438 F. App'x 532
8th Cir.2011Background
- Valiente-Cifuentes and his Guatemalan son seek asylum and withholding of removal in a removal proceeding after entering the U.S. without inspection.
- The IJ denied relief, and the BIA affirmed, deeming no past persecution or well-founded fear of future persecution.
- Valiente testified he was a Guatemalan army recruiter (1985–1990) in San Marcos and received five death threats, which were unsigned.
- He moved within Guatemala after threats, relocating to Guatemala City for about eighteen months, then left the country for the United States; no threats occurred after he left San Marcos.
- The agency found Valiente failed to identify the threateners, connect threats to a protected ground, or show a future fear is objectively reasonable, and noted the long gap since departure.
- This court reviews the agency’s asylum/withholding determinations for substantial evidence and upholds the denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Valiente established past persecution based on threats | Valiente relied on repeated threats and harassment as persecution. | The threats lacked identity, target, and connection to government control; not persecution. | No substantial evidence of past persecution. |
| Whether there is a well-founded fear of future persecution | Credible fear from threats and past danger in Guatemala justify future fear. | Future fear not objectively reasonable given lack of identity of attackers and relocation within Guatemala. | No well-founded fear; fear not objectively reasonable. |
| Whether the absence of a nexus to a protected ground defeats asylum | Threats tied to his military service constitute a political opinion or protected group membership. | No demonstrated nexus between threats and any protected ground. | No nexus established; asylum denied. |
Key Cases Cited
- Setiadi v. Gonzalez, 437 F.3d 710 (8th Cir. 2006) (past persecution normally excludes unfulfilled threats absent confrontation)
- Flores-Calderon v. Gonzales, 472 F.3d 1040 (8th Cir. 2007) (identity of attackers or government control critical to persecution analysis)
- Menendez-Donis v. Ashcroft, 360 F.3d 915 (8th Cir. 2004) (lack of clear evidence on attackers or motives supports denial)
- Cubillos v. Holder, 565 F.3d 1054 (8th Cir. 2009) (burden to show persecution by government or unable to be controlled)
- Hassan v. Ashcroft, 388 F.3d 661 (8th Cir. 2004) (credible evidence required to show subjective and objective fear)
- Melecio-Saquil v. Ashcroft, 337 F.3d 983 (8th Cir. 2003) (relocation within country can defeat well-founded fear)
- Cao v. Gonzales, 442 F.3d 657 (8th Cir. 2006) (loss of asylum eligibility when not proven; withholding same standard)
- Khrystotodorov v. Mukasey, 551 F.3d 775 (8th Cir. 2008) (extremely deferential standard for agency factual findings)