NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 10-3225
Y. V. Z.,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED
STATES OF AMERICA,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A088-013-426)
Before: McKEE, Chief Judge, FUENTES and COWEN,
Circuit Judges.
Submitted pursuant to Third Circuit LAR 34.1(a)
August 13, 2012
(Opinion filed: August 14, 2012)
OPINION
McKEE, Chief Judge.
Y. V. Z. 1 has filed a petition for review of a decision of the Board of Immigration
Appeals dismissing her appeal from an Immigration Judge’s denial of her applications
for asylum, withholding of removal and relief under Article 3 of the Convention Against
Torture (“CAT”). For the reasons that follow, we will deny the petition for review.
1
By Order dated August 26, 2011, we granted Petitioner’s motion to file her Briefs, Joint
Appendix and other submissions under seal.
I.
Because we write primarily for the parties, we need not set forth the factual or
procedural history of this case.
Where, as here, the BIA adopts the reasoning of the IJ and supplements it with
reasoning of its own, this court reviews both decisions. See Paripovic v. Gonzales, 418
F.3d 240, 243 n.4 (3d Cir. 2005). Factual findings are reviewed for substantial evidence
and are considered conclusive “unless any reasonable adjudicator would be compelled to
conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Factual findings include, among
other determinations, whether an applicant has suffered “persecution,” holds a “well-
founded” fear of future persecution, and has established that the past acts or future fears
were or will be “on account of” a protected ground. See Lukwago v. Ashcroft, 329 F.3d
157, 167 & 173 (3d Cir. 2003).
Legal conclusions are reviewed de novo, with deference to the agency when
implicating an ambiguous section of the Act. See Gomez-Zuluaga v. Att’y Gen., 527 F.3d
330, 339 (3d Cir. 2008). “Whether an applicant’s proffered ‘particular social group’ is
cognizable under [the INA] is a question of law and is therefore subject to de novo
review. . . . [But] [s]uch de novo review of the BIA’s legal determinations is of course
‘subject to established principles of deference’ set out in Chevron U.S.A., Inc. v. Natural
Resources Defense Council, 467 U.S. 837 (1984).” Id. (citations and footnote omitted).
II.
1. Asylum and withholding of removal.
2
Section 208 of the INA gives the Attorney General discretion to grant asylum to
removable aliens. 8 U.S.C. § 1158(a). However, that relief can only be granted if the
applicant is a “refugee.” 8 U.S.C. § 1158(b). “[R]efugee” is defined as:
[A]ny person who is outside any country of such person’s
nationality or, in the case of a person having no nationality, is
outside of any country in which such person last habitually
resided, and who is unable or unwilling to avail himself or
herself of the protection of that 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). Accordingly, an alien’s ability to establish that he or she is
entitled to relief as a refugee turns on whether he or she can establish persecution “on
account of” one of the five statutory grounds. INS v. Elias-Zacarias, 502 U.S. 478
(1992). The alien must also establish that “at least one central reason” for the
“persecution” was or would be because of (i.e., “on account of”) one of the five protected
grounds. 8 U.S.C. § 1158(b)(1)(B)(i). 2
An applicant who establishes past persecution is “entitled to a presumption that his
life or freedom will be threatened if he returns.” Gabuniya v. Att’y Gen., 463 F.3d 316,
321 (3d Cir. 2006); see 8 C.F.R. § 208.16(b)(1). Where an applicant is unable to
demonstrate that he or she has been the victim of past persecution, the applicant
nonetheless becomes eligible for asylum upon demonstrating a well-founded fear of
future persecution if returned to his or her native country. See Abdulrahman v. Ashcroft,
2
The REAL ID Act, which applies to this case, supersedes the prior “at least in part”
mixed-motive standard. See Ndayshimiye v. Att’y Gen., 557 F.3d 124, 129 (3d Cir.
2009).
3
330 F.3d 587, 592 (3d Cir. 2003). The well-founded fear of persecution standard
involves both a subjectively genuine fear of persecution and an objectively reasonable
possibility of persecution. INS v. Cardoza-Fonseca, 480 U.S. 421, 430-31 (1987). The
subjective prong requires a showing that the fear is genuine. Mitev v. INS, 67 F.3d 1325,
1331 (7th Cir. 1995). Determining whether the fear of persecution is objectively
reasonable requires ascertaining whether a reasonable person in the alien’s circumstances
would fear persecution if returned to a given country. Chang v. INS, 119 F.3d 1055,
1065 (3d Cir. 1997).
If the persecution was not directly committed by the government or its agents, the
petitioner must also establish that it was conducted “by forces the government is unable
or unwilling to control.” Kibinda v. Att’y Gen., 477 F.3d 113, 119 (3d Cir. 2007).
Withholding of removal is mandatory if “the Attorney General decides that [the]
alien’s life or freedom would be threatened” on account of a protected ground. 8 U.S.C.
§ 1253(h)(1) (re-codified, as amended, at 8 U.S.C. § 1231(b)(3)). To qualify for
withholding of removal, an alien must establish a “clear probability of persecution,” i.e.,
that it is more likely than not that he or she would suffer persecution upon returning
home. See INS v. Stevic, 467 U.S. 407, 429-30 (1984). Since this standard is more
demanding than that governing eligibility for asylum, an alien who fails to qualify for
asylum is necessarily ineligible for withholding of removal. Zhang v. Slattery, 55 F.3d
732, 738 (2d Cir. 1995).
2. Relief under the CAT.
4
“An applicant for relief on the merits under [Article III] of the Convention Against
Torture bears the burden of establishing ‘that it is more likely that not that he or she
would be tortured if removed to the proposed country of removal.” Sevoian v. Ashcroft,
290 F.3d 166, 174-175 (3d Cir. 2002) (quoting 8 C.F.R.§ 208.16(c)(2)). “The United
States Senate specified this standard, as well as many of the other standards that govern
relief under the Convention, in several ‘understandings’ that it imposed on the United
States’ ratification of the Convention Against Torture.” Id. at 175 (citations omitted).
“The standard for relief has no subjective component, but instead requires the alien to
establish, by objective evidence, that he is entitled to relief.” Id. (citation and internal
quotation marks omitted). The alien’s testimony, if credible, may be sufficient to sustain
the burden of proof without corroboration. Mansour v. INS, 230 F.3d 902, 907 (7th Cir.
2000) (citing 8 C.F.R. § 208.16(c)(2)). If an alien meets his or her burden of proof,
withholding of removal or deferring of removal is mandatory. INA § 241(b)(3); 8
C.F.R. §§ 208.16 – 208.18.
Under the implementing regulations for the Convention:
Torture is defined as an act by which severe pain and
suffering, whether physical or mental, is intentionally
inflicted on a person for such purposes as obtaining from him
or her or a third person information or a confession, punishing
him or her for an act he or she has committed or is suspected
of having committed, or intimidating or coercing him or her
or a third person, or for any reason based on discrimination of
any kind, when such pain or suffering is inflicted by or at the
instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity.
8 C.F.R. § 208.18(a)(1).
5
“[T]he regulations clearly state that there is no acquiescence to torture unless the
relevant officials know about the torture before it occurs.” Sevoian, 290 F.3d at 176
(citing 8 C.F.R. § 208.18(a)(7)) (emphasis in original). In Silva-Rengifo v. Att’y Gen.,
473 F.3d 58, 70 (3d Cir. 2007), we held that “acquiescence to torture [as used in the
regulation] requires only that government officials remain willfully blind to torturous
conduct and breach their legal responsibility to prevent it.”
The regulations also provide:
(3) In assessing whether it is more likely than not that an
applicant would be tortured in the proposed country of
removal, all evidence relevant to the possibility of future
torture shall be considered, including, but not limited to:
(i) Evidence of past torture inflicted upon the applicant;
(ii) Evidence that the applicant could relocate to a part of the
country of removal where he or she is not likely to be
tortured;
(iii) Evidence of gross, flagrant or mass violations of human
rights with the country of removal, where applicable; and
(iv) Other relevant information regarding conditions in the
country of removal.
8 C.F.R. § 208.16(c)(3). “[C]ountry conditions alone can play a decisive role [in
determining if relief is warranted] . . . [and] the convention does not require that the
prospective risk of torture be on account of certain protected grounds.” 3 Kamalthas v.
INS, 251 F.3d 1279, 1280 (9th Cir. 2001).
“Torture is an extreme form of cruel and inhuman treatment and does not include
lesser forms of cruel and inhuman treatment or punishment that do not amount to
3
Because the risk of torture does not need to be on account of certain protected grounds,
“the inability to state a cognizable asylum claim does not necessarily preclude relief
under the [CAT].” Kamalthas, 251 F.3d at 1280.
6
torture.” 8 C.F.R. § 1208.18(a)(2). Therefore, “even cruel and inhuman behavior by
government officials may not implicate the torture regulations.” Sevoian, 290 F.3d at
175. “[T]orture covers intentional governmental acts, not negligent acts or acts by
private individuals not acting on behalf of the government.” In re J-E-, 23 I. & N. Dec.
291, 299 (BIA 2002). The BIA has also held that “[v]iolence committed by individuals
over whom the government has no reasonable control does not implicate” relief under the
CAT. In re Y-L-, A-G-, R-S-R-, 23 I. & N. Dec. 270, 280 (BIA 2002). Similarly:
[T]he existence of a consistent pattern of gross, flagrant, or
mass violations of human rights in a particular country does
not, as such, constitute a sufficient ground for determining
that a particular person would be in danger of being subjected
to torture upon his or her return to that country. Specific
grounds must exist that indicate the individual would be
personally at risk.
In re S-V-, 22 I. & N. Dec. 1306, 1313 (BIA 2000).
III.
Y.V.Z. makes a number of arguments in support of her petition for review. Each
is considered separately below.
1. Y.V.Z. suffered persecution at the hands of Huamani and has a
well-founded fear of persecution at his hands “on account of”
of her membership in her two proposed social groups, both
of which have “social visibility.”
Y.V.Z. contended that she was persecuted by Huamani and had a well-founded
fear of future persecution by him “on account of” her membership in two proposed
“particular social group[s],” viz., “women in Peru who are in relationships that they are
unable to leave” and “Peruvian women who complain of gender-based violence.” As
7
further noted, both the IJ and the BIA held, inter alia, that the two proposed social groups
were not cognizable under the INA because they lacked “social visibility.” In this
portion of her petition, Y.V.Z. argues that her proposed social groups have “social
visibility” and that she suffered past persecution and has a well-founded fear of future
persecution “on account of” her membership in both social groups.
This petition was originally listed for disposition for October 3, 2011. However,
we held the petition CAV pending our decision in Valdiviezo-Galdamez v. Attorney
General of the United States, No. 08-4564. That case has since been decided. See
Valdiviezo-Galdamez v. Attorney General of the United States (“Valdiviezo-Galdamez
II”), 663 F.3d 582 (3d Cir. 2011).
There, we discussed at length the BIA’s initial interpretation of the term
“particular social group” and its later development of the requirement of “social
visibility” for determining whether a proposed social group constitutes a “particular
social group” for purposes of asylum and withholding of removal under the INA. We
held that the BIA’s requirement of “social visibility” which was applied in denying
Valdiviezo-Galdamez’s applications for relief -- and which was applied in denying
Y.V.Z.’s applications for relief -- was not entitled to deference under the standards
established in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837 (1984), because it was inconsistent with a number of cases in which the BIA had
found that a proposed social group was a “particular social group” under the standard it
had earlier established in Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985), overruled on
8
other grounds by Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987). Valdiviezo-
Galdamez II, 663 F.3d at 603-07.
Although the BIA can certainly change the requirements for establishing
membership in a “particular social group,” we explained in Valdiviezo-Galdamez II that
the BIA must “announce[] a principled reason” for departing from established precedent,
and that it had not done so in denying Valdiviezo-Galdamez’s claim that young men
resisting recruitment into a criminal gang could constitute a particular social group for
purposes of establishing refugee status. Id. at 608. We held that, unless or until the BIA
provides a “principled reason” for its departure from established precedent, its prior
ruling in Matter of Acosta should control inquiries into whether an asylum applicant’s
proposed social group constitutes a “particular social group” under the Act. Id. 4 We
therefore granted Valdiviezo-Galdamez’s petition for review and remanded it to the BIA
to analyze his proposed social group in a manner consistent with our holding in
Valdiviezo-Galdamez II. Id. at 608-09.
Here, although both the IJ and the BIA held that the two social groups proposed by
Y.V.Z. lacked “social visibility,” Valdiviezo-Galdamez II does not require us to remand
Y.V.Z.’s petition to the BIA because of the BIA’s alternate holding that Y.V.Z. did not
show that at least one central reason for the mistreatment she suffered at Huamani’s
hands, or her fear of future mistreatment by Huamani, was because of a protected ground,
4
We also noted in Valdiviezo-Galdamez II that the “BIA must not only announce a
‘principled reason’ for any changes it makes to its definition of ‘particular social group,”
any announced changes must be based on a permissible construction of the statute.” 663
F.3d at 609 n.19.
9
i.e., her inclusion in a “particular social group.” We agree with the BIA that the record c
shows that Y.V.Z. was mistreated by Huamani not because of her membership in a social
group, but rather because of “purely personal reasons,” viz., his personal, aberrant desire
to become Y.V.Z.’s boyfriend.
2. Y.V.Z. faces persecution by Huamani on account
of her political opinion that she deserves to
be free from violence and harm.
Y.V.Z. argues that the IJ and the BIA erred in holding that she was not persecuted
by Huamani on account of her political opinion, viz., her opinion that she deserves to be
free from harm and violence. She further argues that Huamani imputed that political
opinion to her.
In order to prevail on an asylum or withholding of removal claim based on
political opinion, “an alien must (1) specify the political opinion on which he or she
relies, (2) show that he or she holds that opinion, and (3) show that he or she would be
persecuted or has a well-founded fear of persecution based on that opinion.” Fatin v.
INS, 12 F.3d 1233, 1242 (3d Cir. 1993). “[P]ersecution may be on account of a political
opinion the applicant actually holds or on account of one the [persecutor] has imputed to
him.” Lukwago, 329 F.3d at 181. “In determining whether an asylum applicant was
persecuted because of an imputed political opinion, we focus on whether the persecutor
attributed a political opinion to the victim, and acted upon the attribution.” Espinosa-
Cortez v. Att’y Gen., 607 F.3d 101, 108 (3d Cir. 2010) (citation and internal quotation
marks omitted). “This focus on whether the persecutor (or would-be persecutor)
attributes a political view to the victim makes clear that the INA makes motive critical
10
and an asylum applicant must provide some evidence of motive, direct or circumstantial.”
Id. (citation and internal quotation marks omitted).
Even if we assume for argument’s sake that Y.V.Z.’s desire to be free from harm
and violence is an expression of a political opinion, there is no evidence in this record to
show that Huamani knew of that political opinion. Holding a political opinion, without
more, is not sufficient to show persecution on account of that political opinion. Mendez-
Barrera v. Holder, 602 F.3d 21, 27 (1st Cir. 2010). There must be evidence that
Huamani knew of Y.V.Z.’s political opinion and that he targeted her because of it. Id.
As we have said, there is no evidence that Huamani knew about Y.V.Z.’s assumed
political opinion or that he targeted her because of it. Rather, as noted above, Huamani
mistreated Y.V.Z. for purely personal reasons, viz.. his desire to be her boyfriend.
3. Y.V.Z. is entitled to relief under the CAT.
Y.V.Z. argues that the IJ and the BIA erred by holding that she has not established
that she has been or would likely be tortured by Huamani by or with the acquiescence of
a government official. Her argument is based on her contention that even after she made
a report to the police about Huamani’s actions towards her, he continued to threaten,
taunt and inflict violence on her. In her view, that constitutes “willful blindness” on the
government’s part. We disagree.
In Valdiviezo-Galdamez II, Valdiviezo-Galdamez filed five police reports about
the criminal gang’s violent efforts to recruit him, with no tangible results. 663 F.3d at
610. We noted that the BIA found that a lack of tangible results after the filing of the
five reports was insufficient to show that the government was willfully blind or
11
acquiesced to the criminal gang’s activities. Id. We also held that the BIA’s conclusion
was a reasonable inference that could be drawn from the record. Id.
Thus, it is clear that failure to act on a single police report cannot rise to the kind
of governmental acquiescence of willful blindness that is needed to support a claim
under the CAT.
V. CONCLUSION
For all of the above reasons, we will deny the petition for review.
12