Alejandro Gutierrez-Vidal v. Eric H. Holder, Jr.
709 F.3d 728
| 8th Cir. | 2013Background
- Gutierrez-Vidal, a Peruvian citizen, entered the U.S. illegally in 2003 and fears persecution on political grounds if returned.
- He led a group (Señor de los Milagros) with ~400 members providing community services; he opposed the Shining Path.
- In 1999 he was attacked twice and his associate Chavez-Chacon was killed; police investigations occurred but no convictions.
- He received threats, resigned from the group in 2000, and relocated temporarily to Panama; his family later spread geographically.
- He applied for asylum, withholding of removal, and CAT relief; the IJ denied relief, BIA affirmed, and Gutierrez-Vidal petitions for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Peruvian authorities were unable or unwilling to control the persecutors | Gutierrez-Vidal asserts government inability to protect. | Government is able and willing to control; evidence shows investigations and protection orders. | No; government unable/unwilling not shown; not persecuted. |
| Whether past persecution is shown by harm tied to political opinion | Harm stemmed from political involvement and opposition to Shining Path. | Harm did not rise to persecution; private actors without government imprimatur. | No past persecution established. |
| Whether a well-founded fear of future persecution is shown | Future risk persists due to Shining Path and private threats. | Future harm not sufficiently demonstrated; relocation within Peru possible. | No well-founded fear established. |
| Whether the evidence supports withholding of removal given asylum failure | If asylum fails, withholding should be considered. | Higher standard required; asylum failure defeats withholding. | Withholding denied alongside asylum denial. |
| What is the proper scope of judicial review of BIA/IJ findings | Appeal should scrutinize IJ findings adopted by BIA. | Review limited to final agency action with adopted findings. | Court reviews final agency action and IJ findings adopted by BIA. |
Key Cases Cited
- Matul-Hernandez v. Holder, 685 F.3d 707 (8th Cir. 2012) (substantial evidence standard; review of asylum determinations)
- Fofana v. Holder, 704 F.3d 554 (8th Cir. 2013) (agency findings are conclusive unless reason to dispute)
- Suprun v. Gonzales, 442 F.3d 1078 (8th Cir. 2006) (well-founded fear requires credible, direct, specific evidence)
- Khilan v. Holder, 557 F.3d 583 (8th Cir. 2009) (government imprimatur not required if record shows conduct by private actors with state protection or complicity?)
- Guillen-Hernandez v. Holder, 592 F.3d 883 (8th Cir. 2010) (without government imprimatur, asylum claims based on private conduct fail)
- Menjivar v. Gonzales, 416 F.3d 918 (8th Cir. 2005) (whether government is unable or unwilling to control private actors is a fact-based inquiry)
- Kimumwe v. Gonzales, 431 F.3d 319 (8th Cir. 2005) (private actor harm requires government inability or unwillingness to control)
- Salman v. Holder, 687 F.3d 991 (8th Cir. 2012) (private violence alone not persecution absent government condonation or helplessness)