United States Court of Appeals

For the First Circuit

No. 21-2011

KARIN VILA-CASTRO;

ADRIANA ANDREA RAMIREZ-VILA;

DANIEL ANGEL RAMIREZ-SALAS,

Petitioners,

v.

MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF

THE BOARD OF IMMIGRATION APPEALS

Before

Barron, Chief Judge,

Howard and Montecalvo, Circuit Judges.

Kimberly A. Williams, with whom Jeffrey B. Rubin, Todd C. 

Pomerleau, and Rubin Pomerleau PC were on brief, for petitioners.

Jesse D. Lorenz, Trial Attorney, Office of Immigration 

Litigation, Civil Division, U.S. Department of Justice, with whom 

Brian M. Boynton, Principal Deputy Assistant Attorney General, and 

David J. Schor, Senior Litigation Counsel, were on brief, for 

respondent.

August 8, 2023
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BARRON, Chief Judge. We have before us a petition for 

review of an order of the Board of Immigration Appeals ("BIA") by 

several Peruvian nationals who have been ordered removed from this 

country. The petitioners challenge the denial of their claims for 

asylum, withholding of removal, and protection pursuant to the 

regulations implementing the Convention Against Torture ("CAT"). 

They base the claims on their contention that they fear being 

seriously physically harmed or killed in Peru due to their previous 

involvement with the American Popular Revolutionary Alliance 

("APRA") political party in that country. After careful 

consideration, we deny the petition.

I.

The petitioners are Karin Vila-Castro, her husband 

Daniel Angel Ramirez-Salas, and their daughter Adriana Andrea 

Ramirez-Vila ("Adriana"), all of whom are natives and citizens of 

Peru. Vila-Castro and Ramirez-Salas also have another daughter 

-- Neosma Ramirez-Vila ("Neosma") -- who, although not herself a 

petitioner, was named in the proceedings before the BIA as a 

derivative of her parents' asylum applications. Vila-Castro and 

Adriana entered the United States on May 18, 2014. Ramirez-Salas

entered the United States with Neosma on December 20, 2015.

Each of the petitioners was charged with removability 

under 8 U.S.C. § 1182(a)(6)(A)(i) as a noncitizen unlawfully 

present in the United States. The petitioners conceded 
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removability in proceedings before the Immigration Judge ("IJ"). 

Each then sought to avoid removal by seeking asylum, withholding 

of removal, and CAT protection.

In advancing the claims, the petitioners rely on 

testimony in the removal proceedings before the IJ that they were 

involved with the APRA political party before they left Peru; many 

of Ramirez-Salas's family members were also involved with the 

party; Ramirez-Salas's uncle and uncle's brother-in-law were 

elected mayors as members of the party; and Vila-Castro worked 

directly on the campaigns for both of those individuals. They 

further rely on testimony at their removal proceedings that 

concerns three specific incidents that occurred in Peru before 

they left that country and came to the United States.

The first incident is a motorcycle accident that 

occurred in late 2013 and in which Neosma was injured. Vila-Castro 

and Ramirez-Salas testified that they believe that members of an 

opposing political party intentionally caused the accident and 

targeted Neosma due to her family's support of the APRA party.

The second incident is Vila-Castro's receipt at the 

family's home in April 2014 of a threatening anonymous letter. 

Vila-Castro and Ramirez-Salas testified that the letter was 

addressed to Vila-Castro specifically and that it threatened 

Vila-Castro and her family with death if she continued supporting 

the APRA party. Vila-Castro and Ramirez-Salas also testified that 
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Vila-Castro reported the letter to the police that same day and 

that the police responded that they could not investigate the 

letter because it was anonymous and Vila-Castro was unable to 

identify who had sent it.

Vila-Castro and Ramirez-Salas further testified that 

nine days after they reported the anonymous letter to the police, 

they filed a complaint with the Interior Minister of the government 

of Peru to initiate a police investigation. Vila-Castro testified 

that the Interior Minister subsequently gave her a document that 

ordered the local police to investigate the letter and instructed 

her to take the document to the police. She testified that she 

decided not to do so, however, because she believed the police 

were ineffective and corrupt and for that reason she was by that 

point "no longer interested" in pursuing a police investigation.

Vila-Castro and Ramirez-Salas testified that the third

incident occurred "on election day" in 2014, when a group of APRA 

supporters (including Vila-Castro) was attacked by supporters of 

opposing political parties. Vila-Castro testified that she and 

the other APRA supporters were all aboard a large boat and that a 

group of supporters of opposing parties threw rocks and sticks at 

them to prevent them from disembarking.

Vila-Castro and Ramirez-Salas each testified that, 

because of these incidents, they came to believe that if they 

remained in Peru, they or their family members would be killed. 
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They each further testified that, because of that fear, Vila-Castro 

left Peru for the United States with Adriana in May 2014 and that 

Ramirez-Salas and Neosma remained in hiding in Ramirez-Salas's 

mother's house until December 2015, at which point they also left 

for the United States. Vila-Castro and Ramirez-Salas testified 

that they continue to fear that if they return to Peru they or 

their family members would be seriously harmed or killed.

In an order entered on February 7, 2019, the IJ treated 

the petitioners' testimony as credible but nonetheless ordered the

petitioners removed. The BIA affirmed the IJ's ruling. This 

petition was then timely filed.

II.

"We usually review decisions of the BIA, not the IJ. 

But where, as here, 'the BIA both adopts the findings of the IJ 

and discusses some of the bases for the IJ's decision, we have 

authority to review the decisions of both the IJ and the BIA.'" 

Ordonez-Quino v. Holder, 760 F.3d 80, 87 (1st Cir. 2014) (citation 

omitted) (quoting Romilus v. Ashcroft, 385 F.3d 1, 5 (1st Cir. 

2004)). "We review the BIA's and IJ's interpretations of law de 

novo, 'subject to appropriate principles of administrative 

deference.'" Id. (quoting Larios v. Holder, 608 F.3d 105, 107 

(1st Cir. 2010)). Meanwhile, "[w]e review their findings of fact 

. . . 'under the familiar and deferential substantial evidence 

standard.'" Id. (quoting Ivanov v. Holder, 736 F.3d 5, 11 (1st 
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Cir. 2013)). Under that standard, we may reject factual findings 

only "if the record would compel a reasonable fact-finder to reach 

a contrary conclusion." Id. (citing Vasili v. Holder, 732 F.3d 

83, 89 (1st Cir. 2013)); see also 8 U.S.C. § 1252(b)(4)(B).

III.

We begin with the asylum claim. For the petitioners to 

establish that they are eligible for asylum, they must show that 

they are "unable or unwilling to return to" Peru "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)(A); id.

§ 1158(b)(1). A showing of past persecution gives rise to a 

presumption of a well-founded fear of future persecution. See

Aguilar-Escoto v. Garland, 59 F.4th 510, 518 (1st Cir. 2023).

The petitioners predicate their showing that they have 

a well-founded fear of persecution on their having been subject to 

past persecution. Because "[p]ersecution always implies some 

connection to governmental action or inaction," Orelien v. 

Gonzales, 467 F.3d 67, 72 (1st Cir. 2006), petitioners must show

that the underlying past mistreatment that they allege occurred 

"is the 'direct result of government action, government-supported 

action, or government's unwillingness or inability to control 

private conduct,'" id. (quoting Nikijuluw v. Gonzales, 427 F.3d 

115, 121 (1st Cir. 2005)).
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The BIA upheld the IJ's ruling that the petitioners had 

failed to make the requisite showing regarding government 

involvement. That determination is one "of fact that we review 

under the highly deferential substantial evidence standard." 

Ortiz-Araniba v. Keisler, 505 F.3d 39, 42 (1st Cir. 2007) (citing 

Attia v. Gonzales, 477 F.3d 21, 23 (1st Cir. 2007)). Thus, we 

must uphold the BIA's ruling on this score "unless any reasonable 

adjudicator would be compelled to conclude to the contrary." Id.

(quoting 8 U.S.C. § 1252(b)(4)(B)).

In contending that any reasonable adjudicator would be 

so compelled, the petitioners rely chiefly on the evidence in the 

record of their efforts to have the police in Peru investigate the 

anonymous threatening letter that Vila-Castro received. They 

argue in part that this evidence shows that the police were

unwilling to protect them, even if the police were not unable to 

do so. The petitioners emphasize in that regard that the 

undisputed record shows that after Vila-Castro reported the 

anonymous letter to the police that conveyed a death threat, the 

police failed to take steps to conduct a "proper investigation 

. . . to find who were [sic] making such threats and put an end to 

it." But the petitioners also argue that this same evidence also 

shows that the Peruvian government is unable to protect them (even 

though the petitioners need only make one of these two showings). 

They explain in this regard that the police's "failure to locate 
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the responsible parties" because of the unwillingness of the police

to investigate the letter necessarily means that the Peruvian 

government is also unable to take any measures to protect the 

petitioners.

The undisputed record shows, however, that the Interior 

Minister of the government of Peru gave Vila-Castro a document

that ordered the police in Peru to investigate the threatening 

letter and instructed Vila-Castro to deliver the document to the 

police. The record then further shows -- again, without dispute 

-- that Vila-Castro chose not to do so because the police "were 

taking too long" and so she "made a decision just to leave [her]

country." Thus, we see no ground for concluding that the record 

compels the conclusion that the Peruvian government was either 

unwilling or unable to provide protection to the petitioners. See

Barsoum v. Holder, 617 F.3d 73, 80 (1st Cir. 2010) (holding that 

the record did not compel such a conclusion when it showed that a 

petitioner "sought assistance from the police only once," then 

"never again sought their help," and otherwise had "not established

that the police were actually unable or unwilling to protect him").

The petitioners do appear to be arguing that it would have been 

futile to have pressed for further investigation by the police 

because the police in Peru are "corrupt" and only "resolve things" 

with "money." But we have previously made clear that a "failure 

to report mistreatment" due to "petitioner's subjective belief 
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that authorities are corrupt . . . is not, without more, 

sufficient" to show that seeking police assistance would have been 

futile. Morales-Morales v. Sessions, 857 F.3d 130, 135 (1st Cir. 

2017). And indeed, here, the respondent put forward evidence that, 

although corruption is a pervasive problem in Peru, the Peruvian 

government does take some action to investigate and prosecute 

corruption, and the evidence that the petitioners put forward does

not compel a contrary conclusion.

We also cannot agree with the petitioners that our 

decision in Rosales Justo v. Sessions, 895 F.3d 154 (1st Cir. 

2018), supports their position. In that case, we vacated a BIA 

order that overturned an IJ's finding that the Mexican government 

was unable to protect the petitioner. Id. at 156–57. We did so 

on the ground that the BIA, by pointing only to evidence that the 

Mexican government had investigated the murder of the petitioner's 

son, "missed the distinction drawn by the IJ between the Mexican 

government's willingness to investigate [the] murder and its 

ability to protect [the petitioner] in the future." Id. at 163 

(emphasis added).

Of course, here, we are dealing with a case in which the 

BIA affirmed the IJ's finding that the petitioner had failed to 

show that the foreign government was unwilling or unable to provide 

protection. And, in any event, there is no basis for concluding 

that the BIA or IJ made a similar error here to the one that we 
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identified in Rosales-Justo. Indeed, the petitioners made no 

argument to the BIA that the IJ's ruling was in error because it 

failed to distinguish between the "unable" and "unwilling" 

inquiries. See 8 U.S.C. § 1252(d)(1) (requiring exhaustion); 

Kinisu v. Holder, 721 F.3d 29, 34 (1st Cir. 2013) (holding that 

court may not consider argument that petitioner failed to raise 

before the BIA).

IV.

The petitioners separately challenge the BIA's order 

denying their claim for withholding of removal. But that claim 

not only requires the petitioners to satisfy the "unwilling or 

unable" standard but also to do so under "the even-more-demanding 

clear-probability test." Morales-Morales, 857 F.3d at 136. Thus, 

this challenge fails for the same reasons that their challenge to 

the denial of their asylum claim does. Id. (holding that because 

petitioner's asylum-based challenge failed on ground that 

petitioner could not show that government was unwilling or unable 

to protect him, petitioner's withholding-of-removal-based 

challenge also necessarily failed).

V.

Finally, we must address the petitioners' challenge to 

the denial of their CAT claim. We have made clear that, in 

addressing a CAT claim, "[o]ur charge is not to look through the 

record searching for reasoning that the IJ might have offered, but 
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did not," Hernandez-Martinez v. Garland, 59 F.4th 33, 41 (1st Cir. 

2023), but rather to rely "only on reasoning provided by the 

agency," id. (quoting Mihaylov v. Ashcroft, 379 F.3d 15, 21 (1st 

Cir. 2004)). But here, too, the IJ rejected the petitioners' CAT

claim in part on the ground that the petitioners had not shown the 

requisite degree of connection between the alleged harm at the 

hands of private actors and the Peruvian government, see Romilus,

385 F.3d at 8 ("[A]n applicant [for CAT protection] must 

demonstrate that any torture he will suffer would be at the hands 

of the government or with the consent or acquiescence of the 

government."), and the BIA then "affirm[ed]" that ruling.1 Thus, 

the petitioners' challenge to the denial of their applications for 

CAT protection "likewise fails for substantially the same reason 

1 We do note that, in affirming the IJ's ruling, the BIA mistakenly 

stated that the IJ "determined that [the petitioners] ha[ve] not 

established through record evidence that it is more likely than 

not that [they] would be tortured by, or at the instigation of, or 

with the consent or acquiescence . . . of a public official in 

China." (Emphasis added). However, the petitioners make no 

argument that this error merits remanding the case, and instead 

only argue that the BIA's "adopt[ing] the IJ's findings and only 

provid[ing] a cursory discussion of the IJ's reasoning" requires 

that we "review both the decision of the IJ and the [BIA]." 

Moreover, the IJ concluded that "[a]lthough country conditions 

evidence indicates the prevalence of violence against women, 

children and LGBTI persons; trafficking in persons; unlawful 

killings, and corruption and impunity that undermined the rule of 

law, the [petitioners] have not adduced sufficient evidence to 

establish that, if they return to their country, it is more likely 

than not that members of the government will engage, instigate, 

consent, or acquiesce, in their torture." (Emphasis added). We 

therefore affirm on that basis.
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as do [their] challenges to the denials of [their] request[s] for 

asylum and withholding of removal." Morales-Morales, 857 F.3d at 

136 (citing Romilus, 385 F.3d at 8).

VI.

For these reasons, we deny the petition.

So Ordered.