United States Court of Appeals
For the First Circuit
ANDREA DEL CARMEN CASTILLO-DIAZ,
ERIC H. HOLDER, JR.*, Attorney General,
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Boudin, John R. Gibson,** and Howard,
Jose A. Espinosa for petitioner.
Gregory G. Katsas, Assistant Attorney General, Civil Division,
Francis Fraser, Senior Litigation Counsel and Kate D. Balaban,
Trial Attorney, Office of Immigration Litigation, Civil Division,
United States Department of Justice, for respondent.
March 30, 2009
Pursuant to Fed. R. App. P. 43(c)(2), Eric H. Holder, Jr. is
automatically substituted for former Attorney General Michael B.
Mukasey as the respondent herein.
Of the Eighth Circuit, sitting by designation.
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HOWARD, Circuit Judge. Petitioner Andrea Del Carmen
Castillo-Diaz, a native and citizen of El Salvador, seeks review of
a Board of Immigration Appeals ("BIA") final order summarily
affirming an Immigration Judge's ("IJ") denial of her applications
for asylum and withholding of removal. Finding no legal error in
the IJ's reasoning, and discerning substantial evidence in the
record supporting the IJ's determination, we deny the petition.
Castillo-Diaz entered the United States without
inspection on or about July 6, 2003, and shortly thereafter the
Department of Homeland Security ("DHS") issued a notice to appear
charging her with removability under 8 U.S.C. Â§ 1182(a)(6)(A)(i) as
an alien present in the United States without being admitted or
paroled. Castillo-Diaz conceded the charge, and in June 2004 filed
applications for asylum, withholding of removal, and protection
under the Convention Against Torture ("CAT"), alleging that she had
been the victim of "unknown men who kidnapped and raped" her, and
that they would attack her again if she returned to El Salvador.
At an evidentiary hearing before an IJ two years later,
Castillo-Diaz provided the factual basis for her application.
According to her testimony, in March 2003, while she was walking
near her home, two unidentified men grabbed her, pulled her inside
a van, and raped her. She was fifteen years old. Scared and
traumatized by the attack, Castillo-Diaz did not report the
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incident. Although she admitted to having no reason to believe
that her attackers could identify her, she nonetheless feared that
they would find and retaliate against her or her family if she
involved the police. Two months later, Castillo-Diaz learned that
she was pregnant as a result of the rape, and her family made
arrangements for her to join her mother in the United States. As
noted above, she entered the United States and was charged with
removability shortly thereafter. In November 2003, while still
living in the United States and with the DHS's charge of
removability still pending, she gave birth to a child.
In an oral decision, the IJ concluded that she had not
demonstrated her eligibility for asylum.1 Specifically, the IJ
found that Castillo-Diaz had not established her membership in a
cognizable "particular social group" within the meaning of 8 U.S.C.
Â§ 1101(a)(42)(A), explaining that neither "young women," "women
generally," nor "anyone who is vulnerable" is a recognized group
for asylum purposes. On the contrary, the IJ characterized
Castillo-Diaz as "the victim of a crime," and noted that "fear of
crime, or fear of general violence . . . has never been accepted as
a ground for asylum or withholding of removal." The IJ further
found that Castillo-Diaz had failed to carry her burden to
establish that the government of El Salvador would be unable or
Although the IJ did not specifically make a credibility
determination, he treated Castillo-Diaz's testimony as credible for
purposes of his decision.
[End Page 3]
unwilling to control the individuals who raped her, noting that
although her reluctance to report the crime was understandable
given the "tremendous risk" she would have incurred in testifying
against "dangerous violent people," her decision not to involve the
police nonetheless "made it impossible for the government to
attempt to do anything" to protect her. Additionally, the IJ found
that even if Castillo-Diaz had shown a threat of persecution, she
had not shown that "the threat of persecution is country wide and
not just confined to a small area," noting that while rape occurs
country wide in El Salvador, Castillo-Diaz had not shown that her
attackers would conceivably "search for her in any wider area than
just the town in which she lived." Finally, the IJ found that
Castillo-Diaz had not provided adequate evidentiary support for her
claim for protection under the CAT, noting that the men who raped
her had not been shown to have a connection to the government of El
Salvador.2 The IJ therefore found Castillo-Diaz removable as
charged, denied her applications for asylum, withholding of
removal, and CAT relief, and ordered her removed to El Salvador.
Castillo-Diaz appealed to the BIA, which affirmed the IJ
without opinion.3 This petition followed. We have jurisdiction
Castillo-Diaz has not appealed the IJ and BIA's denial of her CAT
Castillo-Diaz asserts that the BIA's use of its "affirmance
without opinion" procedure denied her due process of law. We have
rejected this challenge before, and for the same reasons, we do so
again here. See, e.g., Liu v. Mukasey, 553 F.3d 37
(1st Cir. 2009)
[End Page 4]
pursuant to Â§ 242(a)(1) of the Immigration and Nationality Act
("INA"), 8 U.S.C. Â§ 1252(a)(1).
II. STANDARD OF REVIEW
Where, as here, the BIA summarily affirms the IJ's
decision under the "affirmance without opinion" procedure outlined
in 8 C.F.R. Â§ 1003.1(e)(4), we review the IJ's decision directly as
if it were the decision of the BIA. Aguilar v. Gonzales, 475 F.3d 415
, 417 (1st Cir. 2007).
We review the IJ's findings of fact under the deferential
"substantial evidence" standard, reversing only if a "reasonable
adjudicator would be compelled to conclude to the contrary." 8
U.S.C. Â§ 1252(b)(4)(B); Khan v. Mukasey, 549 F.3d 573
, 576 (1st
Cir. 2008); Romilus v. Ashcroft, 385 F.3d 1
, 5 (1st Cir. 2004).
Under this standard, the decision will be upheld "'if supported by
reasonable, substantial, and probative evidence on the record
considered as a whole.'" Carcamo-Recinos v. Ashcroft, 389 F.3d 253
, 256 (1st Cir. 2004) (quoting Khalil v. Ashcroft, 337 F.3d 50
55 (1st Cir. 2003)). In contrast, we review questions of law de
novo. Pan v. Gonzales, 445 F.3d 60
, 61 (1st Cir. 2006).
(citing Albathani v. INS, 318 F.3d 365
, 377 (1st Cir. 2003)); Disu
v. Ashcroft, 338 F.3d 13
, 18 (1st Cir. 2003) (citing Albathani, 318
F.3d at 375-79; El Moraghy v. Ashcroft, 331 F.3d 195
, 205-06 (1st
[End Page 5]
III. LEGAL STANDARDS
Section 208(a) of the INA authorizes the Attorney General
to exercise his discretion to grant asylum to eligible refugee
aliens. 8 U.S.C. Â§ 1159(a). The alien bears the burden of
demonstrating her eligibility for asylum. 8 U.S.C. Â§ 1158(b)(1);
8 C.F.R. Â§ 1208.13(a); Romilus, 385 F.3d at 6. There are two ways
an alien can establish that eligibility. First, she can
demonstrate that while in the relevant foreign country she suffered
persecution in the past on the basis of her race, religion,
nationality, membership in a particular social group, or political
opinion, and that she consequently has a well-founded fear of
persecution such that she is unable or unwilling to return to that
country. 8 U.S.C. Â§ 1101(a)(42)(A); 8 C.F.R. Â§ 1208.13(b). An
alien who demonstrates past persecution is presumed, subject to
rebuttal, to have a well-founded fear of future persecution. 8
C.F.R. Â§ 1208.13(b).
Second, an alien can demonstrate directly her well-
founded fear of future persecution through an offer of "specific
proof." Romilus, 385 F.3d at 6; see also 8 C.F.R. Â§ 1208.13(b).
Doing so requires proving that her fear is both subjectively
genuine and objectively reasonable. Sou v. Gonzales, 450 F.3d 1
7 (1st Cir. 2006). Demonstrating objectively reasonable fear
requires showing that "'a reasonable person in [her] circumstances
would fear persecution on account of a statutorily protected
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ground.'" Romilus, 385 F.3d at 7 (quoting Khalil, 337 F.3d at 56).
The alien's "testimony may be sufficient to demonstrate the
objective reasonableness of [her] fear, 'but [the testimony] must
constitute credible and specific evidence of a reasonable fear of
persecution.'" Carcamo-Recinos, 389 F.3d at 257 (quoting Afful v.
Ashcroft, 380 F.3d 1
, 3 (1st Cir. 2004)).
The burden is also on the alien to show eligibility for
withholding of removal. 8 U.S.C. Â§ 1231(b)(3)(A); 8 C.F.R. Â§
1208.16(b). Specifically, the alien must "show a clear probability
of future persecution" based on one of the five statutorily
protected grounds. Palma-Mazariegos v. Gonzales, 428 F.3d 30
(1st Cir. 2005) (citing Aguilar-Solis v. INS, 168 F.3d 565
, 569 n.3
(1st Cir. 1999)); Khan, 549 F.3d at 576. Because the "clear
probability" showing for withholding of removal places a "'more
stringent burden of proof on an alien than does a counterpart claim
for asylum,'" when an alien's "claim for asylum fails, so too does
[her] counterpart claim for withholding of removal." Id. (quoting
Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120
, 123 (1st Cir. 2005)).
Castillo-Diaz argues that, contrary to the IJ's finding,
she is in fact a member of two cognizable "particular social
group[s]" under 8 U.S.C. Â§ 1101(a)(42)(A), 8 C.F.R. Â§ 1208.13(b):
"rape victims who have born[e] a child as a result of the rape,"
and "child rape victims who are severely traumatized." The
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petitioner cites no authority suggesting that her proposed defined
groups constitute particular social groups. Even assuming arguendo
that these proposed groups fit the statutory definition of
"particular social group," Castillo-Diaz still has not demonstrated
her eligibility for asylum, as the record contains substantial
evidence supporting each of the IJ's alternative bases for denying
her petition for asylum.
A. Past Persecution
To prove past persecution, Castillo-Diaz is required to
show, inter alia, that the government of El Salvador was involved
in her attack "(i) by evidence that government actors committed or
instigated the acts complained of; (ii) by evidence that government
actors condoned the acts; or (iii) by evidence of an inability on
the part of the government to prevent the acts." Harutyunyan v.
Gonzales, 421 F.3d 64
, 68 (1st Cir. 2005); see also Nikijuluw v.
Gonzales, 427 F.3d 115
, 121 (1st Cir. 2005) (stating that an alien
only qualifies for asylum "when he suffers persecution that is
direct result of government action, government-supported action, or
government's unwillingness or inability to control private
conduct."). Castillo-Diaz makes no argument at all that the
government committed, instigated, or condoned the attack; on the
contrary, she acknowledges that her attackers were unknown to her
and that, because she made no report to the police, the government
was unaware of what happened to her. As to the government's
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willingness and ability to protect her from future attacks,
Castillo-Diaz's only argument is that the State Department country
conditions report "clearly states that the government of El
Salvador does not protect women against violence, therefore Ms.
Castillo-Diaz is likely to be further persecuted and the government
could or would not protect her." She does not, however, make
specific reference to evidence contained in the State Department
The IJ considered Castillo-Diaz's argument and rejected
it. In his decision, he reviewed the State Department's report and
noted that the government of El Salvador has the power to prosecute
rape cases and attaches a significant penalty to a conviction for
rape (up to twenty years incarceration). On that basis, the IJ
concluded that, even if Castillo-Diaz's decision not to report the
crime was understandable under the circumstances, a report might
nonetheless have been fruitful. She therefore had not carried her
burden to show that the government of El Salvador would have been
unwilling or unable to pursue these lines of redress on her behalf.
The IJ was entitled to draw this conclusion from the record. See,
e.g., Galicia v. Ashcroft, 396 F.3d 446
, 448 (1st Cir. 2005)
(affirming an IJ's finding that petitioner "did not show that the
harassment he suffered was by the government or a group the
government could not control" where, inter alia, the petitioner did
not inform authorities of his attack). Accordingly, the IJ's
[End Page 9]
conclusion that Castillo-Diaz failed to prove past persecution was
supported by substantial evidence. Harutyunyan, 421 F.3d at 68;
see also, e.g., Manjivar v. Gonzales, 416 F.3d 918
, 922 (8th Cir.
2005) (holding that a young woman specifically targeted for attack
by a gang because one of the gang members wanted her as a
girlfriend was not subject to persecution attributable to the
Salvadoran government, in part because no police report had been
filed and therefore the government "had no opportunity to
respond"); Melgar de Torres v. Reno, 191 F.3d 307
, 313 (2d Cir.
1999) (finding no past persecution where evidence established that
rape was "an act of random violence").
B. Well-Founded Fear of Future Persecution
The IJ's conclusion that the threat against Castillo-Diaz
was not country wide is also supported in the record, and this
finding defeats her claim of a well-founded fear of future
persecution. See Harutyunyan, 421 F.3d at 69 ("[A] finding that
violence is localized supports a determination that the violence
does not constitute persecution."); Silva, 394 F.3d at 7 ("[A]n
alien who asserts a fear of future persecution by local
functionaries ordinarily must show that those functionaries have
more than a localized reach."); 8 C.F.R. Â§ 1208.13(b)(2)(ii) ("An
applicant does not have a well-founded fear of persecution if the
applicant could avoid persecution by relocating to another part of
the applicant's country of nationality . . . if under all the
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circumstances it would be reasonable to expect the applicant to do
so.").4 As the IJ noted, the record contains no evidence that
Castillo-Diaz faced a threat outside of the town in which she
lived. On the contrary, Castillo-Diaz's testimony regarding any
future threat was entirely restricted to events in and around her
hometown. The IJ's conclusion that any threat was localized was
therefore supported by substantial evidence, and he properly relied
on that finding to conclude that Castillo-Diaz had failed to
establish a well-founded fear of future persecution.
C. Withholding of Removal
Because Castillo-Diaz's claim for asylum fails, so too
does her counterpart claim for withholding of removal. Palma-
Mazariegos, 428 F.3d at 37.
This case, as the IJ recognized, is a sad one.
Nevertheless, the immigration judge's conclusion that Castillo-Diaz
did not demonstrate eligibility for asylum or withholding of
removal was supported by substantial evidence. The petition for
review is therefore DENIED.
The rationale behind this requirement is that "'[i]f a potentially
troublesome state of affairs is sufficiently localized, an alien
can avoid persecution by the simple expedient of relocating within
his own country instead of fleeing to foreign soil.'" Tendean v.
Gonzales, 503 F.3d 8
, 11 (1st Cir. 2007) (quoting Silva, 394 F.3d
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