Israel Felipe Lira Saldana, et al v. Eric H. Holder, Jr.

Filing

OPINION FILED - THE COURT: James B. Loken, Diana E. Murphy and Steven M. Colloton AUTHORING JUDGE:Steven M. Colloton (PUBLISHED), DISSENT BY: Diana E. Murphy [4393060] [15-1226]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-1226
___________________________
Israel Felipe Lira Saldana; Elizabeth Pino Peralta; Matilda Isabel Lira Pino; Israel
Felipe Lira Pino; Karla Elizabeth Godinez Pino,
lllllllllllllllllllllPetitioners,
v.
Loretta E. Lynch, U.S. Attorney General,
lllllllllllllllllllllRespondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: October 22, 2015
Filed: April 28, 2016
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Before LOKEN, MURPHY, and COLLOTON, Circuit Judges.
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COLLOTON, Circuit Judge.
Israel Felipe Lira Saldana, his wife, Elizabeth Pino Peralta, and their children,
Matilda, Israel, and Karla, petition for review of a decision of the Board of
Immigration Appeals denying their applications for asylum, withholding of removal,
and relief under the Convention Against Torture. We conclude that the Board’s

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decision was supported by substantial evidence, and we therefore deny the petition for
review.
I.
The petitioners are natives and citizens of Mexico. They entered the United
States in August 2011 and applied for asylum, withholding of removal, and relief
under the Convention against Torture. The petitioners contend that members of the
Matazetas gang in Mexico will persecute them if they are returned to Mexico, because
the Matazetas believe that Elizabeth and her sister, Angelica Pino Peralta, were
romantically involved with members of a rival criminal organization known as Los
Zetas. In terms of the governing statutes, the petitioners asserts that the Matazetas
will persecute them based on their membership in a particular social group, and that
the Mexican government is unwilling or unable to control the Matazetas. See 8 U.S.C.
§§ 1101(a)(42)(A), 1158(b)(1).
At a hearing before an immigration judge, daughter Karla testified concerning
an incident that occurred in August 2011, in the state of Veracruz, while she resided
at the home of Elizabeth’s mother with Angelica, Angelica’s four children, and
Elizabeth’s brother. According to Karla, masked men armed with weapons entered
the house, assaulted Karla’s uncle, and asked where to find Angelica and “Chula,” a
nickname used by Elizabeth. The men mentioned former boyfriends of Angelica who
were members of the Zetas gang and sought information about the Zetas from the
women. The men threatened to rape and torture Angelica and Elizabeth when they
found them. According to Karla, the intruders took a seven-year-old son of
Angelica’s outside for “interrogation” and influenced him to tell a “commander” that
Elizabeth had dated a member of the Zetas. After this incident, Angelica (who had
been hiding in the home) and Karla fled the area and eventually traveled to the United
States. But the armed men returned later and abducted Karla’s uncle and
grandmother, who remain missing.
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When Elizabeth learned about the home invasion, she fled the country with
Israel and the other two children. Israel testified that he believed the family was being
targeted because of Angelica’s romantic relationship with a member of Los Zetas. He
said that a friend in Veracruz had called him after the family departed and said that
unidentified men had said they would kill anyone found in the petitioners’ home.
Elizabeth reported hearing later from a friend in Mexico that she should “not come
back because they’re still looking for you.”
The petitioners’ expert witness, Dr. Thomas Boerman, testified that drugtrafficking organizations are engaged in criminal activity throughout most of Mexico.
He explained that the Matazetas claim “to be essentially nationalistic protectors of the
state of Veracruz and its population.” He opined in a declaration that the Mexican
government “is essentially powerless to contain” criminal organizations, and that
“once targeted, the gravity of the threat toward an individual does not diminish across
time.”
The immigration judge credited the testimony of the petitioners and Dr.
Boerman, but rejected the claims for asylum and withholding of removal on multiple
grounds. The Board affirmed the decision. The Board concluded that the petitioners
had not identified a particular social group that warranted protection under the statute,
because “the record does not sufficiently reflect that Mexican society would perceive
family members of someone who dated gang members as sufficiently separate or
distinct.”
The Board also found that the petitioners were not eligible for relief because the
source of the alleged harm was not the Mexican government or a group that the
government was unwilling or unable to control. The Board observed that Elizabeth’s
grandmother filed a police report about the home invasion, that the police continued
to investigate the incident, and that the government was “making attempts to control
criminals and drug traffickers.” The Board ruled alternatively that it was reasonable
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for the family to relocate within Mexico, because Dr. Boerman’s testimony did not
establish that the Matazetas were a threat outside of Veracruz. Like the immigration
judge, the Board rejected the family’s claim for relief under the Convention against
Torture because they did not establish that the Mexican government would acquiesce
in torture.
We review the Board’s decision for substantial evidence on the record as a
whole, Menendez-Donis v. Ashcroft, 360 F.3d 915, 918 (8th Cir. 2004), and cannot
disturb its findings of fact “unless any reasonable adjudicator would be compelled to
conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see INS v. Elias-Zacarias, 502
U.S. 478, 481 & n.1, 483-84 (1992). Where the Board adopted the reasoning of the
immigration judge, we consider the two decisions together. Falaja v. Gonzales, 418
F.3d 889, 894 (8th Cir. 2005).
II.
The Attorney General may grant asylum to aliens who are unwilling to return
to their home country because of persecution or a well-founded fear of persecution on
account of “membership in a particular social group.”
See 8 U.S.C.
§§ 1101(a)(42)(A), 1158(b)(1). The petitioners argue that the Board erred by
considering the wrong proffered social group. They also challenge the Board’s
alternative reasons for rejecting their claims for relief.
The petitioners contend that they are members of a “particular social group”
defined as the Lira-Pino family, which consists of twelve persons related to Elizabeth
who lived in two households in Veracruz. One household includes the adult
petitioners and two of the children; the other household consists of the third child,
Karla, and the seven other relatives with whom she resided. The petitioners assert that
“family” is an established particular social group under the asylum statute, and that
the Board erred in ruling that they failed to allege persecution based on a protected
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ground. The government responds that while the petitioners did say during the
administrative process that their proposed social group was “family,” they also
defined the group as “relatives of a person who had a romantic relationship with a
gang member,” and that the Board properly rejected a claim based on that proposed
social group.
The definition of the proffered particular social group in this case has been
something of a moving target. In oral argument before the immigration judge, counsel
for petitioners referred to a particular social group as “family” or “family members.”
A.R. 276, 327, 524. Counsel also explained that the social group was based on
familial relationship to Angelica, who experienced an “actual romantic relationship
with two members of the Zetas,” and to Elizabeth, who had a “perceived relationship
with a Zeta.” A.R. 526. The immigration judge understood the claimed social group
to be “family members of Angelica who dated several Zeta members” or “family
members of women who date gang members.” A.R. 231-32.
In their notice of appeal to the Board, the petitioners claimed a fear of
persecution based on membership in a particular social group defined as “the Peralta
family’s kinship with a family member who is an imputed associate of Los Zetas gang
and persecuted by a rival gang, the Matazetas.” A.R. 168. In their brief to the Board,
the petitioners argued that the immigration judge erred by defining the particular
social group as “family members of women who date gang members,” and urged that
the particular social group claimed was instead “the Pino family,” which they defined
as the two adults and three children who are petitioners in this appeal. A.R. 117-18.
The Board’s decision then addressed the proposed social group of “family members
of someone who dated gang members.” In their brief to this court, the petitioners
assert that the Board was mistaken, and that the proposed social group is the “LiraPino family,” which they now define to include not only the five petitioners, but rather
the two “households” and twelve persons described above.

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As the government appears to acknowledge, a fair reading of the record shows
that the petitioners did proffer to the Board their own specific “family” as a particular
social group underlying their claim for asylum. The Board, however, ruled only that
the group described as “family members of someone who dated gang members” was
not sufficiently separate or distinct to qualify as a particular social group under the
statute.
We cannot tell whether the Board, in rejecting the proposed social group that
it described, meant to reject the petitioners’ specific family as well. Given petitioners’
contention that the Matazetas planned to kill all family and friends associated with the
Zetas, A.R. 95, a decision including one family of a friend of the Zetas as a protected
social group logically might require including all families of all friends of the Zetas.
The Board elsewhere has rejected “family members” as a proposed social group when
threats affect members of numerous families in a society, as opposed to one family
uniquely, see Matter of S-E-G-, 24 I. & N. Dec. 579, 585 & n.2 (B.I.A. 2008), but the
Board did not articulate that rationale here. We do not know whether the Board
rejected petitioners’ family as a particular social group because it was part of a
broader group of families that the Board considered too diffuse or amorphous to
qualify, or whether the Board simply failed to analyze the right question.
The Supreme Court has emphasized that the decision whether a family
constitutes a “particular social group” is a matter that should be decided by the Board
in the first instance. Gonzales v. Thomas, 547 U.S. 183, 186-87 (2006) (per curiam).
The Board did not address the point directly in this case, and we thus cannot resolve
whether the petitioners have identified a particular social group under the statute.
The government contends, however, that if the Board should have considered
petitioners’ family as the proposed social group, then the Board’s ruling should be
upheld on alternative grounds. The Board ruled that petitioners were ineligible for
relief because they cited fear of persecution by private actors, not the Mexican
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government, and did not show that the government was unwilling or unable to control
the private actors. The Board also concluded that it was reasonable for petitioners to
relocate to a different part of Mexico to avoid the feared harm. To prevail, the
petitioners must show that no reasonable adjudicator could have reached those
conclusions.
These alternative grounds concern whether the petitioners established a wellfounded fear of “persecution” within the meaning of the asylum statute. Persecution
is harm inflicted either by the government or by persons or an organization that the
government is unwilling or unable to control. Valioukevitch v. INS, 251 F.3d 747, 749
(8th Cir. 2001). To establish persecution based on the conduct of private actors, an
applicant must show that the government either condones the conduct or is unable to
protect the victims. Menjivar v. Gonzales, 416 F.3d 918, 921 (8th Cir. 2005). Neither
difficulty controlling private behavior nor failure to solve every crime or to act on
every report is sufficient to meet the standard. Id.; see De Castro-Gutierrez v. Holder,
713 F.3d 375, 381 (8th Cir. 2013); Salman v. Holder, 687 F.3d 991, 994-95 (8th Cir.
2012); Suprun v. Gonzales, 442 F.3d 1078, 1081 (8th Cir. 2006); Hasalla v. Ashcroft,
367 F.3d 799, 804 (8th Cir. 2004). Whether a government is “unable” to control a
private actor such that non-governmental actions constitute persecution “is a factual
question that must be resolved based on the record in each case.” Menjivar, 416 F.3d
at 921. Even where an alien shows a well-founded fear of persecution upon return to
his place of origin, moreover, the government can defeat a claim for asylum by
showing that the alien reasonably can relocate within his home country to avoid
persecution. 8 C.F.R. § 208.13(b)(2)(ii), (b)(3).
Petitioners contend that the Mexican government is unwilling or unable to
control the Matazetas gang. They cite the fact that police in Veracruz have not solved
the home invasion or the abduction of two relatives, and that police in the state of
Puebla declined to take action when petitioner Lira Saldana reported the crimes.
These facts are insufficient to compel a conclusion in favor of petitioners. Petitioners
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and their relatives did not report the home invasion or abductions to authorities in
Veracruz until one to two months after the incidents, A.R. 376, yet petitioners
acknowledged that police acted on their complaint and continued to investigate the
matter. A.R. 378-79. That police in Veracruz could not solve a crime committed by
masked men and reported well after the fact does not dictate a finding that the
government is unable to control persecution by the gang. Nor does the decision of
police in the state of Puebla to refer Lira Saldana back to police in the state of
Veracruz, A.R. 451, compel a finding of unwillingness or inability to control. The
offenses were committed in Veracruz, and the Board reasonably could determine that
police in Puebla simply directed petitioner to the correct jurisdiction.
Petitioners rely on the testimony of their expert to demonstrate an inability of
the Mexican government to control the Matazetas. Dr. Boerman testified that “when
you’ve got the kind of uncontrolled carnage that you see going on in Mexico,” it is
“clear that the government simply doesn’t have the capacity and/or [the] will” to
control criminal gangs. A.R. 494. According to Boerman, Mexico’s security minister
recently acknowledged that “40 percent of the country is really no longer under
government control,” and that “when it comes to public security and the capacity to
contain and control these groups who have essentially usurped the state in many
respects . . . , it’s becoming more clear that there’s questions about whether Mexico
is any longer a functioning state.” A.R. 495-96.
The government responds with evidence that the Mexican government has
dedicated substantial resources to controlling criminal organizations. More than 3,000
federal police officers were fired in August 2010 in an effort to purge official
corruption. A.R. 1050. In reaction to the Matazetas, after petitioners left the country,
the Mexican government deployed federal police and military troops to Veracruz,
A.R. 577, 1020, and reported a significant drop in violence in that area. A.R. 577.
This is not to say that the Mexican government has eliminated criminal gangs or that
there is no difficulty in controlling these organizations. But a government that is
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“unable” to control criminal activity cannot mean anything and everything short of a
crime-free society; the standard is more akin to a government that has demonstrated
“complete helplessness” to protect victims of private violence. E.g., Salman, 687 F.3d
at 995; Galina v. INS, 213 F.3d 955, 958 (7th Cir. 2000). Inability to control private
actors is an imprecise concept that leaves room for discretion by the agency. Given
the documented efforts of the Mexican government to combat the private violence at
issue here, we are not prepared to say that no reasonable adjudicator could reach the
Board’s conclusion. See De Castro-Gutierrez, 713 F.3d at 381 (rejecting claim that
Colombian government was unable to control violence inflicted by the Revolutionary
Armed Forces of Colombia).
Important, too, is the Board’s conclusion that it was reasonable for petitioners
to relocate within Mexico to avoid a threat of persecution by the Matazetas. Veracruz
is the locus of gang activity perpetrated by the Zetas and Matazetas. Dr. Boerman, the
petitioners’ expert, characterized the Matazetas as a gang whose role was “to clean the
state of Veracruz from the scourge of the Zetas.” A.R. 496-97. Boerman testified that
the activity of the Matazetas was “concentrate[d] in the state of Veracruz,” and he did
not have “any information about their activity out of Veracruz.” A.R. 512. Although
Boerman adverted to the potential that 40 to 50 percent of Mexico is no longer under
government control, the implication of course is that 50 to 60 percent is under
government control, and Boerman himself suggested that the government has more
control in Mexico City (some 240 miles from Veracruz) and in the states of Oaxaca
and Puebla. A.R. 495, 521-22. This evidence supported the Board’s conclusion that
internal relocation was reasonable and could avoid persecution of petitioners.*

*

The dissent refers to evidence that a Mexican government official advised
petitioners to “get out of there immediately,” and construes the evidence to mean that
petitioners “were ‘under a big risk’” and should “leave the country for their safety.”
This hearsay evidence concerned a telephone call placed by petitioner Lira Saldana’s
father to “a person who works in the government” while petitioner was still in the state
of Veracruz at the city of Xalapa. A.R. 444, 457-58. According to petitioner Lira
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The petitioners cite Boerman’s opinion that relocation would not be viable as
a safe strategy for repatriation in the long term. A.R. 504-05. Boerman’s opinion was
based in part on an assumption that Matazeta gang members had tracked the
petitioners to a point near the United States border and threatened them in an
anonymous telephone call to people who were housing petitioners. A.R. 362. The
immigration judge and the Board, however, reasonably found that the vague hearsay
evidence concerning this telephone call was insufficient to show that relocation was
unlikely to avoid persecution. Boerman also relied on the “intelligence capacity of
these kinds of organizations,” and an assumption that “corrupt officials” would
transmit data about petitioners to the Matazetas. A.R. 505. But on cross-examination,
Boerman admitted that he did not have specific knowledge about connections between
the Matazetas and government officials, and said that little was known about the
specifics of their possible affiliation with other criminal organizations. A.R. 510-12.
We are not convinced that the evidence concerning risks to the petitioners in locations
outside Veracruz was so strong that it compelled a grant of relief by any reasonable
adjudicator.
Because the Board permissibly rejected the petitioners’ claim for asylum, it
follows that petitioners did not meet the higher standard of proof for withholding of
Saldana, the government employee told petitioner’s father that they “could be under
a big risk” and “the best thing” to do was to “get out of there immediately.” A.R. 444.
This evidence does not compel a conclusion that it would be unreasonable for
petitioners to relocate within Mexico if they left the state of Veracruz.
The immigration judge’s finding that petitioner’s brother-in-law has not
suffered harm because he is “kind of in hiding away from Veracruz” is not
inconsistent with the Board’s finding that petitioners reasonably could relocate safely
within Mexico if they are away from Veracruz. Elizabeth testified that her brother
was “kind of hiding far away,” and when asked if he was “hiding,” she said, “Yes.
Like, like away from Veracruz.” A.R. 371. Given that Elizabeth said the brother
“works in construction, like placing electric cables for lighting – lighting or in
construction on the roads,” id., the Board reasonably could understand the testimony
to equate “kind of hiding” with living away from Veracruz.
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removal. Ismail v. Ashcroft, 396 F.3d 970, 975 (8th Cir. 2005). Substantial evidence
also supports the Board’s denial of relief under the Convention Against Torture. The
Convention provides for relief if it is more likely than not that the petitioners would
be subjected to torture if returned to Mexico, 8 C.F.R. § 208.16(c)(2), and that such
torture would be inflicted “with the consent or acquiescence of a public official.” 8
C.F.R. § 208.18(a)(1). “Acquiescence” requires prior awareness of the torture and
breach of a legal responsibility to intervene. 8 C.F.R. § 208.18(a)(7); Garcia v.
Holder, 746 F.3d 869, 873-74 (8th Cir. 2014). Evidence concerning the Mexican
government’s efforts to combat criminal organizations in Veracruz and elsewhere was
sufficient to support the Board’s finding that the government was not likely to
acquiesce in any torture by the Matazetas.
*

*

*

For these reasons, the petition for review is denied.
MURPHY, Circuit Judge, dissenting.
The record indicates that Mexican authorities may be “unwilling and unable to
control” the Matazetas gang. See Menjivar v. Gonzales, 416 F.3d 918, 921 (8th Cir.
2005) (asylum applicant must show government unwilling or unable to control
nongovernmental persecutors). Although one online news article reported that the
Mexican government had deployed police and troops to Veracruz to combat violence
by the Matazetas, the same article stated that a one month reduced murder rate in 2012
may have been a mere "blip" since "it's not uncommon for a couple of relative calm
months to interrupt an area's ongoing descent." The record also includes petitioner
Israel's testimony before the immigration judge that while he and his family were
hiding in Xalapa, a city about 100 kilometers from their home in Veracruz, a Mexican
government employee had advised his father that petitioners should "get out of there
immediately" because they were "under a big risk."

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This record does not demonstrate that internal relocation in Mexico presents a
"reasonable" alternative for petitioners. See Hagi-Salad v. Ashcroft, 359 F.3d 1044,
1047–49 (8th Cir. 2004) (explaining that relocation must be reasonable under 8 C.F.R.
§ 208.13(b)(3)). There is evidence here that a Mexican official advised petitioners to
leave the country for their safety. The immigration judge also found Israel's testimony
credible that the only reason his brother in law had not suffered harm in Mexico was
"because he is kind of in hiding." If petitioners were to attempt to relocate in Mexico,
they may have to hide to avoid persecution like the brother in law experienced. See
N.L.A. v. Holder, 744 F.3d 425, 442 (7th Cir. 2014) (petitioner could not safely
relocate since the reason her sister remained safe in Colombia was because she lived
in hiding, and "[i]t is an error of law to assume that an applicant cannot be entitled to
asylum if she has demonstrated the ability to escape persecution . . . by trying to
remain undetected"); Essohou v. Gonzales, 471 F.3d 518, 522 (4th Cir. 2006) (time
spent hiding in a village did not support the board's finding that the applicant could
reasonably relocate internally in Congo).
For these reasons I dissent. The petition for review should be granted and the
petitioners' asylum claim should be remanded for full consideration.
______________________________

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