United States Court of Appeals

For the Eighth Circuit

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No. 17-3780

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Oralia Juarez-Coronado, now known as Oralia Magali Marroquin

lllllllllllllllllllllPetitioner

v.

William P. Barr, Attorney General of the United States

1

lllllllllllllllllllllRespondent

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Immigration Law Professors

lllllllllllllllllllllInterested party - Amicus on Behalf of Petitioner

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Petition for Review of an Order of the

 Board of Immigration Appeals

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Submitted: October 16, 2018

Filed: March 29, 2019

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Before SHEPHERD, KELLY, and STRAS, Circuit Judges.

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1WilliamP. Barr has been appointed to serve as Attorney General of the United

States, and is substituted as respondent pursuant to Federal Rule of Appellate

Procedure 43(c).
KELLY, Circuit Judge.

Oralia Magali Marroquin, formerly known as Oralia MagaliJuarez-Coronado,

petitionsfor review of a decision ofthe Board ofImmigration Appeals (BIA) denying

her application for asylum, withholding of removal, and relief under the Convention

Against Torture (CAT). Because we conclude that the BIA’s decision wassupported

by substantial evidence, we deny the petition for review.

I

Marroquin is a citizen of Guatemala and is a member of the Mam ethnic group.

She entered the United States with her minor daughter on September 25, 2014. After

Marroquin was placed in removal proceedings, she sought asylum, withholding of

removal, and CAT relief. She claimed that if she were returned to Guatemala she

would be persecuted on account of her race, nationality, and membership in the

proposed particular social group of Guatemalan women who are unable to leave a

domestic relationship.

At a hearing before an immigration judge (IJ), Marroquin testified thatshe had

suffered domestic violence at the hands of her daughter’s father, Melvin, and feared

that if she were returned to Guatemala, Melvin would hurt her and take away her

daughter. Melvin lived with Marroquin in her family home between 2009 and 2014.

During thistime, Melvin beatMarroquin approximately 14 times, including when she

was pregnant with their child. Over the course of their relationship, Melvin strangled

her twice, once to the point where she could not breathe, and raped her four times.

Marroquin told Melvin to leave in May 2014, but he returned to the house

many times, asking her to forgive him and get back together with him. On one

occasion in July 2014, Melvin threw her on the ground and attempted to take her

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clothes off, but he ran away after Marroquin’s father and sister-in-law came home.

On July 28, after this incident, she filed a police report. A judge issued a restraining

order and told Marroquin that it was valid for six months. After the judge issued the

restraining order, Melvin continued to come over to the house. If he found Marroquin

alone, he would beat and threaten her. He told Marroquin that if she sought help from

the police and he wassent to jail, upon his release he would come looking for her and

try to kill her. She called the police once, but although they came to look for Melvin

they could not find him. She did not call the police again or go back to the judge that

issued the restraining order. Marroquin and her daughter left for the United States in

September 2014.

The IJ denied Marroquin’s requested relief, finding that Marroquin’s testimony

was not credible and, in the alternative, that she could not establish eligibility for

asylum or withholding of removal because she could not show that the Guatemalan

government was and would be unable or unwilling to protect her from Melvin. The

IJ also concluded that Marroquin’s CAT claim failed for the independent reason that

she could not establish that the Guatemalan government would acquiesce to her

torture if she were returned to Guatemala. Marroquin appealed to the BIA, and the

BIA affirmed.

The BIA agreed that Marroquin’s claims for asylum and withholding failed

because she could not show that the Guatemalan government was and would be

unable or unwilling to protect her against Melvin, noting that she successfully

acquired a restraining order and that the one time she called the police they came to

look for Melvin but could not find him. The BIA also upheld the CAT denial on the

same grounds relied upon by the IJ. The BIA expressly declined to reach the issue

of credibility.

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II

On appeal, Marroquin argues that the IJ erred in her credibility determination

and in denying all relief on the merits. “[B]ecause the BIA did not consider the IJ’s

credibility findings, that issue is not properly before us.” Njong v. Whitaker, 911

F.3d 919, 922 (8th Cir. 2018). And we will not review any claim for relief based on

Marroquin’s purported fear of persecution on account of her Mam ethnicity, because

it was not raised before or considered by the BIA. See Martinez Carcamo v. Holder,

713 F.3d 916, 925 (8th Cir. 2013). Accordingly, we review only the determination

that Marroquin failed to establish past persecution or a well-founded fear of future

persecution on account of her membership in a proposed particular social group of

Guatemalan women who cannot leave a relationship and the denial of CAT relief.

“We review the BIA’s decision, as it is the final agency decision; however, to

the extent that the BIA adopted the findings or the reasoning of the IJ, we also review

the IJ’s decision as part of the final agency action.” Davila-Mejia v. Mukasey, 531

F.3d 624, 627 (8th Cir. 2008). “When reviewing the BIA’s factual determinations,

we employ the deferential ‘substantial evidence’ standard.” Njong, 911 F.3d at 922

(quoting Eusebio v. Ashcroft, 361 F.3d 1088, 1091 (8th Cir. 2004)). Under that

standard, “we must affirm the BIA’s factual decisions unless, after having reviewed

the record as a whole, we determine that it would not be possible for a reasonable

fact-finder to adopt the BIA’s position.” Eusebio, 361 F.3d at 1091.

We find no basis for granting Marroquin’s petition for review. To establish

eligibility for asylum, Marroquin must show that she meets the definition of

“refugee,” defined as a person “who is unable or unwilling to return to, and is unable

or unwilling to avail himself or herself of the protection of, [his or her country of

nationality] because of persecution or a well-founded fear of persecution on account

of race, religion, nationality, membership in a particular social group, or political

opinion.” 8 U.S.C. § 1101(a)(42). The persecution “must be inflicted by a country’s

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government or by people or groups that the government is unable or unwilling to

control.” Edionseri v. Sessions, 860 F.3d 1101, 1104 (8th Cir. 2017). “Because the

government’s ability to control the persecutors is a question of fact, we must uphold

the agency’s finding ‘unless any reasonable adjudicator would be compelled to

conclude to the contrary.’” Romero-Larin v. Sessions, 733 F. App’x 847, 850 (8th

Cir. 2018) (per curiam) (citation omitted) (quoting 8 U.S.C. § 1252(b)(4)(B)).

Here, we cannot conclude that any reasonable adjudicator would be compelled

to find that the Guatemalan government was and would be unwilling or unable to

protect Marroquin against Melvin. Marroquin successfully obtained a restraining

order against Melvin, and it appearsthat the only time she attempted to enforce it, the

police responded to her complaint and came to look for him. Indeed, Marroquin

concedes that “it is not that the government of Guatemala is unwilling to intervene,

but they have been and are unable to control Melvin.” But the fact that the police

could not find Melvin when she sought to enforce the protective order does not

compel the conclusion that the Guatemalan authorities were unable to protect her,

especially in light of the fact that she never sought their aid again. See GutierrezVidal v. Holder, 709 F.3d 728, 733 (8th Cir. 2013) (substantial evidence did not

indicate government was unable or unwilling to control private actors where police

investigated incidents and made arrests, even though petitioner contended

investigations were “minimal and fruitless”). Accordingly, we cannot overturn the

agency’s determination that Marroquin could not establish eligibility for asylum.

2

2Amici curiae argue that there is a tension in our case law between a line of

cases that states that a petitioner must show that the government “condoned” the

persecutor’s actions or was “completely helpless” to protect the petitioner and another

line of casesthatsimply examines whether a petitioner can show that the government

is unable to provide effective protection. To the extent that there is such a tension,

we need not resolve it here, as Marroquin has conceded that the government was

willing to protect her and substantial evidence supports the conclusion that the

Guatemalan government was not unable to provide protection.

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And because Marroquin cannot satisfy the lower burden of proof required to establish

eligibility for asylum, it follows that she cannot establish eligibility for withholding

of removal. Id.

Substantial evidence also supports the agency’s denial of CAT relief. To

establish eligibility for CAT relief, Marroquin must show that it is more likely than

not that she will be subjected to torture if returned to Guatemala. See 8 C.F.R.

§ 208.16(c)(2); Guled v. Mukasey, 515 F.3d 872, 881 (8th Cir. 2008). “Torture”

within the meaning of CAT must be “inflicted by or at the instigation of or with the

consent or acquiescence of a public official or other person acting in an official

capacity.” 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 powerlessto stop it, but it does

cross the line into acquiescence when it shows willful blindness toward the torture

of citizens by third parties.” Mouawad v. Gonzales, 485 F.3d 405, 413 (8th Cir.

2007) (cleaned up). There is no evidence in the record that if Marroquin were

returned to Guatemala then the Guatemalan government would torture her or be

willfully blind to her torture at the hands of Melvin. Thus, we cannot overturn the

agency’s determination that Marroquin did not establish eligibility for CAT relief.

The petition for review is denied.

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