Heidy Menjivar v. Merrick B. Garland ( 2022 )

United States Court of Appeals
For the Eighth Circuit
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No. 21-1624
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Heidi Rivera Menjivar
Petitioner
v.
Merrick B. Garland, Attorney General of the United States
Respondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: November 19, 2021
Filed: March 3, 2022
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Before COLLOTON, GRASZ, and KOBES, Circuit Judges.
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KOBES, Circuit Judge.
Heidi Rivera Menjivar, a citizen of El Salvador, entered the United States and
applied for asylum, withholding of removal, and protection under the Convention
Against Torture. An Immigration Judge denied her requests, and the Board of
Immigration Appeals affirmed. We deny her petition for review.
I.
Rivera Menjivar grew up in El Salvador. When she was 10 years old, her
family started attending an evangelical church. Rivera Menjivar was increasingly
involved with the church and eventually became a youth leader. She and other youth
group members, including her sister, preached to young people in the community.
One of their missions was to help people leave gangs. Because of these activities,
the pastor of the church received a letter from someone warning him to protect the
youth group.
Rivera Menjivar left El Salvador, fearing reprisals from the gang for her work
as a church youth leader. When she was 17 years old, she came to the United States
and filed an application for asylum, withholding of removal, and protection under
the Convention Against Torture (CAT).
Rivera Menjivar compiled documentary evidence for her hearing, including
affidavits from her sister and pastor, and reports about the conditions in El Salvador.
The IJ received this evidence late and took about 45 minutes to review it. After
considering this evidence and hearing Rivera Menjivar’s testimony, the IJ denied
her application for asylum, finding that she failed to establish a well-founded fear of
future persecution. Because the burden of proof for withholding of removal is higher
than that required for asylum, the IJ summarily denied this relief as well. Finally,
the IJ denied Rivera Menjivar’s request for CAT protection, holding that she failed
to show that she was ever personally harmed or threatened.
Rivera Menjivar appealed the IJ’s decision, claiming that she was denied due
process because the IJ failed to fully consider her evidence. She also appealed the
denial of her applications, arguing that she successfully established a fear of future
persecution based on her religious activities and gender, and that she proved that the
government acquiesces to gang activity. The BIA affirmed the IJ’s decision in total
and held that there was no due process violation. Rivera Menjivar seeks judicial
review of that decision, arguing that the BIA erred by: (1) denying asylum and
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withholding of removal; (2) denying CAT protection; and (3) finding no due process
violation.
II.
In reviewing immigration decisions, “we ordinarily review only the BIA’s
decision.” Etenyi v. Lynch, 799 F.3d 1003, 1006 (8th Cir. 2015) (citation omitted).
But “we also review the IJ’s decision as part of the final agency action if the BIA
adopted the findings or the reasoning of the IJ.” Id. (citation omitted). “We review
the agency determination that an alien is not eligible for asylum, withholding of
removal, or relief under the Convention Against Torture using the deferential
substantial evidence standard.” Degbe v. Sessions, 899 F.3d 651, 655 (8th Cir. 2018)
(citation omitted). Under this standard, we will uphold the denial of relief unless
“the evidence is so compelling that no reasonable fact finder could fail to find the
requisite fear of persecution.” Uzodinma v. Barr, 951 F.3d 960, 964 (8th Cir. 2020),
cert. denied sub nom. Uzodinma v. Garland, 141 S. Ct. 2511 (2021) (citation
omitted) (cleaned up).
A.
Rivera Menjivar argues that the BIA erred in denying her application for
asylum. To qualify for asylum, an applicant must show either past persecution or a
well-founded fear of future persecution because of race, religion, nationality,
political opinion, or membership in a particular social group. 8 U.S.C.
§ 1101(a)(42). Rivera Menjivar admits she hasn’t faced any past persecution, but
argues that she has a well-founded fear of future persecution. A well-founded fear
of future persecution must be “both subjectively genuine and objectively
reasonable.” Galloso v. Barr, 954 F.3d 1189, 1192 (8th Cir. 2020) (citation omitted).
“To be objectively reasonable, an applicant’s fear must have a basis in reality and
be neither irrational nor so speculative or general as to lack credibility.” Uzodinma,
951 F.3d at 964.
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The BIA found that because Rivera Menjivar could not show a particularized
fear, she failed to prove that her fear of future persecution was objectively
reasonable. Instead, she only presented evidence of general violence. Rivera
Menjivar argues that the affidavits from her sister and her pastor support her
particularized fear based on her religious activities.
The affidavits Rivera Menjivar relies on are too general to establish a credible
fear. The affidavit from her sister states that “[s]ometimes people in our youth group
will have problems with gang members—either people who used to be involved in
the gangs or who were friends with gang members . . . they often face aggressive
threats or even violence at the hands of those who they have turned away from.” It
also says that Rivera Menjivar’s friend left a gang, and that he eventually had to live
in a shelter because the gang was angry with him. It does not discuss any violence
or threats directed at Rivera Menjivar. The affidavit from her pastor is similarly
insufficientit just states that there have been threats and acts of violence against
the youth group. While these statements show some evidence of a fear of future
persecution, they are not “so compelling that no reasonable fact finder could fail to
find” a fear of future persecution. Uzodinma, 951 F.3d at 964 (citation omitted).
Rivera Menjivar also argues that the IJ erred by focusing on the fact that her
family members remain safely in El Salvador. She claims that her family members
are not similarly situated in their religious activities. But her sister is a member of
the same youth group and has never been harmed or threatened because of her
religious activities. And, as the BIA pointed out, her family’s safety in El Salvador
is relevant to whether her fear of future harm is objectively reasonable. See Gomez-
Garcia v. Sessions, 861 F.3d 730, 735 (8th Cir. 2017).
Because substantial evidence supports the BIA’s denial of asylum, we deny
Rivera Menjivar’s petition for review. And because withholding of removal has a
higher burden of proof than asylum, we also uphold the denial of withholding of
removal. See Osonowo v. Mukasey, 521 F.3d 922, 926 (8th Cir. 2008) (“Eligibility
for withholding of removal requires proof of a clear probability that the alien’s life
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or freedom would be threatened . . . which is a more demanding standard than the
well-founded fear of persecution standard for asylum.”).
B.
Rivera Menjivar also claims that the BIA erred in denying her application for
CAT protection. To qualify, she must show that it’s more likely than not that she
will be tortured if removed. 8 C.F.R. § 1208.16(c)(2). The torture must either be
inflicted by a public official or inflicted with the consent or acquiescence of a public
official. 8 C.F.R. § 1208.18(a)(1). “A government does not acquiesce in the torture
of its citizens merely because it is aware of torture but powerless to stop it, but it
does cross the line into acquiescence when it shows willful blindness toward the
torture of citizens by third parties.” Moallin v. Barr, 980 F.3d 1207, 1210 (8th Cir.
2020) (citation omitted).
The BIA held that Rivera Menjivar could not establish a likelihood of being
tortured or government acquiescence. We agree. Rivera Menjivar’s inability to
show a credible fear of future harm for purposes of asylum and withholding of
removal undermines her claim for CAT protection, because “a likelihood of torture
requires more than a well-founded fear of persecution.” Khrystotodorov v. Mukasey,
551 F.3d 775, 782 (8th Cir. 2008). Plus, she failed to show that the Salvadoran
government is willfully blind to the torture of its citizens. The fact that a government
“struggles to control gang activity is insufficient to compel a finding of willful
blindness toward the torture of citizens by third parties, or a finding of government
acquiescence in their criminal activities.” Cambara-Cambara v. Lynch, 837 F.3d
822, 827 (8th Cir. 2016) (citation omitted). Because substantial evidence supports
the BIA’s denial of CAT protection, we deny Rivera Menjivar’s petition for review.
C.
Finally, Rivera Menjivar argues that the IJ violated her due process rights by
failing to fully consider her evidence. To succeed on this claim, she must show: (1)
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a fundamental procedural error; and (2) prejudice, such that the outcome of the
proceeding may well have been different without the error. Cardoza Salazar v. Barr,
932 F.3d 704, 709 (8th Cir. 2019). Because this is a purely legal issue, we review it
de novo. Molina v. Whitaker, 910 F.3d 1056, 1060 (8th Cir. 2018).
Rivera Menjivar argues that the IJ failed to properly consider her documentary
evidence because he only spent 45 minutes reading it. As a result, she claims that
the IJ overlooked evidence corroborating her fear of future harm. We disagree.
Although the IJ received the evidence late, he still reviewed and considered it. In
fact, his decision discusses the very evidence Rivera Menjivar claims was
overlooked.
Even if there was a fundamental procedural error, Rivera Menjivar has failed
to show prejudice. She claims that the IJ failed to properly consider the affidavits
from her sister and her pastor. But, as discussed above, the affidavits don’t support
a particularized fear of future harm to herthey only mention general threats against
church members. The outcome of the proceeding would have been the same,
regardless of how much time the IJ spent reviewing or discussing the affidavits.
Because Rivera Menjivar failed to prove a fundamental procedural error and
resulting prejudice, we affirm the BIA’s finding that her due process rights were not
violated.
III.
The petition for review is denied.
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