United States Court of Appeals

For the Eighth Circuit

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No. 12-2247

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Alejandro Gutierrez-Vidal

lllllllllllllllllllllPetitioner

v.

Eric H. Holder, Jr., Attorney General of the United States

lllllllllllllllllllllRespondent

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Petition for Review of an Order of the

 Board of Immigration Appeals

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 Submitted: October 30, 2012

 Filed: March 11, 2013

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Before RILEY, Chief Judge, BEAM and BYE, Circuit Judges.

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BEAM, Circuit Judge. 

Alejandro Gutierrez-Vidal petitions for review of the Board of Immigration

Appeals' ("BIA") decision affirming the immigration judge's ("IJ") denial of his

asylum and withholding of removal claims. Having jurisdiction under 8 U.S.C. §

1252(a), we deny the petition.
I. BACKGROUND

Gutierrez-Vidal, a 49-year-old citizen of Peru, entered the United States

without inspection on or about January 12, 2003. Gutierrez-Vidal fears persecution

if he returns to Peru, on account of his political opinion. From 1998 to 2000,

Gutierrez-Vidal was the elected president of a group called Señor de los Milagros

("the Group"). The Group consisted of approximately 400 members and helped local

authorities provide necessary services–medicine, schooling, housing–to Group

members. According to Gutierrez-Vidal, members of what he described as a terrorist

organization, the "Shining Path," had infiltrated the Group. Gutierrez-Vidal actively

opposed the Shining Path at the Group meetings.

In October 1999, Gutierrez-Vidal was meeting with the Group's Finance

Secretary, Mario Chavez-Chacon, when three masked individuals attacked them. 

Chavez-Chacon was killed during the attack, but Gutierrez-Vidal was able to escape. 

Gutierrez-Vidal believed that the assailants intended to kill him because he was the

highest ranking official in the Group. The police investigated this attack and made

arrests, but they were never able to convict the perpetrators. In another instance in

October 1999, Gutierrez-Vidal was attacked on his way to work. He was struck in

the head and was treated in the hospital for a fractured skull, a broken arm, broken

ribs and cuts on his body. Gutierrez-Vidal could not identify the attackers because

their faces were covered. Gutierrez-Vidal also reported this incident to the police,

who arrested some individuals, but the authorities were again unable to convict

anyone. Further, Gutierrez-Vidal testified that he received threatening phone calls

at his home, and the caller urged him to resign from his position in the Group or he

would be killed. Gutierrez-Vidal reported the calls to the police, who conducted an

unproductive investigation. In 2000, Gutierrez-Vidal resigned from his position in

the Group. 

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Gutierrez-Vidal left Peru and moved to Panama for a short period of time. 

After he left Peru, Gutierrez-Vidal's family moved from Lima into the Peruvian

jungle. When Gutierrez-Vidal wasliving in Panama, his family informed himthat the

terrorists were still looking for himand knew he wasliving in Panama. As of the date

of Gutierrez-Vidal's appearance before the IJ, one of his children was living in Lima,

Peru, one was living in Italy, and the other remained in the Peruvian jungle with his

mother. 

Gutierrez-Vidal entered the United States on or about January 12, 2003. On

December 24, 2003,the government commenced removal proceedings, and GutierrezVidal conceded removability, but applied for asylum, withholding of removal and

Convention Against Torture ("CAT") relief. The IJ denied Gutierrez-Vidal's requests

for relief. After finding Gutierrez-Vidal's testimony credible, the IJ concluded

Gutierrez-Vidal failed to establish persecution. The IJreasoned that Gutierrez-Vidal's

injuries, suffered because of his political opinion, rose to a level beyond harassment

or mistreatment, but because Gutierrez-Vidal did not establish that the Peruvian

government was unable or unwilling to control the Shining Path, he failed to establish

past persecution. The IJ further concluded that Gutierrez-Vidal did not establish a

well-founded fear of future persecution, because he did not establish that he could not

reasonably relocate to Lima. Thus, according to the IJ, Gutierrez-Vidal did not meet

his burden for establishing asylum, and, as a result, he could not meet the higher

burden for establishing eligibility for withholding of removal. Finally, the IJ

concluded Gutierrez-Vidal did not present evidence to support his CAT claim. 

Gutierrez-Vidal appealed to the BIA, which upheld the IJ's conclusion and

dismissed the appeal. In doing so, the BIA emphasized the IJ's determination that

Gutierrez-Vidal did not establish that the Peruvian government was unable or

unwilling to control the persecutors. Additionally, the BIA concluded that GutierrezVidal was unable to identify his assailants, and therefore did not establish a wellfounded fear of future persecution by the Shining Path. Accordingly, the BIA denied

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the appeal. Gutierrez-Vidal petitions for review of the BIA's decision with respect

to his asylum and withholding of removal claims. 

II. DISCUSSION

We review the BIA's decision, asit isthe final agency action, but "to the extent

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

decision as part of the final agency action." Matul-Hernandez v. Holder, 685 F.3d

707, 710-11 (8th Cir. 2012) (quotation omitted). "An agency's findings of fact are

conclusive unless any reasonable adjudicator would be compelled to conclude to the

contrary." Fofana v. Holder, 704 F.3d 554, 557 (8th Cir. 2013). We review asylum

and withholding of removal claims for "substantial evidence . . . upholding the

decision if it is supported by reasonable, substantial, and probative evidence based

on the record as a whole. Id. (internal quotations omitted).

An alien is eligible for asylumif the Attorney General determinesthat he orshe

is a "refugee." 8 U.S.C. § 1158(b)(1)(A). A "refugee" is "a person who is unable or

unwilling to return to his or her country of origin 'because of persecution or a wellfounded fear of persecution on account of race, religion, nationality, membership in

a particular social group, or political opinion.'" Ortiz-Puentes v. Holder, 662 F.3d

481, 483 (8th Cir. 2011) (quoting 8 U.S.C. § 1101(a)(42)(A)). The asylum applicant

bears the burden to establish persecution. 8 C.F.R. § 1208.13(a), (b)(1). Persecution

"includes the credible threat of death, torture, or injury to one's person or liberty on

account of a protected ground," but does not include "low-level intimidation and

harassment." Matul-Hernandez, 685 F.3d at 711 (quotations omitted). If an applicant

establishes past persecution, a well-founded fear of future persecution is presumed. 

8 C.F.R. § 1208.13(b)(1). Where the applicant fails to establish past persecution, he

must demonstrate a well-founded fear of future persecution. Id. In order to prove a

well-founded fear of future persecution, the applicant must provide "credible, direct,

and specific evidence" to show that "he actually fears persecution and that a

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reasonable person in the alien's position would fear persecution if returned to the

alien's native country." Suprun v. Gonzales, 442 F.3d 1078, 1081 (8th Cir. 2006)

(quotations and internal quotation omitted). 

Additionally, as relevant to past persecution or a well-founded fear of future

persecution, the applicant must show that the "assaults were either condoned by the

government or were committed by private actors that the government was unwilling

or unable to control." Matul-Hernandez, 685 F.3d at 711 (quotation and internal

quotation omitted); see also Suprun, 442 F.3d at 1081. To prove persecution based

on the violent conduct of a private actor, the applicant "must show more than just a

difficulty controlling private behavior." Salman v. Holder, 687 F.3d 991, 995 (8th

Cir. 2012) (internal quotation omitted). Rather, the applicant must show that the

government condoned the private behavior "or at least demonstrated a complete

helplessness to protect the victims." Id. (quotation omitted). "Without this

imprimatur of government officials, asylum claims based on the conduct of nongovernmental partiesfail." Guillen-Hernandez v. Holder, 592 F.3d 883, 887 (8thCir.

2010). "Whether a government is unable or unwilling to control private actors" is a

question of fact that "must be resolved based on the record in each case." Menjivar

v. Gonzales, 416 F.3d 918, 921 (8th Cir. 2005) (internal quotation omitted). 

Here, Gutierrez-Vidal asserts that the BIA erred by affirming the IJ's

determination that he failed to show that the Peruvian authorities were unable or

unwilling to protect him from the Shining Path. Gutierrez-Vidal does not allege that

the government itself inflicted the harm. Considering Gutierrez-Vidal's testimony and

the substantial evidence before it, the BIA correctly concluded that Gutierrez-Vidal

failed to demonstrate that the Peruvian authorities were unable or unwilling to control

the Shining Path. After the murder of Chavez-Chacon and after Gutierrez-Vidal was

attacked, the police investigated both incidents and made arrests. The Peruvian

police also entered a protection order for Gutierrez-Vidal. Gutierrez-Vidal contends

that the investigations were "minimal and fruitless." However, evidence of

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"ineffectiveness and corruption do not, alone, require a finding that the government

is 'unable or unwilling'" to control the alleged persecutor where evidence indicates

to the contrary. Khilan v. Holder, 557 F.3d 583, 586 (8th Cir. 2009) (per curiam). 

Considering the police efforts, the substantial evidence in the record does not indicate

that the government condoned the actions of the Shining Path or demonstrated a

complete helplessness to protect Gutierrez-Vidal. Thus, Gutierrez-Vidal failed to

establish a harm amounting to persecution. Kimumwe v. Gonzales, 431 F.3d 319,

322-23 (8th Cir. 2005) (finding that actions of private parties do not amount to

persecution without a showing that the harm inflicted was by persons that the

government is unwilling and unable to control). 

For this same reason, Gutierrez-Vidal failed to establish a well-founded fear

of future persecution. See Suprun, 442 F.3d at 1081 (noting where "the harassment

in the past by private individuals does not rise to the level of persecution, so neither

would its sporadic continuance in the future"). Gutierrez-Vidal did not produce any

"credible, direct, and specific" evidence to indicate the Peruvian government would

be unable and unwilling to control the private actors upon Gutierrez-Vidal's return. 

The BIA concluded that the Shining Path resurgence, after being substantially

suppressed by the government, is primarily limited to the coca-growing regions of

Peru. The record contains articles depicting instances of attacks carried out by the

Shining Path; this evidence, however, is not so strong as to compel a reasonable

factfinder to conclude that the Peruvian government is or would be unable or

unwilling to control the Shining Path, such that the harm must be attributable to the

government. See Menjivar, 416 F.3d at 922. Because Gutierrez-Vidal did not

demonstrate any government imprimatur, past or present, he has not established

"persecution" within the meaning of 8 U.S.C. § 1101(a)(42)(A), and accordingly his

asylumapplication fails. Guillen-Hernandez, 592 F.3d at 887 (noting that without the

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imprimatur of government officials, the asylum claims based on the conduct of

private parties fail, specifically finding no well-founded fear of persecution).1

Finally, because Gutierrez-Vidal failed to satisfy the lower burden of proof

required for asylum, it follows that he failed to satisfy the higher, clear probability

standard for withholding of removal. 8 C.F.R. § 1208.16(b); Fofana, 704 F.3d at 558. 

III. CONCLUSION

For these reasons, we deny Gutierrez-Vidal's petition for review. 

______________________________

Gutierrez-Vidal also asserts that the IJ erred by concluding Gutierrez-Vidal 1

did not establish a well-founded fear of future persecution because he did not

establish that it would be unreasonable to relocate within Peru. Because the BIA did

not expressly adopt the IJ's determination as to Guitierrez-Vidal's ability to relocate,

that issue is not properly before us. Fofanah v. Gonzales, 447 F.3d 1037, 1040 (8th

Cir. 2006) ("Because the BIA did not consider the IJ's alternative grounds for denying

relief, those issues are not properly before us. Only the BIA order is subject to our

review, including the IJ's findings and reasoning to the extent they were expressly

adopted by the BIA."). Regardless of the relocation issue, Guitierrez-Vidal did not

demonstrate harm amounting to persecution, as discussed above, and thus his asylum

application fails.

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