United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-2413

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Blanca Estela Villatoro, * 

* 

Petitioner, * 

* Petition for Review of a

v. * Final Decision of the Board 

* of Immigration Appeals.

Alberto Gonzales, * 

* [UNPUBLISHED]

Respondent. *

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Submitted: June 15, 2007

Filed: August 13, 2007

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Before MELLOY, SMITH, and GRUENDER, Circuit Judges.

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PER CURIAM.

Blanca Estela Villatoro petitions this court for review of an order by the Board

of Immigration Appeals (BIA) summarily affirming the immigration judge's (IJ)

denial of her applications for asylum and withholding of removal. After carefully

reviewing the record, we deny Villatoro's petition for review. 

I. Background

Villatoro, a native and citizen of Guatemala, entered the United States without

inspection on March 2, 1992. On October 11, 2000, the government commenced

removal proceedings against Villatoro, charging her with being removable pursuant
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to § 212(a)(6)(A)(I) of the Immigration and Nationality Act (INA), 8 U.S.C. §

1182(a)(6)(A)(I). 

 Villatoro admitted all the factual allegations contained in the Notice to Appear

and conceded that she was removable as charged. She applied for asylum and

withholding of removal. According to Villatoro, she left war-torn Guatemala to find

work. She applied for asylum based on her fear "of the violence in Guatemala." She

claimed that "people were always being killed," murders were occurring "everyday,"

"there were a lot of robberies and theft," and "no justice" existed in Guatemala.

According to Villatoro, violence in Guatemala is "everyday" and "constant." 

Villatoro claimed that, in 1990 or 1991, five armed men robbed the cosmetic

store where she worked. She alleged that even though the police were called, "they

arrived late." She also claimed that on April 17, 1999—seven years after she left

Guatemala—her brother-in-law, who organized a neighborhood watch group in

response to gang activity, was murdered by gang members. She testified that the

Guatemalan justice system convicted the perpetrator and sentenced him to 20 years

in prison. According to Villatoro, the convicted murderer's mother threatened

Villatoro's sister, telling the sister that when the mother's son was released from

prison, he would seek revenge. She further testified that her cousin was also murdered

by gangs on July 31, 1999; however, her cousin was not a member of the

neighborhood watch group. Villatoro testified that her cousin was "good friends" with

her brother-in-law. 

At the end of Villatoro's hearing, the IJ asked Villatoro to specify which asylum

ground she was seeking, as she did not do so on her application. She responded that

she sought asylum based on her membership in the social group of "[t]hose being

threatened by these gang members" and clarified that she was a "part of a social group

that comprised of people who are threatened and physically harmed by particular gang

members." 
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The IJ denied Villatoro's applications for asylum and withholding of removal.

According to the IJ, Villatoro failed to establish that she suffered from "any form of

mistreatment, physical or otherwise." As a result, the IJ found that she had not been

a victim of past persecution. 

Additionally, the IJ found that Villatoro failed to establish a well-founded fear

of future persecution under any statutorily-enumerated ground, as "[t]he record d[id]

not establish a nexus between [Villatoro's] fear of future persecution and her brotherin-law's anti-gang organizing activity that may have led to his murder in April 1999."

The IJ rejected Villatoro's argument that she was a member of a particular social

group consisting of persons who are threatened or harmed by gang members, finding

that "the record d[id] not either establish the existence of a social group within these

parameters or demonstrate that individuals with these characteristics are at risk of

being persecuted by either the government or a group that the government is unable

or unwilling to control."

Finally, while the IJ found Villatoro to be credible, he determined that her fear

of returning to Guatemala was "based upon generalized violence and crime," which

does not "provide a basis for asylum eligibility." Because she was not eligible for

asylum, the IJ found that she also failed to demonstrate eligibility for withholding of

removal. The IJ granted Villatoro voluntary departure. 

Villatoro appealed to the BIA, arguing that while she initially claimed asylum

eligibility based on membership in a particular social group, she was eligible for

asylum based on her "anti-gang political opinion." She claimed that she "still holds an

anti-gang political opinion [and that] she fears that she would suffer a similar fate as

her cousin and brother-in-law in Guatemala today." She argued that the IJ erred in

concluding that she did not suffer past persecution and asserted that she did not fear
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According to the government, when she raised her political opinion claim to

the BIA, she claimed that she had an "anti-gang political opinion." Now, on appeal to

this court, she argues that the gang members would "impute" such an opinion to her.

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general violence but instead had a specific fear of gangs based on her anti-gang

"political opinion." The BIA summarily affirmed the IJ's decision. 

II. Discussion

Villatoro argues that the IJ's decision denying her political asylum is not

supported by substantial evidence, as the IJ erroneously examined her claim under a

social group analysis instead of as an imputed political opinion case.

In response, the government argues that this court should deny Villatoro's

petition for review because (1) she did not raise a political claim until she sought

appellate review with the BIA1

; (2) substantial evidence supports the IJ's conclusion

that her fear of returning to Guatemala was based on general violence in that country

and that no nexus exists between her fear of future persecution and her brother-inlaw's anti-gang activity; (3) no evidence suggests that gangs in Guatemala would

impute her brother-in-law's anti-gang political opinion to her or even that the gang is

aware of her existence; and (4) her two sisters continue to live in Guatemala

unharmed. 

A. Standard of Review

"When the BIA affirms the decision of the IJ without opinion, the IJ's decision

is treated as the final agency decision." Zhuang v. Gonzales, 471 F.3d 884, 888 (8th

Cir. 2006). If the IJ's decision is supported by substantial evidence on the

administrative record as a whole, we must affirm the decision. Id. at 889. "When the

IJ has denied asylum, withholding of removal, or relief under CAT, the petitioner

bears the heavy burden of showing that [her] evidence was so compelling that no

reasonable factfinder could fail to find the requisite fear of persecution." Id. (internal

quotations and citations omitted).
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B. Failure to Claim Imputed Political Opinion on Asylum Application

As a threshold matter, the government argues that Villatoro failed to raise her

political opinion claim to the IJ and presented such claim for the first time on appeal

to the BIA. In Makarov v. Ashcroft, 95 Fed. Appx. 841 (8th Cir. 2004) (unpublished),

we "declin[ed] to consider [the petitioner's] argument that he was persecuted because

of an imputed political opinion" because "[h]e did not claim on his asylum application

that he was persecuted for his political opinion, he offered no testimony as to his

political opinion (imputed or otherwise), and the IJ did not address such a claim." Id.

at 842 (citing Afolayan v. INS, 219 F.3d 784, 788 (8th Cir. 2000) ("We lack

jurisdiction to review claims that were not presented to the BIA in the first

instance.")). 

Here, Villatoro conceded in her appeal to the BIA that she never presented a

political opinion claim to the IJ, stating that she "initially claimed to be eligible for

asylum pursuant to a social group argument. However . . . [she now] believes that she

instead is eligible for asylum based on a political opinion." As Villatoro never raised

this argument before the IJ, as in Makarov, we decline to consider her claim that she

was persecuted on account of imputed political opinion. 

C. Well-Founded Fear of Future Persecution 

Villatoro's claim also fails on the merits because she does not show a wellfounded fear of future persecution. "The Secretary of Homeland Security or the

Attorney General may grant asylum to an alien who has applied for asylum . . . if the

Secretary of Homeland Security or the Attorney General determines that such alien

is a refugee. . . ." 8 U.S.C. § 1158(b)(1). A "refugee"is: 

any person who is outside any country of such person's nationality...

who is unable or unwilling to return to, and is unable or unwilling to

avail himself or herself of the protection of, that country because of

persecution or a well-founded fear of persecution on account of race,
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religion, nationality, membership in a particular social group, or political

opinion. . . .

8 U.S.C. § 1101(a)(42)(A). 

"The petitioner has the burden of showing refugee status." Gemechu v. Ashcroft,

387 F.3d 944, 947 (8th Cir. 2004) (citing 8 C.F.R. § 208.13(a)). Here, Villatoro

concedes that she has not suffered past persecution; therefore, the issue is whether she

has a well-founded fear of future persecution. 

To show a well-founded fear of persecution, the petitioner must

demonstrate a fear that is subjectively genuine and objectively

reasonable. For an alien's fear of persecution to be objectively

reasonable, the fear must have basis in reality and must be neither

irrational nor so speculative or general as to lack credibility.

Id. (internal quotations and citation omitted).

"Persecution is an extreme concept and low-level types of intimidation or

harassment are not sufficiently severe." Krasnopivtsev v. Ashcroft, 382 F.3d 832, 839

(8th Cir. 2004). "[B]rief periods of detention, ethnic conflict, or isolated violence do

not necessarily constitute persecution." Id. "[A] fear of general violence and unrest in

[Guatemala]" does not "provide a basis for asylum eligibility under the INA." LopezZeron v. INS, 8 F.3d 636, 638 (8th Cir. 1993). Additionally, "[t]he reasonableness of

a fear of persecution is diminished when family members remain in the native country

unharmed, and the applicant [herself] had not been singled out for abuse."

Krasnopivtsev, 382 F.3d at 839. 

When claiming persecution on account of political opinion, the petitioner must

establish that the record "compels the conclusion that [s]he has a 'well-founded fear'

[of persecution] because of that political opinion. . . ." INS v. Elias-Zacarias, 502 U.S.
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478, 483 (1992) (emphasis in original). The petitioner "must provide some evidence"

of her persecutors' motive, "direct or circumstantial." Id. (emphasis in original). 

For example, in Salazar v. Gonzales, 178 Fed. Appx. 617 (8th Cir. 2006)

(unpublished), we held that the petitioner failed to establish her eligibility for asylum

because "[e]ven if guerrillas were responsible for her boyfriend's murder, and even if

the guerrillas killed him because he was a bodyguard for an Army colonel, [the

petitioner] did not testify or present evidence that these guerrillas therefore imputed

a particular political opinion to her and threatened her because of the imputation." Id.

at 618 (citing Gomez v. Gonzales, 425 F.3d 543, 545–46 (8th Cir. 2005) (stating that

asylum applicants presented only a conclusory allegation that soldiers' motivation in

beating them was related to imputed political opinion, where soldiers said nothing

about applicants' political opinions and no other event supported such an imputation)).

Here, Villatoro has not met her burden to prove that she has a well-founded fear

of persecution on the basis of imputed political opinion. First, she applied for asylum

because of her "fear of violence" in Guatemala, as "people were always being killed"

and there were "murders everyday." As stated in Lopez, a generalized fear of violence

is insufficient to prove persecution. 

Second, as noted in Krasnopivtsev, Villatoro's fear of future persecution is

undermined by the continued safety experienced by her two sisters in Guatemala—

including the sister whose husband was murdered.

Third, even though Villatoro testified that her sister received threats from the

convicted murderer's mother, those threats were general in nature and amount to lowlevel intimidation and harassment. 

Fourth, as in Elias-Zacarias and Salazar, Villatoro has provided no evidence,

direct or circumstantial, that the gangs in Guatemala would impute to her an anti-gang
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political opinion and persecute her on the basis of such opinion. She presented no

evidence that the gangs in Guatemala even know of her existence, especially

considering that she left Guatemala more than seven years before her brother-in-law

was killed. 

Finally, no evidence exists in the record explaining her cousin's murder.

Villatoro testified that her cousin was not involved with her brother-in-law's

neighborhood watch group, and she offered no testimony beyond the fact that her

cousin was "good friends" with her brother-in-law to link her cousin's murder with the

murder of her brother-in-law. 

III. Conclusion

Accordingly, we deny the petition. 

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