also supports the Board’s finding that Hernandez failed
to show a clear probability the Salvadoran government was unable or unwilling to
control her ex-husband. Hernandez’s argument is based on her belief that Salvadoran
police would not assist her with her ex-husband. “[T]he 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.” Menjivar v. Gonzales, 416 F.3d 918, 921 (8th Cir. 2005). While
an IJ may not baldly disbelieve a witness’s testimony about whether the government
will help, see Ngengwe v. Mukasey, 543 F.3d 1029, 1035–36 (8th Cir. 2008), an IJ
may disbelieve testimony based on facts in the record, see Salman v. Holder, 687 F.3d
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991, 995 (8th Cir. 2012). Here, the IJ and the Board relied on facts in the record in
their rejection of Hernandez’s testimony regarding Salvadoran police.
We reject Hernandez’s contention that our decision in Ngengwe, where we
reversed an order denying asylum to an alien who feared police would not act,
controls the outcome here. The alien in Ngengwe only bore the lesser asylum burden
of proving a well-founded fear, see Ngengwe, 543 F.3d at 1032–33, while Hernandez
needs to prove a clear probability of persecution for withholding of removal.
Ngengwe is also distinguishable because the IJ in Ngengwe failed to address all of the
testimony in the record, see id. at 1035, while the IJ in this case gave specific reasons
to reject the relevant testimony. For example, the IJ here concluded the aunt’s one
story did not represent how Salvadoran police would act in Hernandez’s
circumstances because the story was an isolated instance that occurred five years
before Hernandez was married. The IJ and the Board also did not believe Hernandez
proved a clear probability of future persecution because Hernandez is now divorced
from her ex-husband, and there was no evidence he had interacted with her or her son
since the divorce. The IJ and the Board reasonably concluded that Hernandez’s
evidence did not meet her burden of proof, and no contrary conclusion is compelled
here.
We deny the petition for review.
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