Cisneros-Diaz v. Holder, Jr. , 415 F. App'x 940 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
March 18, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
NORMAN ADONAY CISNEROS-
DIAZ,
Petitioner,
v. No. 10-9533
(Petition for Review)
ERIC H. HOLDER, JR., Attorney
General of the United States,
Respondent.
ORDER AND JUDGMENT *
Before HARTZ, BRORBY, and TYMKOVICH, Circuit Judges.
An immigration judge (IJ) found Norman Adonay Cisneros-Diaz removable
and denied his application for asylum. The Board of Immigration Appeals (BIA)
dismissed his appeal of the IJ’s decision and he petitions for review. We have
jurisdiction under 8 U.S.C. § 1252(a) and deny the petition.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I. BACKGROUND
Mr. Cisneros-Diaz was born in Zacatecoluca, El Salvador. In 2003 his
mother came to the United States, and on April 11, 2006, he arrived in the United
States with his two brothers by walking across the border. He testified as follows
before the IJ: He left El Salvador because he was afraid of the Mara Salvatrucha
gang. About a week and a half before he left, four members of the gang had
threatened that if he did not join them, they could kill him. He refused to join and
walked away. The gang members did not take any action against him afterwards
because he soon left for the United States. Also, two days before he left El
Salvador, the gang killed his best friend, whom they had confused with a member
of another gang. Mr. Cisneros-Diaz did not ask for help from the police after
either incident, because he thought “the police [in El Salvador are] very corrupt”
and would not have helped him, and because he feared that the gang would try to
kill him if he went to the police. Cert. Admin. R. at 117.
Mr. Cisneros-Diaz was charged with being subject to removal as an alien
present in the United States without being admitted or paroled. At a proceeding
before the IJ on February 6, 2007, he admitted removability but requested relief in
the form of asylum. After hearing evidence on June 26, 2008, the IJ denied his
application for asylum and ordered him removed to El Salvador. The BIA
dismissed his appeal.
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II. DISCUSSION
A single member of the BIA issued a nonsummary decision dismissing
Mr. Cisneros-Diaz’s appeal. We review the decision based on the grounds
articulated by the BIA decision and grounds raised in the IJ decision that were
relied upon by the BIA. See Sidabutar v. Gonzales, 503 F.3d 1116, 1123 (10th
Cir. 2007). We review purely legal questions de novo, Hayrapetyan v. Mukasey,
534 F.3d 1330, 1335 (10th Cir. 2008), but “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). Whether an alien has demonstrated
persecution is a question of fact. See Hayrapetyan, 534 F.3d at 1335.
To be eligible for a discretionary grant of asylum, Mr. Cisneros-Diaz must
first establish that he is a refugee. See 8 U.S.C. § 1158(b)(1). The Immigration
and Nationality Act (INA) defines refugee as:
any person who is outside any country of such person’s
nationality . . . and who is unable or unwilling to return to, and 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). Mr. Cisneros-Diaz does not contend that he has been
persecuted in the past, but asserts that he has a “well-founded fear” that he will be
persecuted if he returns to El Salvador because of his membership in a particular
social group. His brief in this court states that the BIA accurately described “the
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particular social group to which [he] claims membership [as] ‘young men who
have resisted criminal gang recruitment [in El Salvador].’” Aplt. Br. at 13 n.6
(parenthesis omitted).
“[A] finding of persecution requires the infliction of suffering or harm upon
those who differ (in race, religion, or political opinion) in a way regarded as
offensive and must entail more than just restrictions or threats to life and liberty.
Such persecution may be inflicted by the government itself, or by a
non-governmental group that the government is unwilling or unable to control.”
Wiransane v. Ashcroft, 366 F.3d 889, 893 (10th Cir. 2004) (citation and internal
quotation marks omitted). If the persecution is by a nongovernmental group, the
alien has the burden of establishing that the government is unwilling or unable to
control the group. See Bartesaghi-Lay v. INS, 9 F.3d 819, 822 (10th Cir. 1993);
8 C.F.R. § 1208.13(a) (“The burden of proof is on the applicant for asylum to
establish that he or she is a refugee[.]”).
To be a well-founded fear of future persecution, the fear
must be both subjectively genuine and objectively reasonable. An
asylum applicant has an objectively well-founded fear of persecution
if (1) she may be singled out for persecution upon returning to her
country of origin, or (2) there is a pattern or practice in that country
of persecution of a group of persons similarly situated to the
applicant on account of race, religion, nationality, membership in a
particular social group, or political opinion, and the applicant
belongs to and identifies with that group.
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Tulengkey v. Gonzales, 425 F.3d 1277, 1281 (10th Cir. 2005) (citation, brackets,
ellipses, and internal quotation marks omitted). For asylum purposes, “it need not
be shown that the situation will probably result in persecution, but it is enough
that persecution is a reasonable possibility.” Hayrapetyan, 534 F.3d at 1335(internal quotation marks omitted).
Mr. Cisneros-Diaz argues both that he may be singled out for persecution
upon his return and that there is a pattern of persecution of people in his claimed
social group. The BIA affirmed the IJ’s denial of relief on two grounds. First,
the BIA said that Mr. Cisneros-Diaz had “failed to establish that young men who
have resisted criminal gang recruitment qualifies as a cognizable social group”
within the meaning of the INA. Cert. Admin. R. at 4. Second, the BIA endorsed
the IJ’s finding that Mr. Cisneros-Diaz’s “testimony did not show that the
government is unwilling or unable to control gang violence.” Id. at 58. The IJ
observed that Mr. Cisneros-Diaz did not attempt to enlist the help of the police in
protecting himself and so lacked firsthand knowledge of what protection the
police could offer; and the IJ stated that the record showed that the El Salvadoran
government “is making a reasonable attempt” to protect its citizens. Id. at 59.
We affirm on the second ground. We cannot say that on this record “any
reasonable adjudicator would be compelled to conclude . . . contrary” to the
findings of the IJ affirmed by the BIA. 8 U.S.C. § 1252(b)(4)(B). We need not
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address the first ground because Mr. Cisneros-Diaz would have to prevail on both
grounds to obtain relief in this court.
Mr. Cisneros-Diaz notes that in the agency proceeding he said that he was
afraid that “the [Salvadoran] authorities have been infiltrated and co-opted by
gang members” and that he believes that those authorities “are simply incapable
of protecting his particular social group.” Reply Br. at 16–17. He argues:
Neither the Judge, the Board, nor the government have ever
addressed whether the efforts they refer to are actually sufficient to
afford targeted individuals some semblance of protection. Though
reports and articles in the record clearly demonstrate that the
Salvadoran government is just overmatched, it is most likely beyond
the purview of this Court to make such a finding when neither of the
tribunals below even considered the question in its proper framing.
Id. at 17. His opening brief asserts:
The record includes clear and consistent testimony, an expert
affidavit, comprehensive reports from non-profit human rights
organizations, and articles from the international press[, which]
provide[] a more comprehensive picture of the human rights situation
(than the single State Department report relied upon by the Judge),
reporting in detail not only on the government’s efforts, but on the
utterly inadequate results of those efforts.
Aplt. Br. at 30 (footnote omitted) .
We are not persuaded. Mr. Cisneros-Diaz bore the evidentiary burden to
establish that the government is unwilling or unable to protect him. See
Bartesaghi-Lay, 9 F.3d at 822. On this record, it was reasonable for the IJ and
BIA to determine that he had not satisfied that burden. As already pointed out, he
provided no first-hand information to support his fear. And the IJ reasonably read
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the authoritative reports on El Salvador as likewise not supporting it. In
particular, the IJ referred to a State Department issue paper on youth gangs in El
Salvador, which states:
[T]he Salvadoran government does not have a policy or practice of
refusing assistance to persons who receive threats or are otherwise
victims of gang violence. Additionally, the U.S. Embassy in San
Salvador has no information to suggest that persons have been denied
assistance from police authorities in relation to complaints they have
made relating to gang violence or threats from gang members. . . .
The Salvadoran government treats gang violence as a high priority,
has expended considerable sums to address the issue, and has
received technical assistance from the U.S. and other countries to
improve its law enforcement capabilities.
Cert. Admin. R. at 133–34. The report later states that the “Salvadoran
government’s strong-hand law enforcement policy may be having a noticeable
effect on gang behavior, and at least in the short term, in controlling gang
violence.” Id. at 139. A reasonable adjudicator presented with the evidence at
Mr. Cisneros-Diaz’s hearing would not be compelled to reach a conclusion
contrary to the IJ’s.
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III. CONCLUSION
We DENY the petition for review and GRANT the motion to proceed in
forma pauperis.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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