Lead Opinion
ORDER AND AMENDED OPINION
ORDER
The opinion and dissent filed on September 18, 2013 are amended. The superseding amended opinion and dissent will be filed concurrently with this order.
With these amendments, a majority of the panel has voted to deny petitioner’s petition for panel rehearing and her petition for rehearing en banc. Judge Paez voted to grant the petitions. The petition for rehearing en banc was circulated to the judges of the court, and no vote for rehearing en banc was taken. The petition for rehearing and the petition for rehearing en banc are DENIED. No further petitions for rehearing or petitions for rehearing en banc will be entertained.
OPINION
Lydia Garcia-Milian, a native and citizen of Guatemala, petitions for review of the denial of her applications for asylum, withholding of removal, and relief under the Convention Against Torture (CAT) by the Board of Immigration Appeals (BIA). Because substantial evidence supports the BIA’s determinations that Garcia-Milian was not persecuted on account of an imputed political opinion and that the attack she suffered did not occur with the acquiescence of the Guatemalan government, we deny her petition.
I
Garcia-Milian entered the United States illegally in June 2003. After the government initiated removal proceedings, she conceded removability and, on May 3, 2004, applied for asylum, withholding of removal, and CAT relief. See 8 U.S.C. §§ 1158,1231(b)(3); 8 C.F.R. § 208.18.
Around 2000, Garcia-Milian noticed two masked men following her when she was out shopping or going to school. This occurred around twenty times. Garcia-Milian did not report these incidents to the police because she did not think that the police would help her. Subsequently, in May 2003, the two masked men came to her home at night and demanded that she open the door. When she did so, they told her that they were looking for Noe Garcia because he had been in a guerilla group and ordered her to tell them his current whereabouts. Although she did not know where he lived, she lied and told them he was living in San Miguel (a non-existent city). The men subsequently beat and raped her. Before leaving, they told Garcia-Milian that if they could not find Garcia, they would return and kill her.
After the men left, Garcia-Milian took a taxi to her mother’s home in another town. Garcia-Milian did not seek treatment at a hospital because she was afraid that the men would find out and kill her. Two days later, she reported the incident to the Sa-lama police, who told her they could not investigate the incident because she could not identify her assailants. Fearing for her life, Garcia-Milian left Guatemala for Mexico, and then paid a “coyote” to smuggle her across the border into the United States.
In addition to testifying at the proceeding, Garcia-Milian submitted a State Department report on Guatemala titled Country Reports on Human Rights Practices-2006, and four Amnesty International reports. The reports indicate that Guatemalan police had minimal training or capacity for investigating or assisting victims of sexual crimes, and that the Guatemalan government had been ineffective in investigating violence against women and homicides generally, due to weaknesses throughout the criminal justice and law enforcement system.
The IJ denied Garcia-Milian’s applications for asylum, withholding of removal, and CAT relief. The BIA affirmed the IJ’s decision. It noted that “[wjhile the respondent appears to have been the victim of criminal acts on the several occasions described, she has not established a nexus between any incident and a protected ground under the Act.” Based on its review of the record, the BIA concluded that there was “no evidence the respondent ever expressed a political opinion and no evidence to suggest that she was harmed based on any real or imputed political opinion.” As a result, the BIA denied Garcia-Milian’s asylum and withholding of removal claims. The BIA also rejected Garcia-Milian’s CAT claim. It held that the record did not establish that “it is more likely than not that the respondent will face torture by or with the
II
We have jurisdiction under 8 U.S.C. § 1252 to review final orders of removal. Li v. Holder,
A
We begin by considering Garcia-Milian’s challenge to the BIA’s denial of her asylum application.
Applicants for asylum bear the burden of proving eligibility for asylum. 8 C.F.R. § 208.13(a). In order to carry this burden, an applicant must first establish “refugee” status, 8 U.S.C. § 1158(b)(1) (2000), by proving past persecution or well-founded fear of future persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A) (2000).
Here, Gareia-Milian based her asylum claim on the ground that the masked men persecuted her on account of her political opinion. Although she does not claim to have any political opinion of her own, an applicant “can also establish persecution on account of imputed political opinion — that is, on account of a political opinion attributed to him by his persecutors.” Navas v. I.N.S.,
By contrast, we have upheld the BIA’s denial of an asylum application based on imputed political opinion where there was neither direct evidence of the persecutor’s viewpoint, nor indirect evidence sufficient to compel a conclusion contrary to that reached by the BIA. In Molino-Estrada, for example, the BIA denied the alien’s asylum claim because he failed to show persecution on account of. a protected ground. Molina-Estrada v. INS,
As in Molino-Estrada, the record here does not compel the conclusion that the masked men imputed a political opinion to Garcia-Milian. First, there is no direct evidence that they did so. The masked men did not make any statements attributing political views to Garcia-Milian or indicating that they were retaliating against her due to the views of her ex-husband. Nor did the masked men themselves express any political views. Garcia-Milian provided no evidence as to the political opinions of the masked men; there is no evidence that they were part of a political organization or that they opposed Noe Garcia’s political position (if any). Cf. Si-laya,
Because Garcia-Milian did not present evidence of imputed political opinion that “would compel any reasonable factfinder to conclude that Petitioner was subject to persecution because of imputed political beliefs,” Molina-Estrada,
B
We turn to Garcia-Milian’s claim that the BIA erred in denying her CAT claim. To qualify for CAT relief, an alien must establish that “it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 208.16(c)(2); see also Nuru v. Gonzales,
In addressing the state-action prong of her CAT claim, Garcia-Milian points to her testimony that the police were unwilling to investigate the attack by
Public officials acquiesce in torture if, “prior to the activity constituting torture,” the officials: (1) have awareness of the activity (or consciously close their eyes to the fact it is going on); and (2) breach their legal responsibility to intervene to prevent the activity because they are unable or unwilling to oppose it. Ornelas-Chavez v. Gonzales,
Evidence that the police were aware of a particular crime, but failed to bring the perpetrators to justice, is not in itself sufficient to establish acquiescence in the crime. Instead, there must be evidence that the police are unable or unwilling to oppose the crime. Otherwise, “a person could obtain CAT relief merely because he was attacked by a gang of neighborhood thugs whom the police were unable to apprehend.” Reyes-Sanchez,
Nor does evidence that a government has been generally ineffective in preventing or investigating criminal activities raise an inference that public officials are likely to acquiesce in torture, absent evidence of corruption or other inability or unwillingness to oppose criminal organizations. In Tamarar-Gomez, for example, the court rejected the petitioner’s claim that the Co-lumbian government acquiesced in attacks by a narco-terrorist organization, even though the police informed the petitioner that it lacked the resources to protect individual families, and the record contained significant evidence that the Columbian government was unable to prevent the terrorist group’s crimes.
In this case, the record shows that the Guatemalan government and the police have taken steps to combat violence against women including imposing hefty penalties for the crime of rape, establishing a Special Prosecutor for Crimes against Women, establishing a Special Unit for Sex Crimes, and prosecuting crimes against women. Even though, as a practical matter, these steps have not achieved the desired goals of resolving crimes and protecting citizens, they support the BIA’s determination that the government is not wilfully blind to attacks on women in Guatemala. See Tamara-Gomez,
PETITION FOR REVIEW DENIED.
Notes
. We use the term “common law husband’’ because Garcia-Milian testified that Noe was her husband but that they were never formally married. The record does not reveal the exact legal status of their relationship.
. Under the REAL ID Act of 2005, an applicant for asylum must establish that a protected ground "was or will be at least one central reason for persecuting the applicant,” in addition to proving that persecution was or will be "on account of” a protected ground. 8 U.S.C. § 1158(b)(l)(B)(i) (2006); Parussimova v. Mukasey,
. In the circumstances of this case, the fact that Garcia-Milian had not associated with Noe Garcia in over a decade, and that the masked men had followed her long enough to learn this fact, weakens any inference that the masked men were retaliating against her because of her association with Garcia or that they imputed Garcia's political opinion to her. Cf. Belayneh v. I.N.S.,
. For the same reasons, we reject Garcia-Milian's challenge to the BIA’s denial of her claim for withholding of removal. An applicant who fails to satisfy the standard of proof for asylum also fails to satisfy the more stringent standard for withholding of removal. Farah v. Ashcroft,
. Because we decide on this basis, we do not address whether the record compels the conclusion that it would be more likely than not that Gareia-Milian would be tortured upon her return to Guatemala.
Concurrence Opinion
concurring in part and dissenting in part:
Although I agree with the majority that the Board of Immigration Appeals (“BIA”) did not err in denying Garcia-Milian’s CAT claim, I respectfully dissent from the majority’s decision to deny her petition with respect to her claims for asylum and withholding of removal. In my view, the evidence in the record compels the conclusion that Gareia-Milian was attacked and raped because of her ex-husband’s political opinions. I would therefore grant the petition and remand to the BIA for further proceedings on Garcia-Milian’s asylum and withholding of removal claims.
I.
The majority effectively requires Garcia-Milian to produce direct evidence of the reasons for her persecution. First, the majority holds that the record “does not compel the conclusion that the masked men imputed a political opinion” to Gareia-Milian because the attackers “did not make any statements attributing political views to Gareia-Milian.” Maj. Op. at 1032. But we have never required asylum appli
The majority also provides several related reasons for concluding that Garcia-Mili-an has failed to establish a nexus: her attackers did not “indicat[e] that they were retaliating against her due to the views of her ex-husband,” and there is an absence of evidence of the masked men’s political views. Maj. Op. at 1032. Here, again, the majority errs by requiring Garcia-Milian to provide direct evidence of motive. We have explicitly held that an applicant is not required to present evidence of her attackers’ own stated reasons for attacking her. Garcia-Martinez v. Ashcroft,
II.
The majority next recites its duty to consider circumstantial evidence, but fails to actually do so. First, the majority states that the “single piece of indirect evidence” in the record is “the masked men’s statement that they were looking for [Garcia-Milian’s ex-husband] because he had been in a guerrilla group,” and concludes in the amended opinion that this is “insufficient to compel a conclusion contrary to that reached by the BIA.” Maj. Op. at 1032. I disagree. The masked men’s statement is not the “single” piece of indirect evidence in support of Garcia-Mi-lian’s claims. Consider the facts of the case: at 11:00 p.m., the masked men began “hitting the door very loudly,” demanding that Garcia-Milian let them into her house. Thinking that they were the police, Garcia-Milian opened the door. The men entered and told Garcia-Milian they were looking for her ex-husband because he was a member of a guerrilla organization. The following events then occurred, as credibly described by Garcia-Milian:
They asked me where my husband was, and I don’t know where he is. I told them I didn’t know because it had been more than 15 years since we were separated; that I didn’t know anything about him. They said I did know. They took me inside, and they put a weapon on my chest, and they kept telling me to tell them, to tell them, and I said I didn’t know anything. They insisted that ... if I wouldn’t tell them, they would kill me. After they threw me on the floor, and when I felt they were going to kill me, I mentioned a place, but I knew he wasn’t there so they would leave and they wouldn’t kill me. They began to hit me. After they hit me a lot, they kicked me very hard with their shoe. Then they raped me. One was holding a weapon on my head, and the other one was laughing. Then the other one raped me, began to rape me. I was unconscious. I couldn’t take it any longer.
The record is thus replete with circumstantial evidence of motive beyond the attackers’ own statements — -namely, the record shows that the attackers knew who Garcia-Milian was, knew of her association with her ex-husband, knew where she lived, visited her at her private home late at night, and violently hit, kicked, and took turns raping Garcia-Milian — while laughing — over the course of an interrogation that focused on nothing other than information about her ex-husband, whom the attackers sought to find because of his political views.
This leads me to my ultimate point of disagreement: I fail to see how any reasonable fact-finder could conclude that the circumstantial evidence in this case is insufficient to meet the nexus requirement, as the majority concludes. To the contrary, I would hold that any reasonable fact-finder would be compelled to find that Garcia-Milian was personally targeted because of her ex-husband’s political beliefs. See Silaya,
For the above reasons, I would hold that the record compels the conclusion that Garcia-Milian was beaten and raped because of her ex-husband’s political views, which satisfies the requirements for showing “imputed political opinion.” I would therefore grant the petition with respect to Garcia-Milian’s claims for asylum and withholding of removal and remand for further proceedings.
. We have recognized that compelling evidence of imputed political opinion may include, inter alia, the persecutor’s "conduct or statements,” Navas v. I.N.S.,
