No IN THE SUPREME COURT OF THE UNITED STATES MARCH TERM VIVIANE SALA, Petitioner, UNITED STATES OF AMERICA, Respondent.

Transcription

1 No IN THE SUPREME COURT OF THE UNITED STATES MARCH TERM 2017 VIVIANE SALA, Petitioner, v. UNITED STATES OF AMERICA, Respondent. ON WRIT OF CERTIORARI TO THE SUPREME COURT OF THE UNITED STATES BRIEF FOR THE RESPONDENT TEAM 17 Counsel for Respondent

2 QUESTIONS PRESENTED I. Whether substantial evidence compels a finding that a sufficient nexus exists between Petitioner s alleged persecution and her protected status as a transgender woman. II. Whether substantial evidence compels a finding that the San Martino government was unwilling or unable to protect Petitioner. Assuming a finding that the San Martino government was unwilling or unable to protect Petitioner, whether substantial evidence compels a finding that internal relocation within San Martino would be either unsafe or unreasonable. i

3 TABLE OF CONTENTS QUESTIONS PRESENTED... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iv OPINIONS AND ORDERS BELOW... vi STATEMENT OF JURISDICTION... vii STATUTES... viii STATEMENT OF THE CASE... 1 SUMMARY OF ARGUMENT... 4 ARGUMENT... 6 I. PETITIONER FAILED TO FULFILL THE NEXUS REQUIREMENT BECAUSE THE PETITIONER DID NOT COMPELLINGLY DEMONSTRATE THAT SHE WAS PERSECUTED ON ACCOUNT OF HER STATUS AS A TRANSGENDER WOMAN A. The BIA s Interpretation of the Phrase At Least One Central Reason in the REAL ID Act is a Reasonable Construction of the Statute and is Thus Entitled Chevron Deference B. Substantial Evidence Supports the Factual Determination That the Petitioner s Status as a Transgender Woman Status Was Incidental, Tangential, Superficial, or Subordinate to Her Status as a Sex Worker in Motivating Her Attackers Substantial evidence supports that Petitioner was attacked on the basis of her occupation as a sex worker and that the male-gendered slurs used do not demonstrate that Petitioner s transgender status played more than an incidental or tangential role Petitioner has failed to definitively identify her attackers and has not provided meaningful evidence regarding their affiliation with ACCE. Even if she were able to, such an identification would not be dispositive in determining the motives of the attacks C. The Fourteenth Circuit Appropriately Reviewed the Evidence on the Record and Did Not Abuse its Discretion in Formulating its Opinion II. THE FOURTEENTH CIRCUIT CORRECTLY HELD THAT THE GOVERNMENT OF SAN MARTINO WAS BOTH WILLING AND ABLE TO PROTECT PETITIONER. EVEN IF THE GOVERNMENT OF SAN MARTINO HAD BEEN DEEMED UNWILLING OR UNABLE, SUBSTANTIAL EVIDENCE SUPPORTS THAT PETITIONER S RELOCATION WITHIN SAN MARTINO WOULD ALLOW THE AVOIDANCE OF PERSECUTION AND WOULD BE REASONABLE ii

4 A. Substantial Evidence Supports the Fact That the San Martino Government Was Both Willing and Able to Protect Petitioner San Martino s enactment of effective hate crime legislation evidences both its willingness and ability to protect Petitioner and those in similar circumstances Petitioner has not met her burden of proof given that she did not report the attacks against her to the San Martino authorities and has not provided sufficient evidence to corroborate her claims B. Even if the San Martino Government is Found to Have Been Unable or Unwilling to Protect Petitioner, the Department of Homeland Security has Established by the Preponderance of the Evidence That Petitioner Could Safely and Reasonably Relocate Within San Martino DHS has established by the preponderance of the evidence that internal relocation within San Martino would be safe given that Petitioner could avoid persecution in Paraisa DHS has established that relocation within San Martino would be reasonable and Petitioner has provided no evidence which indicates otherwise CONCLUSION iii

5 TABLE OF AUTHORITIES CASES Abdel-Rahman v. Gonzales, 493 F.3d 444 (4th Cir. 2007) Aden v. Holder, 589 F.3d 1040 (9th Cir. 2009)... 17, 25, 31 Amanfi v. Ashcroft, 328 F.3d 719 (3d. Cir. 2003)... 7 Arboleda v. United States AG, 434 F.3d 1220 (11th Cir. 2006) Baballah v. Ashcroft, 367 F.3d 1067 (9th Cir. 2004) Bace v. Ashcroft, 352 F.3d 1133 (7th Cir. 2005) Berishaj v. Ashcroft, 378 F.3d 314 (3d Cir. 2004)... 30, 31 Bueso-Avila v. Holder, 663 F.3d 934 (7th Cir. 2011) Buntha Ly v. Holder, 614 F.3d 20 (1st Cir. 2010) Castro-Martinez v. Holder, 674 F.3d 1073 (9th Cir. 2011)... 6, 23, 24, 25 Chawla v. Holder, 599 F.3d 998 (9th Cir. 2010) Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984)... 4, 9 Cubillos v. Holder, 565 F.3d 1054 (8th Cir. 2009) Dallakoti v. Holder, 619 F.3d 1264 (10th Cir. 2010) Fiadjoe v. AG, 411 F.3d 135 (3d Cir. 2005) Flores-Calderon v. Gonzales, 472 F.3d 1040 (8th Cir. 2007) Galina v. INS, 213 F.3d 955 (7th Cir. 2000) Girma v. INS, 283 F.3d 664 (5th Cir. 2002)... 7 Gomez-Zuluaga v. United States AG., 527 F.3d 330 (3d Cir. 2008) Gonzalez-Posadas v. AG United States, 781 F.3d 677 (3d Cir. 2015) Gu v. Gonzales, 454 F.3d 1014 (9th Cir. 2006) INS v. Aguirre Aguirre, 526 U.S. 415 (1999)... 9 INS v. Elias-Zacarias, 502 U.S. 478 (1992)... 8 Kaiser v Ashcroft, 390 F.3d 653 (9th Cir. 2004) Krastev v. INS, 292 F.3d 1268 (10th Cir. 2002) Lie v. Ashcroft, 396 F. 3d 530 (3d Cir. 2005) Madrigal v. Holder, 716 F.3d 499 (9th Cir. 2013) Martinez v. INS, 970 F.2d 973 (1st Cir. 1992) Matter of A-E-M-, 21 I&N Dec (BIA 1998) Matter of Dass, 20 I. & N. Dec. 120 (BIA 1989) Matter of J-B-N- & S-M-, 24 I. & N. Dec. 208 (BIA 2007)... 4, 8, 10, 11 Matter of McMullen, 17 I. & N. Dec. 542 (BIA 1980) Matter of M-Z-M-R-, 26 I. & N. Dec. 28 (BIA 2012)... 6, 27, 29 Matter of O-Z- & I-Z-, 22 I&N Dec. 23 (BIA 1998) Matter of S-P-, 21 I&N Dec. 486 (BIA 1996)... 7 Matter of Toboso-Alfonso, 20 I. & N. Dec. 819 (BIA 1990)... 7 Matter of Z-Z-O-, 26 I. & N. Dec. 586 (BIA 2015) Menjivar v. Gonzales, 416 F.3d 918 (8th Cir. 2005)... 5, 18, 19, 20 Ming Ming Wijono v. Gonzales, 439 F.3d 868 (8th Cir. 2006) Morales v. INS, 208 F.3d 323 (1st Cir. 2000) Orellana-Monson v. Holder, 685 F.3d 511 (8th Cir. 2009)... 9 Parussimova v. Mukasey, 533 F.3d 1128 (9th Cir. 2008)... 10, 12, 14 Rahimzadeh v. Holder, 613 F.3d 916 (9th Cir. 2010) Ritonga v. Holder, 633 F.3d 971 (10th Cir. 2011) Saldana v. Lynch, 820 F.3d 970 (8th Cir. 2016) Sarhan v. Holder, 658 F.3d 649 (7th Cir. 2011) Shehu v. Gonzales, 443 F.3d 435 (5th Cir. 2006) Singh v. Holder, 753 F.3d 826 (9th Cir. 2014)... 6, 25, 26, 33 Singh v. Mukasey, 543 F.3d 1 (1st Cir. 2008) Sowe v. Mukasey, 538 F.3d 1281 (9th Cir. 2008) Tarubac v. INS, 182 F.3d 1114 (9th Cir. 1999) iv

6 Tassi v. Holder, 660 F.3d 710 (4th Cir. 2011) United States v. Mead Corp., 533 U.S. 218 (2001)... 9 Vitug v. Holder, 723 F.3d 1056 (9th Cir. 2013)... 21, 26 Ziu v. Gonzales, 412 F.3d 202 (1st Cir. 2008) STATUTES 8 U.S.C. 1101(a)(42)(A) (2014)... 4, 6 8 U.S.C. 1158(b)(1)(B)(i) (2012)... passim 8 U.S.C. 1158(b)(1)(B)(ii) (2012)... 5, 13, 15, 21 8 U.S.C. 1252(b)(4)(B)(i) (2012)... 5 REGULATIONS 8 C.F.R (b)(1)(i)(B) (2007) C.F.R (b)(1)(ii) (2007) C.F.R (b)(2)(C)(ii) (2007) C.F.R (b)(3)(i) (2007) C.F.R (b)(3) (2007) v

7 OPINIONS AND ORDERS BELOW The opinion of the Board of Immigration Appeals is unreported and does not appear in the record below. The opinion of the U.S. Court of Appeals is reported and appears on page 4 of the record below. vi

8 STATEMENT OF JURISDICTION The statement of jurisdiction has been omitted in accordance with the rules of the U.C. Davis School of Law Asylum and Refugee Law National Moot Court Competition. vii

9 I. 8 U.S.C. 1101(a)(42)(A) (2014) STATUTES The term refugee means (A) any person who is outside any country of such person s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and 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, II. 8. U.S.C. 1158(b)(1)(B)(i) (2012) In general. The burden of proof is on the applicant to establish that the applicant is a refugee, within the meaning of section 1101(a)(42)(A) of this title. To establish that the applicant is a refugee within the meaning of such section, the applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant. III. 8. U.S.C. 1158(b)(1)(B)(ii) (2012) Sustaining burden. The testimony of the applicant may be sufficient to sustain the applicant s burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant s testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee. In determining whether the applicant has met the applicant s burden, the trier of fact may weigh the credible testimony along with other evidence of record. Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence. viii

10 IV. 8 U.S.C. 1252(b)(4)(B) (2012) Scope and standard for review. Except as provided in paragraph (5)(B) the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary, V. 8 C.F.R (a) (2012) The burden of proof is on the applicant for asylum to establish that he or she is a refugee as defined in section 101(a)(42) of the Act. The testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration. The fact that the applicant previously established a credible fear of persecution for purposes of section 235(b)(1)(B) of the Act does not relieve the alien of the additional burden of establishing eligibility for asylum. VI. 8 C.F.R (b)(1)(i)(B) (2012) The applicant could avoid future persecution by relocating to another part of the applicant's country of nationality or, if stateless, another part of the applicant's country of last habitual residence, and under all the circumstances, it would be reasonable to expect the applicant to do so. VII. 8 C.F.R (b)(1)(ii) (2012) In cases in which an applicant has demonstrated past persecution under paragraph (b)(1) of this section, the Service shall bear the burden of establishing by a preponderance of the evidence the requirements of paragraphs (b)(1)(i)(a) or (B) of this section. VIII. 8 C.F. R (b)(2)(C)(ii) (2012) An applicant does not have a well-founded fear of persecution if the applicant could avoid persecution by relocating to another part of the applicant's country of nationality or, ix

11 if stateless, another part of the applicant's country of last habitual residence, if under all the circumstances it would be reasonable to expect the applicant to do so. IX. 8 CFR (b)(3) (2012) Reasonableness of internal relocation. For purposes of determinations under paragraphs (b)(1)(i), (b)(1)(ii), and (b)(2) of this section, adjudicators should consider, but are not limited to considering, whether the applicant would face other serious harm in the place of suggested relocation; any ongoing civil strife within the country; administrative, economic, or judicial infrastructure; geographical limitations; and social and cultural constraints, such as age, gender, health, and social and familial ties. Those factors may, or may not, be relevant, depending on all the circumstances of the case, and are not necessarily determinative of whether it would be reasonable for the applicant to relocate. X. 8 C.F.R (b)(3)(i) (2012) In cases in which the applicant has not established past persecution, the applicant shall bear the burden of establishing that it would not be reasonable for him or her to relocate, unless the persecution is by a government or is government-sponsored. x

12 STATEMENT OF THE CASE San Martino is a 50,000 square kilometer country located in South America. R. at 5. The majority of San Martino s 5-million-person population lives in its two largest cities, Paraisa and Juarez, while the rest of its population lives in rural areas. Id. San Martino portrays itself as an inclusive and multicultural republic and has served as a model in South America due to its progressive policies. Id. Despite these progressive tendencies, in the early 2000s, the white nationalist organization Alianza de Colonos Christianos Europeos (ACCE) grew in size in San Martino. Id. ACCE s worldview is predicated on the notion that white culture is under assault and its members follow a fundamentalist version of Christianity which idealizes traditional family, gender, and sexual norms. Id. Its stated goal is to fight back against the policies which are contrary to its beliefs. Id. ACCE peaked in notoriety in 2008 due to widespread acts of violence against sex workers and transgender individuals across San Martino. R. at 6. In 2009, in direct response to this violence, the San Martino government enacted comprehensive hate crime legislation in order to restrain ACCE. Id. As a result, the number of hate crimes in San Martino dwindled and ACCE membership was reduced substantially. Id. Per the most recent State Department Country Report, ACCE membership is currently estimated to be between 5,000 and 35,000 individual members, mostly located within San Martino s rural areas. R. at 5. Though some news outlets in San Martino and the United States have speculated about the resurgence of ACCE in connection with a potential rightward shift in the San Martino government, no information on the record indicates that such a resurgence is underway or that such a shift has occurred. R. at 6, 8; See R. generally. Viviane Sala (Petitioner), a citizen of San Martino, entered the United States illegally in early R. at 6. The Department of Homeland Security (DHS) was alerted to Petitioner s 1

13 presence shortly thereafter when she was detained by local police in Sacramento, California. Id. DHS subsequently served Petitioner with a notice to appear and charged her with removability. Id. In response, Petitioner filed for asylum predicated on the fact that she had been persecuted in San Martino for being a transgender woman. Id. The Immigration Judge (IJ) denied Petitioner s application for asylum, and the Board of Immigration Appeals (BIA) summarily affirmed the IJ s decision. R. at 10. Petitioner subsequently appealed to the U.S. Court of Appeals for the Fourteenth Circuit, which affirmed the BIA s decision. See R. generally. Petitioner spent her childhood in Paraisa, the inclusive capital of San Martino, and openly identified as a woman. R. at 7. In 2009, she moved to a rural town where she became reserved with her gender identity due to the more conservative nature of rural San Martino culture. Id. In this small town, Petitioner passed as a cisgender female in public. Id. Around 2012, after personal differences with her parents, Petitioner moved to another rural town and established herself as a sex worker. Id. Petitioner alleges that in this rural town over several months in 2014 she experienced a series of incidents that amounted to past persecution on account of her status as a transgender woman. R. at 6-7. The first incident occurred in June 2014 as Petitioner and other sex workers were walking to their shared home from an area of town where they were known to work. R. at 7. An unidentified individual tossed an improvised tear gas explosive at the group and yelled derogatory slurs for sex workers at them as he drove past. Id. Petitioner specified that some of the slurs utilized were male-gendered. R. at 8. Petitioner testified that she did not recognize the perpetrator, but described him as a middle-aged, Western European male. Id. Petitioner and the other sex workers did not report the incident as they believed that the police would not catch the assailant and that harassment was an expected part of their job. Id. 2

14 A week after the first incident, Petitioner was featured in an exposé on sex workers by the state-run public media organization Televisión San Martino (TVSM). R. at 8. During a portion of the program, Petitioner openly spoke of her transgender status and the program mentioned that she was the only transgender woman in her small town. Id. The exposé received a large viewership due to its release on the five-year anniversary of the enactment of hate crime legislation in San Martino. Id. A few days after the airing of the exposé, the exterior walls of the house Petitioner shared with other sex workers were tagged with threats of violence and slurs similar to those used during the first incident. Id. Again, Petitioner and the other sex workers decided that the vandalism should not be reported due to a perceived risk of agitating the vandals. Id. More than a month later, the third incident occurred. Id. Petitioner states that an unidentified man approached her as a customer and assaulted her once they were alone. Id. During the assault, her attacker used a number of slurs against sex workers, some of which were male-gendered. R. at 9. Again, Petitioner did not recognize the assailant, but described him as ethnically Western European. Id. Petitioner noted that he was not the same man from the first incident and that he bore a Celtic cross tattoo on his forearm. Id. Although Petitioner cites the last incident as the moment she truly began to fear for her safety in San Martino, she still decided not to report the incident. Id. Petitioner indicated that she was afraid of retaliation and thought contacting the police was pointless on the basis of the comments made to her by the other sex workers. Id. Despite the fact that Petitioner could seek refuge with her wealthy and supportive cousins in Paraisa, Petitioner chose to leave San Martino due to her feeling that the country was no longer safe. Id. 3

15 SUMMARY OF ARGUMENT Petitioner has failed to establish a sufficient nexus between the harm inflicted to her and her membership in the protected group of transgender individuals. To qualify for asylum, applicants bear the burden of proving that they are a refugee within the meaning of the Immigration Nationality Act (INA). 8 U.S.C. 1158(b)(1)(B)(i) (2012). Per that definition, an applicant must demonstrate that they were persecuted on account of one of five enumerated grounds defined in 8 U.S.C. 1101(a)(42)(A) (2014). Id. In 2005, Congress enacted the REAL ID Act, which provides that a protected ground must be at least one central reason for the persecution. 8 U.S.C. 1158(b)(1)(B)(i) (2012). In reviewing this act, the Board of Immigration Appeals (BIA) concluded that the appropriate interpretation of one central reason is that the protected ground cannot play a minor role in the alien's past mistreatment or fears of future mistreatment. That is, it cannot be incidental, tangential, superficial, or subordinate to another reason for harm. Matter of J-B-N- & S-M-, 24 I. & N. Dec. 208, 214 (BIA 2007). This interpretation should be afforded Chevron deference as it is a reasonable construction of the statute by the agency responsible for its administration. Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 863 (1984). The Fourteenth Circuit correctly applied this standard and concluded that Petitioner s status as a transgender woman was incidental to her occupational status as a sex worker in the incidents that occurred. Petitioner has failed to provide corroborating evidence beyond her testimony, and has failed to establish the motive, identity or affiliation of her attackers. Additionally, circumstantial evidence indicates that the attackers central motive was either criminal or predicated on the Petitioner s occupation. The substantial evidence standard dictates this Court should only overturn the decision of the BIA if a reasonable adjudicator would be 4

16 compelled to conclude to the contrary. 8 U.S.C. 1252(b)(4)(B)(i) (2012). There is nothing on the record which should compel a different result. Even if Petitioner were able to establish nexus, she has failed to discharge her burden of demonstrating that the government of San Martino was either unwilling or unable to protect her. The BIA has adopted a definition of "persecution" that requires persecutory acts 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. Menjivar v. Gonzales, 416 F.3d 918, 921 (8th Cir. 2005). The record highlights the extent to which the government of San Martino has demonstrated both its willingness and ability to combat persecution against transgender individuals. San Martino enacted comprehensive hate crime legislation as part of a direct effort to prevent the form of persecution claimed by the petitioner and to incapacitate Alianza de Colonos Christianos Europeos (ACCE). R. at 5. This legislation has been successful in reducing the number of hate crimes in San Martino and limiting ACCE s influence. Nothing on the record undermines its efficacy or credibility. Furthermore, Petitioner s testimony does not fulfill her burden of establishing governmental unwillingness or inability and fails to rebut the evidence provided by the Department of Homeland Security (DHS). Due to the fact that Petitioner failed to report the incidents against her to the authorities, there is a gap in proof about how the government would [have] respond[ed]." Castro-Martinez v. Holder, 674 F.3d 1073, 1081 (9th Cir. 2011) (internal citations omitted). Petitioner failed to fill this gap with sufficiently corroborated evidence. Additionally, though there was no finding of adverse credibility made against Petitioner, the court may weigh credible testimony along with evidence of the record. 8 U.S.C 1158(b)(1)(B)(ii) (2012). The Fourteenth Circuit appropriately provided more weight to the

17 San Martino Report than to this unsubstantiated testimony. Singh v. Holder, 753 F.3d 826, 836 (9th Cir. 2014). Finally, even assuming Petitioner was able to establish governmental unwillingness or inability, DHS has demonstrated by the preponderance of the evidence that internal relocation to Paraisa would be both safe and reasonable. Matter of M-Z-M-R-, 26 I. & N. Dec. 28, 32 (BIA 2012). DHS has convincingly established that relocation within the capital city of Paraisa would be safer than remaining in the countryside as the 2013 San Martino Report highlights that ACCE membership is primarily relegated to rural areas. R. at 5. Petitioner has failed to rebut this evidence, and has simply attested that San Martino would be unsafe on the basis of news reports which speculate as to ACCE s resurgence and do not evidence any actual increase in ACCE s presence or activity. See R. generally. DHS has also provided evidence indicating that relocation would be reasonable given the presence of Petitioner s family in Paraisa. R. at 9. Ultimately, this Court should affirm the findings of the Fourteenth Circuit and sustain the denial of Petitioner s application for asylum. ARGUMENT I. PETITIONER FAILED TO FULFILL THE NEXUS REQUIREMENT BECAUSE THE PETITIONER DID NOT COMPELLINGLY DEMONSTRATE THAT SHE WAS PERSECUTED ON ACCOUNT OF HER STATUS AS A TRANSGENDER WOMAN. Applicants bear the burden of proving that they have been persecuted on account of one of the enumerated grounds discussed in 8 U.S.C. 1101(a)(42)(A). 8 U.S.C. 1158(b)(1)(B)(i). The BIA has recognized that [p]ersecutors may have differing motives for engaging in acts of persecution. Matter of S-P-, 21 I. & N. Dec. 486, 489 (BIA 1996). Prior to the REAL ID Act, courts evaluated these mixed-motive cases using a variety of standards. See e.g. Amanfi v. Ashcroft, 328 F.3d 719, 727 (3d. Cir. 2003) (requiring the protected ground to be 6

18 in significant part ); Girma v. INS, 283 F.3d 664, 668 (5th Cir. 2002) (requiring the protected ground to be in meaningful part ). However, in 2005, Congress directly addressed the mixed-motive issue in Section 101(a) of the REAL ID Act, which states that an applicant must establish that their membership in a protected group was or will be at least one central reason for their persecution. 8. U.S.C. 1158(b)(1)(B)(i). Critically, the amendment changed the original phrase of the central reason to one central reason. In interpreting this language, the BIA held in Matter of J-B-N- & S-M- that one central reason means that the protected ground cannot play a minor role in the alien's past mistreatment or fears of future mistreatment. That is, it cannot be incidental, tangential, superficial, or subordinate to another reason for harm. 24 I. & N. Dec. at 214. In establishing the nexus requirement, applicants must produce evidence, either direct or circumstantial, from which it is reasonable to believe that the harm was or would be motivated by their protected ground. Id. at 211. Under the substantial evidence standard, the court can reverse the BIA s factual determinations only if the record compels them to find a contrary result. 8 U.S.C. 1252(b)(4)(B); INS v. Elias-Zacarias, 502 U.S. 478, 484 (1992). Petitioner has claimed that she was persecuted on account of her transgender status, a protected ground. See Matter of Toboso-Alfonso, 20 I. & N. Dec. 819, 820 (BIA 1990). Petitioner has failed to provide evidence which sufficiently substantiates her claims and has thus failed to establish the nexus between the harm she experienced in San Martino and her protected status. No evidence on the record should compel this court to decide otherwise. A. The BIA s Interpretation of the Phrase At Least One Central Reason in the REAL ID Act is a Reasonable Construction of the Statute and Is Thus Entitled Chevron Deference. The Fourteenth Circuit appropriately applied the interpretation of at least one central reason as established in Matter of J-B-N- & S-M- in evaluating Petitioner s mixed-motive case. 7

19 R. at 13. While legal determinations defining the nexus requirement may be reviewed de novo, this Court should provide Chevron deference to the standard used by the BIA. Chevron, 467 U.S. at 837. In Chevron, U.S.A., Inc. v. NRDC, Inc., the Supreme Court established a two-step inquiry to determine whether a court must defer to an administrative agency s interpretation of a statute. 467 U.S. at 843. First, the court must ask whether the statute is silent or ambiguous with respect to the specific issue before it. Orellana-Monson v. Holder, 685 F.3d 511 (8th Cir. 2009) (citing INS v. Aguirre Aguirre, 526 U.S. 415, 424 (1999)). If the first step applies, then the court must look to whether the agency s answer is based on a permissible construction of the statute. Id. (citing Chevron, 467 U.S. at 843). The court must then defer to the agency s interpretation if it finds it reasonable. Chevron, 467 U.S. at 844. In applying the first step of the Chevron test, the phrase at least one central reason in 8 U.S.C. 1158(b)(1)(B)(i) is ambiguous in that it provides no clarification as to how to determine if a motivation is central or how to weigh multiple motivations in light of each other. Therefore, the BIA, as the agency responsible for the INA s administration, has the ability and authority to interpret this phrase. United States v. Mead Corp., 533 U.S. 218, (2001). Under the second step of the Chevron analysis, the BIA s methodical reasoning highlights the permissibility of the interpretation in Matter of J-B-N- & S-M-. The BIA parsed the word central, and extensively referenced both the legislative history and the original draft of the REAL ID Act to ascertain the intent of Congress in changing the wording of the nexus requirement from the central reason to one central reason. Matter of J-B-N- & S-M-, 24 I. & N. Dec. at Additionally, the BIA mentioned that this interpretation was not a significant departure from previous precedent. Id. 8

20 Since Matter of J-B-N- & S-M-, many circuits have adopted the BIA s standard for evaluating the nexus requirement in mixed-motive cases. See e.g. Dallakoti v. Holder, 619 F.3d 1264, 1268 (10th Cir. 2010); Singh v. Mukasey, 543 F.3d 1, 5 (1st Cir. 2008); Gomez-Zuluaga v. United States AG., 527 F.3d 330, 340, 345 (3d Cir. 2008); Parussimova v. Mukasey, 533 F.3d 1128, 1135 (9th Cir. 2008); Abdel-Rahman v. Gonzales, 493 F.3d 444, 453 n.12 (4th Cir. 2007). Given the BIA s consistent use of the Matter of J-B-N- & S-M- interpretation of the amendment to INA 208(b)(1)(B)(i), and its rational inference of the meaning of at least one central reason in the analysis of mixed-motive cases, this Court should maintain the Fourteenth Circuit s and BIA s standard that a protected ground cannot be incidental or subordinate to another reason for harm. Matter of J-B-N- & S-M-, 24 I. & N. Dec. at 214. B. Substantial Evidence Supports the Factual Determination That the Petitioner s Status as a Transgender Woman Status Was Incidental, Tangential, Superficial, or Subordinate to Her Status as a Sex Worker in Motivating Her Attackers. The Fourteenth Circuit opinion observed that in all three incidents the persecutors had two possible motives for persecuting the petitioner: (1) Petitioner s status as a sex worker, an unprotected ground, and, (2) Petitioner s status as a transgender woman, a protected ground. R. at 13. Substantial evidence affirms the factual finding by the Fourteenth Circuit that Petitioner s status as a transgender woman was incidental to her occupation as a sex worker. 1. Substantial evidence supports that Petitioner was attacked on the basis of her occupation as a sex worker and that the male-gendered slurs used do not demonstrate that Petitioner s transgender status played more than an incidental or tangential role. Derogatory slurs against sex workers constitute a primary part of Petitioner s evidence that the incidents were motivated by her status as a transgender woman. However, the malegendered nature of some of those slurs alone does not sufficiently establish that Petitioner was persecuted on account of her status as a transgender woman. Courts have found that such slurs 9

21 standing alone do not indicate motivation. See e.g. Ming Ming Wijono v. Gonzales, 439 F.3d 868, 873 (8th Cir. 2006) (anti-chinese statements by attackers were insufficient to establish a nexus between the attacks and the protected grounds of ethnicity and religion); Lie v. Ashcroft, 396 F. 3d 530, (3d Cir. 2005) (holding that ethnic slurs used during robberies of Chinese Christians in Indonesia were insufficient to conclude that the incidents were on account of ethnicity). Additionally, courts have also noted that slurs may be incidental to an attack. For instance, in Parussimova v. Mukasey, persecutors attempted to rape the applicant while calling her a Russian pig. 555 F.3d at 742. The Ninth Circuit found that the ethnic slur, standing alone did not compel the conclusion that ethnicity was a central reason for the attack, as it was the only evidence that [her ethnicity] played any role in that incident or the subsequent threats. Id. at 742. Finally, courts have noted that slurs may serve a purpose during an attack other than persecution. For example, when a gay man credibly testified that Mara gang members, when beating him, called him homosexual slurs and told him that he should be dead, the Third Circuit did not find that the man s sexual identity was a central reason for his persecution. Gonzalez-Posadas v. AG United States, 781 F.3d 677, 686 (3d Cir. 2015). Instead, the court found that it could be concluded that the Maras used the homophobic slurs as a means to an end namely cowing Gonzalez-Posadas into paying them off or joining their gang. Id. Both the context and substance of the incidents which occurred against Petitioner demonstrate that Petitioner s status as a transgender woman was not at least one central reason and that the slurs against her transgender status played an incidental or tangential role in the attacks. During the first incident, Petitioner was walking home in a group consisting of other sex 10

22 workers from an area of town where they were all known to work. R. at 7. In this incident, the sex workers were targeted as a group; the slurs and explosive device were targeted at them as a whole. Id. The first perpetrator had no reason to know that Petitioner was a transgender woman. The group Petitioner was with consisted entirely of individuals who identified as cisgender females in public. Critically, Petitioner passed as a cisgender female in public and states in the record that she became more reserved with her gender identity when she lived in the smaller towns outside of Juarez. R. at 7. There is no indication that anyone in her small town, including the attacker, knew she was transgender at this point. Therefore, it can reasonably be concluded that the slurs were aimed at the group of sex workers as a whole and that the male-gendered slurs were merely incidental to this broader attack. As for the second incident, Petitioner s home was vandalized with sex-worker related slurs, some of which were male-gendered. R. at 8. Notably, those slurs, male-gendered or not, were drawn onto the communal home Petitioner shared entirely with other sex workers. Id. Petitioner argues that because this incident occurred recently after the she was identified as the only transgender woman in her town in the widely viewed Televisión San Martino (TVSM) exposé on sex workers in San Martino, the vandal would have known of her transgender identity and thus purposefully used male-gendered slurs to target her specifically. However, the record gives no indication that the vandal was motivated by the exposé or even had knowledge of Petitioner s status. R. at 8-9. Further, even if Petitioner could establish a connection to the television program, she has not established that the attack was predicated on her transgender status and not her status as a sex worker. The exposé primarily discussed sex workers and Petitioner was merely featured on the program. Given the use of slurs pertaining to 11

23 sex workers, it is a reasonable conclusion that Petitioner s sex-worker status was the motivating concern. Thus, Petitioner s attestations and suspicions alone do not compel the conclusion that Petitioner s status as a transgender woman was a central reason for the vandalism. During the third incident, Petitioner was individually attacked and verbally assaulted with slurs similar to those used in the previous incidents. However, the record indicates that the assailant approached Petitioner, a sex worker, as a client. Therefore, it is a reasonable inference that the man approached Petitioner because he knew she was a sex worker. The use of particularly male-gendered terms may merely suggest only that the man became aware of Petitioner s transgender status during the attack and used it as a means to further degrade her. Parussimova, 555 F.3d at 742. Accordingly, the gendered slurs were not an indication of the attacker s motivation. Id. Given the dearth of evidence that the slurs were predicated on anything other than Petitioner s occupation, the record reveals no causal connection between Petitioner s protected ground and the attacks. Tarubac v. INS, 182 F.3d 1114, 1119 (9th Cir. 1999). Instead, Petitioner s status as a transgender woman was only incidental or tangential to her occupation and was not a central reason for her persecution. 2. Petitioner has failed to definitively identify her attackers and has not provided meaningful evidence regarding their affiliation with ACCE. Even if she were able to, such an identification would not be dispositive in determining the motives of the attacks. In establishing the motive for persecution, courts have noted the importance of establishing the identity of the perpetrator. Such an identification is critical in establishing whether an incident is actually persecution rather than merely criminal in nature. Flores Calderon v. Gonzales, 472 F.3d 1040, 1043 (8th Cir. 2007). Although an applicant s testimony may be sufficient to sustain [her] burden without corroboration, this remains true only if the 12

24 court finds that Petitioner s testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that [Petitioner] is a refugee. 8 U.S.C 1158(b)(1)(B)(ii). If the court finds that Petitioner should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence. Id. In this case, Petitioner has not provided evidence definitively identifying the perpetrators of the attacks against her and has not established with certainty their affiliation with ACCE. Petitioner has not proffered the requisite persuasive and specific evidence identifying the perpetrators of the attacks against her. Rather, she has only provided vague details describing the attackers as Western European, R. at 7 and 9, middle-aged, R. at 7, or bearing a Celtic cross on his forearm, R. at 9. Though she attests that the individuals were associated with ACCE, she has not provided any corroborating or directly indicative evidence linking the attackers together. Ultimately, Petitioner cannot point to her suspicion that the assailants were affiliated with ACCE as dispositive evidence of their motivations to persecute her on account of her transgender status. Petitioner s case is similar to that in Flores Calderon v. Gonzales, in which no evidence outside of the applicant s speculation was provided establishing that carjackers or persons making threatening phone calls were affiliated with a guerilla group. 472 F.3d 1040, 1043 (8th Cir. 2007). Consequently, the Eighth Circuit concluded that no evidence so compelling had been provided to overturn the BIA s determination that the applicant had been persecuted on account of a protected ground. Id. Similarly, when the applicant in Cubillos v. Holder received anonymous letters and calls from unidentified persons, the Eighth Circuit found that the acts were more characteristic of sporadic, anonymous harassment which did not amount to persecution on the basis of a protected ground. 565 F.3d 1054, 1057 (8th Cir. 2009). 13

25 Even if Petitioner had established her attacker s association with ACCE, this Court has held that the fact that the persecutor has a political goal or is affiliated with a political entity is not sufficient to establish persecution. INS v. Elias-Zacarias, 502 US. at 482. Applicants, therefore, cannot merely point to a perpetrator s suspected political affiliation as a motivation or reason for the alleged persecutory acts; the persecution must be based on the applicant s membership in a group, not the persecutor s. As such, Petitioner s speculation as to the possible motives of her attackers based on their suspected affiliations is not so compelling that no reasonable factfinder could arrive at the conclusion reached by the lower courts. C. The Fourteenth Circuit Appropriately Reviewed the Evidence on the Record and Did Not Abuse its Discretion in Formulating its Opinion. Petitioner may contend that the Fourteenth Circuit abused its discretion by neglecting to mention the male-gendered nature of the slurs in its opinion. However, the Fourteenth Circuit appropriately reviewed the evidence on the record and did not abuse its discretion in formulating its opinion. Critically, each piece of evidence need not be discussed in a decision. Morales v. INS, 208 F.3d 323, 328 (1st Cir. 2000). Where the lower court has given reasoned consideration to the petition, and made adequate findings, a reviewing court need not require that the lower court address specifically each claim the petitioner made or each piece of evidence the petitioner presented." Martinez v. INS, 970 F.2d 973, 976 (1st Cir. 1992). The Fourteenth Circuit provided reasoned consideration to each of the incidents Petitioner mentions in her testimony. R. at The court also mentions that slurs were used in each incident. Id. The lower court points to the fact that in the first two incidents, the Petitioner was attacked in the company of other sex workers. Id. Then, in considering the second and third attacks, the court notes that the attackers never mentioned the Televisión San Martino (TVSM) exposé, which the court believed weigh[ed] against any inference that the story played a role in 14

26 the attack[s]. R. at 14. Thus, as the Fourteenth Circuit offered reasoned explanation for its decision supported by reasonable, substantial, and probative evidence on the recorded considered as a whole, the lower court s factual findings should be upheld and treated as conclusive. Tassi v. Holder, 660 F.3d 710, 719 (4th Cir. 2011). Furthermore, although Petitioner was found to be a credible witness, credible testimony alone may not be sufficient, and courts may require that applicants provide evidence that corroborates their testimony. 8 U.S.C. 1158(b)(1)(B)(ii); Aden v. Holder, 589 F.3d 1040, 1041 (9th Cir. 2009). Therefore, even though Petitioner attests to the significance of the malegendered slurs, courts are free to reject [her] speculation as to motive despite finding [her] credible as to historical facts. Buntha Ly v. Holder, 614 F.3d 20, (1st Cir. 2010) (citing Ziu v. Gonzales, 412 F.3d 202, 204 (1st Cir. 2008)). As such, Petitioner s assumptions regarding the motivations of the attackers based on the male-gendered nature of the slurs are not sufficient to establish nexus with a protected ground and the Fourteenth Circuit s failure to mention their male-gendered nature should not be found to be an abuse of discretion. II. THE FOURTEENTH CIRCUIT CORRECTLY HELD THAT THE GOVERNMENT OF SAN MARTINO WAS BOTH WILLING AND ABLE TO PROTECT PETITIONER. EVEN IF THE GOVERNMENT OF SAN MARTINO HAD BEEN DEEMED UNWILLING OR UNABLE, SUBSTANTIAL EVIDENCE SUPPORTS THAT PETITIONER S RELOCATION WITHIN SAN MARTINO WOULD ALLOW THE AVOIDANCE OF PERSECUTION AND WOULD BE REASONABLE. A. Substantial Evidence Supports the Fact That the San Martino Government Was Both Willing and Able to Protect Petitioner. Petitioner has not sufficiently established that the San Martino government was unwilling or unable to protect her from the persecution allegedly perpetrated by ACCE. The BIA has adopted, and the Federal Circuit Courts have broadly accepted, a definition of "persecution" that requires persecutory acts to be "inflicted either by the government of [a country] or by persons or 15

27 an organization that the government was unable or unwilling to control. Menjivar, 416 F.3d at 921 (internal citations omitted). The burden of proof was on Petitioner to establish that that this requirement was met. 8 U.S.C. 1158(b)(1)(B)(i). Applicants have established that a government was unwilling to control a private actor on a variety of case-specific bases. Examples include, inter alia, when the government condoned the persecutory activity, when police persistently failed to respond to requests for protection or investigation, and when governments refused to prosecute the persecutors. See e.g. Krastev v. INS, 292 F.3d 1268, 1276 (10th Cir. 2002); Menjivar, 416 F.3d at 921; Matter of O-Z- & I-Z-, 22 I&N Dec. 23, 26 (BIA 1998). Courts must separately consider a government s ability to control private actors, as though a government may be willing to control a private actor, it may not practically or logistically be able to do so. Madrigal v. Holder, 716 F.3d 499, 507 (9th Cir. 2013). Such an analysis includes an evaluation of the efficacy of any efforts to control private actors. Id. at 506. In considering efficacy, there must be more than "difficulty... controlling" private behavior. Menjivar, 416 F.3d at 921 (quoting Matter of McMullen, 17 I. & N. Dec. 542, 546 (BIA 1980)). Rather, the applicant must show that the government demonstrated a complete helplessness to control that behavior. Id. at 921; see also Bueso-Avila v. Holder, 663 F.3d 934, 936 n.2 (7th Cir. 2011) (quoting Galina v. INS, 213 F.3d 955, 958 (7th Cir. 2000)); Shehu v. Gonzales, 443 F.3d 435, 437 (5th Cir. 2006) (quoting Galina, 213 F.3d at 958). Whether or not a government is unable or unwilling to control a private actor is a factual question that must be resolved based on the record in each case. Menjivar, 416 F.3d at 921. In reviewing factual determinations made by an Immigration Judge, courts must utilize the substantial evidence standard, meaning that the court will overturn factual determinations only 16

28 if a reasonable adjudicator would be compelled to conclude to the contrary. 8 U.S.C. 1252(b)(4)(B); see INS v. Elias-Zacarias, 502 U.S. at 484. Petitioner has not accused the San Martino government of direct persecution, but has rather suggested that ACCE, a private organization, has targeted her for her transgender status. She was thus required to establish that the government of San Martino was either unwilling or unable to protect her. The IJ found, and the BIA and Fourteenth Circuit subsequently affirmed, that the San Martino government was both willing and able to protect Petitioner from her alleged persecutors. Accordingly, this Court should only overturn the lower court s decision if the record would compel them that this was not the case. Given the evidence provided by DHS regarding San Martino s willingness and ability to protect Petitioner and the unfilled evidentiary gap created by Petitioner in not reporting the attacks against her to San Martino authorities, Petitioner has not met this burden. Accordingly, the Fourteenth Circuit s decision should be affirmed. 1. San Martino s enactment of effective hate crime legislation evidences both its willingness and ability to protect Petitioner and those in similar circumstances. As a threshold matter, the record highlights the extent to which the government of San Martino has demonstrated both its willingness and ability to combat persecution against transgender individuals. The enactment of protective legislation or prosecution of persecutors is particularly expressive of a government s willingness to control private actors. See e.g. Ritonga v. Holder, 633 F.3d 971, (10th Cir. 2011) (finding that the Indonesian s government s active prosecution of those who perpetrate religiously-motivated crimes overrides notions of governmental unwillingness or inability). Importantly, legislation is not dispositive in determining a government s willingness and ability; enacted laws can be empty gestures, irrelevant to actual persecution, unenforced by the government, or otherwise ineffective. Sarhan v. Holder, 658 F.3d 649, 660 (7th Cir. 2011); see Vitug v. Holder, 723 F.3d 1056, 1066 (9th Cir. 17

29 2013). In that sense, though legislation may indicate willingness, it does not necessarily indicate ability. The San Martino government enacted comprehensive hate crime legislation as part of a direct effort to prevent the form of persecution claimed by the petitioner and to incapacitate ACCE, the group allegedly responsible for that persecution. R. at 5. The enactment of this legislation had a powerful signaling effect both within San Martino as well as internationally, as evidenced by the widespread praise received from Human Rights Groups worldwide. R. at 16. Additionally, the record does not contain any compelling evidence that the San Martino hate crime legislation has been anything but effective. Per the 2013 San Martino Report, the legislation substantially reduced the number of hate crimes in San Martino as well as membership in ACCE. Similarly, there is no indication that the government of San Martino has any intention to repeal or limit the efficacy of the hate crime legislation in the future. See Fiadjoe v. AG, 411 F.3d 135 (3d Cir. 2005) (noting that even though a form of ritual slavery was banned in Ghana, elements of the Ghanian government were unwilling to enforce that law). The success of San Martino s efforts is not undermined by the fact that ACCE s membership numbers are not known with certainty and limited hate crimes continue to occur in San Martino. Critically, a government that is unable to control criminal activity cannot mean anything and everything short of a crime-free society, but refers to a government that has demonstrated complete helplessness. Saldana v. Lynch, 820 F.3d 970, 977 (8th Cir. 2016). No evidence on the record would compel a reasonable adjudicator that San Martino is helpless in its efforts to combat ACCE and hate crimes in general. In fact, San Martino has had little difficulty in maintaining control over ACCE, given the dearth of attacks in the five years since the 2009 legislation. Furthermore, though official estimates of ACCE s membership numbers 18

30 vary (between 5,000 and 35,000 members), either assessment represents a marginal portion of the total San Martino populace (between.001% and.007% of San Martino s 5 million residents). R. at 5. The record does not indicate that this marginal group maintains any geographic control over the country. Additionally, the age of the San Martino Country Report does not discount its central relevance to Petitioner s case. Typically, Department of State Country Reports provide the most appropriate and perhaps the best resource for information on political situations in foreign nations. Sowe v. Mukasey, 538 F.3d 1281, 1285 (9th Cir. 2008) (internal citations omitted). In Petitioner s case, the 2013 Country Report provides contemporaneous evidence of the San Martino government s response to this form of persecution during Petitioner s alleged period of past persecution in the summer of To rely on more recent statistics would provide little evidence about the circumstances or the efficacy of governmental efforts at the time the events occurred. See e.g. Chawla v. Holder, 599 F.3d 998, 1009 (9th Cir. 2010) (noting that statistics contained in the 2003 Country Conditions Report for India reveal[ed] nothing about the circumstances or persecution of Sikhs living in New Delhi in 1998, the year in which persecution was alleged to occur). Ultimately, San Martino s enactment of comprehensive hate crime legislation evidences its willingness and ability to protect Petitioner and those in similar circumstances. It has significantly reduced the number of hate crimes committed in San Martino and has inhibited the group Petitioner claims was responsible for the attacks. Nothing on the record undermines its success or credibility. 19