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burden of proofwillasylum
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Galloso v. Barr

Facts

Galloso entered the United States without inspection in February 2001 and was placed in removal proceedings in 2017. She claimed that she would face future persecution in Mexico due to her membership in specific social groups, including Mexican females and married women in domestic relationships they cannot leave. Galloso testified about the physical and sexual abuse she suffered from her husbands but did not report the abuse to the Mexican police, believing they would not help her.

Galloso is a citizen of Mexico. In February 2001, she entered the United States without inspection. After she was placed in removal proceedings in 2017, she sought asylum, withholding of removal, and relief under the Convention Against Torture (CAT). Galloso claimed that if she returned to Mexico, she would face future persecution based on her membership in four particular social groups: (1) Mexican females; (2) close family members; (3) 'Mexican married women in domestic relationships they are unable to leave'; and (4) 'married Mexican women who are viewed as property by virtue of their position within a domestic relationship.'

Issue

Did Galloso establish a well-founded fear of future persecution that would entitle her to asylum or withholding of removal?

Did Galloso establish a well-founded fear of future persecution that would entitle her to asylum or withholding of removal?

Rule

To be eligible for asylum, an applicant must show that she meets the definition of 'refugee,' which includes demonstrating a well-founded fear of persecution that is both subjectively genuine and objectively reasonable.

To be eligible for asylum, an applicant must show that she meets the definition of 'refugee.' 8 U.S.C. 1158(b)(1). A refugee is a person who is outside the country of that 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, religion, nationality, membership in a particular social group or political opinion.' 8 U.S.C. 1101(a)(42). An applicant who establishes past persecution is entitled to a rebuttable presumption that she possesses a well-founded fear of future persecution on the same basis. 8 C.F.R. 1208.13(b)(1). But an applicant who fails to establish past persecution must demonstrate a well-founded fear of future persecution that is 'both subjectively genuine and objectively reasonable.' Bracic v. Holder, 603 F.3d 1027, 1034 (8th Cir. 2010).

Analysis

The court applied the unable-and-unwilling standard to assess whether the Mexican government could protect Galloso from her abuser. It noted that Galloso's failure to contact the police about her abuse undermined her claim that the government was unable or unwilling to help her. The court found that the country condition reports were too general and did not support her fear of future persecution.

The BIA has adopted, and we have approved as reasonable, a definition of 'persecution' that requires a harm to be 'inflicted either by the government of [a country] or by persons or an organization that the government was unable or unwilling to control.' Miranda v. INS, 139 F.3d 624, 627 (8th Cir. 1998). A government's ability to control the persecutors is a question of fact, and we must uphold the agency's finding regarding this question of fact 'unless any reasonable adjudicator would be compelled to conclude to the contrary.' 8 U.S.C. 1252(b)(4)(B); see Saldana v. Lynch, 820 F.3d 970, 976 (8th Cir. 2016) (a government's ability to control persecutors is a question of fact).

Conclusion

The court denied Galloso's petition for review, affirming the BIA's decision that she did not establish a well-founded fear of future persecution.

The petition for review is denied.

Who won?

The government prevailed in the case because Galloso failed to meet her burden of proof regarding her fear of persecution and the government's ability to protect her.

The BIA agreed with the IJ's determination that Galloso failed to show a well-founded fear of future persecution. It noted that '[w]hile the country condition reports indicate that the justice system in Mexico is corrupt, the respondent has not met her burden to prove that the government either condoned the behavior of her abusers or that the government was unable to prevent the abuse.'

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