                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 02-3692
                                  ___________

Vilma Menendez-Donis,                *
                                     *
             Petitioner,             *
                                     *
       v.                            * Petition for Review of a
                                     * Decision of the Board of
John Ashcroft, Attorney General      * Immigration Appeals.
of the United States,                *
                                     *
             Respondent.             *
                                ___________

                            Submitted: December 19, 2003

                                 Filed: February 19, 2004
                                  ___________

Before MORRIS SHEPPARD ARNOLD, LAY, and RILEY, Circuit Judges.
                         ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

     Vilma Menendez-Donis petitions for review of an order of the Board of
Immigration Appeals (BIA) affirming an immigration judge's (IJ's) denial of asylum.
We affirm the BIA's decision.

                                      I.
      Ms. Menendez-Donis is a native of Guatemala. She fled to the United States
after being beaten and gang raped in her home, entering the country without
inspection. She conceded that she was deportable but sought asylum on the ground
of political persecution. See 8 U.S.C. §§ 1101(a)(42)(A), 1158.

       Four years before Ms. Menendez-Donis was attacked, her husband, a cattle
farmer, was approached by rebel guerillas and asked for financial support. He refused
and was later found shot to death. Ms. Menendez-Donis believes that the guerrillas
killed him because they suspected him of being a government sympathizer. Later, her
husband's uncle was found shot, and in the period before her rape her neighbors
repeatedly suggested to Ms. Menendez-Donis that she was in danger from rebels.
After Ms. Menendez-Donis fled to the United States, her nineteen-year-old son was
found beaten to death near her former home in Guatemala. Ms. Menendez-Donis
maintains that her rapists were guerillas who attacked her because they believed that
she was a government sympathizer.

       Persons seeking political asylum must show that they have a well-founded fear
of being persecuted on the basis of political beliefs or imputed political beliefs if they
return to their country. See Behzadpour v. United States, 946 F.2d 1351, 1352-53
(8th Cir. 1991); see also 8 U.S.C. § 1101(a)(42)(A). Asylum-seekers who
demonstrate past political persecution presumptively have a well-founded fear of
future persecution, and the burden shifts to the government to show that such a fear
is objectively unreasonable. See Cigaran v. Heston, 159 F.3d 355, 357 (8th Cir.
1998).

       The IJ concluded that Ms. Menendez-Donis failed to show that the attack on
her was motivated by her actual or imputed political beliefs. Ms. Menendez-Donis
could not see her attackers, who were masked. They did not identify themselves;
indeed, they did not say anything to Ms. Menendez-Donis other than to threaten to
kill her. She testified that she may have recognized the voice of one of the attackers
as being that of a family acquaintance associated with the guerillas, but she could not
positively identify him. The IJ also discounted the reports that Ms. Menendez-Donis

                                           -2-
heard from neighbors before she was raped as simple rumors. Given the four-year
time lapse between her husband's death and the attack on her, as well as the lack of
certainty as to the identity of the rapists, the IJ found that the attack on
Ms. Menendez-Donis was an instance of ordinary crime not political persecution.

        The IJ went on to find that there was no basis for a reasonable belief that
Ms. Menendez-Donis would be persecuted were she to return to Guatemala. There
was no direct evidence that the rebels were responsible for the death of
Ms. Menendez-Donis's husband. Even if he was killed in retaliation by the guerrillas,
the IJ found that the civil war in Guatemala was over and that there was no evidence
that the rebels were engaged in retaliation against former opponents. He based his
findings on reports by the State Department and human rights organizations
describing the current situation in Guatemala. Pursuant to 8 C.F.R. § 3.1(a)(7) (2003)
(now codified at 8 C.F.R. 1003.1(a)(7), see 68 Fed. Reg. 9824, 9830 (Feb. 28, 2003)),
the BIA adopted the IJ's opinion as its final decision.

                                          II.
       Before the passage of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, the applicable statute required courts reviewing BIA
decisions to uphold factual determinations that were "supported by reasonable,
substantial, and probative evidence on the record considered as a whole." 8 U.S.C.
§ 1105a(a)(4) (1994). The currently applicable section states that on review
"administrative findings of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B). Despite
the fact that the current language appears to be narrower than the previous language,
we have declined to treat the 1996 amendment as working any material change to the
standard of review. See Navarijo-Barrios v. Ashcroft, 322 F.3d 561, 562 (8th Cir.
2003). As other circuits have noted, Congress seems to have drawn the language for
the new statute directly from INS v. Elias-Zacarias, 502 U.S. 478, 481 & n.1, 483-84
(1992), a decision construing the former statute. See, e.g., Sevoian v. Ashcroft,

                                         -3-
290 F.3d 166, 171 (3d Cir. 2002). We thus apply the so-called substantial evidence
standard outlined in the Elias-Zacarias opinion. Cf. Tang v. INS, 223 F.3d 713, 718
(8th Cir. 2000).

       The substantial evidence standard was originally imported into administrative
law from cases dealing with the review of jury verdicts. See 2 Kenneth Culp Davis
& Richard J. Pierce, Jr., Administrative Law Treatise 174-75 (3d ed. 1994) (citing
ICC v. Louisville & Nashville, R.R. Co., 227 U.S. 88, 94 (1912)); see also Robert L.
Stern, Review of Findings of Administrators, Judges and Juries: A Comparative
Analysis, 58 Harv. L. Rev. 70, 74-75 (1944). Hence, it has always involved a large
amount of deference to the relevant fact-finder. For example, it is a more deferential
standard than the "clearly erroneous" standard that we use for reviewing factual
determinations by lower court judges. See, e.g., United States v. Abad, 350 F.3d 793,
797 (8th Cir. 2003). Under that standard, we can overturn factual findings that we
conclude are clearly wrong even though they are not unreasonable. In contrast, under
the substantial evidence standard we cannot substitute our determination for that of
the administrative fact-finder just because we believe that the fact-finder is clearly
wrong. Cf. Feleke v. INS, 118 F.3d 594, 598 (8th Cir. 1997); see also 2 Davis &
Pierce, supra, at 174. Rather, before we can reverse we must find that it would not
be possible for any reasonable fact-finder to come to the conclusion reached by the
administrator. See Elias-Zacarias, 502 U.S. at 481 & n.1, 483-84.

       In 1951, the Supreme Court clarified the substantial evidence standard for
reviewing the decision of an administrative agency by holding that it required a
review of the record as a whole. See Universal Camera Corp. v. NLRB, 340 U.S. 474,
487-88 (1951). When reviewing a jury verdict, a court ignores all evidence contrary
to the verdict and then draws every reasonable inference in favor of the verdict from
the remaining evidence. In the administrative setting, however, Universal Camera
states that "the substantiality of the evidence must take into account whatever in the
record fairly detracts from its weight." Id. at 488. Thus, while we do not review the

                                         -4-
record to come to our own conclusions that we then measure against an administrative
fact-finder's determinations (as in the review of judicial fact-finding) we are required
to consider all of the evidence when drawing our conclusions about the
reasonableness of an administrator's findings of fact.

      In order to overturn the administrative findings, therefore, we must conclude
not only that a persuasive case has been made for the opposite position, but that any
reasonable fact-finder would be persuaded by it. See Elias-Zacarias, 502 U.S. at 481
& n.1, 483-84. The standard thus focuses on the hypothetical fact-finder who would
refuse to be persuaded by the argument against the factual findings: If such a
hypothetical fact-finder could do so reasonably, then the findings must be upheld.
The hypothetical fact-finder's obstinacy must be grounded in a proper amount of
evidence: "Substantial evidence is more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion."
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938); see Shipley v. Arkansas
Blue Cross and Blue Shield, 333 F.3d 898, 901 (8th Cir. 2003). Substantial evidence,
however, does not mean a preponderance of the evidence. Leonard v. Southwestern
Bell Corp. Disability Income Plan, 341 F.3d 696, 701 (8th Cir. 2003).

       In other words, a reviewing court must uphold factual findings if three
conditions exist. First, the factual findings must be supported by some substantial
level of evidence, which need not rise to the level of a preponderance. Second, the
evidence must be substantial when the entire record is examined: Contrary evidence
may not simply be ignored on review. Finally, the evidence must be such that it
would be possible for a reasonable fact-finder to reach the same conclusions that the
administrative fact-finder did. If any of these conditions is not met, the administrative
decision must be reversed.




                                          -5-
                                          III.
       Applying this standard to Ms. Mendez-Donis's case we feel obliged to uphold
the IJ's decision. Given the inconsistency in Ms. Menendez-Donis's testimony and
information from the State Department and elsewhere, there was more than a scintilla
of evidence supporting the IJ's conclusion that she did not have a well-founded fear
of future persecution. Furthermore, the IJ’s findings are consistent with the
cumulative weight of the gaps in Ms. Menendez-Donis's testimony, namely, the
unknown circumstances of her son's death, and the lack of clear evidence as to the
identity of her attackers or the motives for their attacks. Substantial evidence on the
record as a whole thus supports the IJ's conclusion. Perhaps a reasonable fact-finder
could have found in Ms. Menendez-Donis's favor, but that is not the question here.
Applying the appropriate standard, we cannot say that every reasonable fact-finder
would come to a conclusion different from the one that the IJ reached.

       Since we must uphold the IJ's determination that Ms. Menendez-Donis was not
subject to previous political persecution, we also must reject her claim that she is
entitled to humanitarian asylum. Even if asylum-seekers lack a well-founded fear of
future persecution, they can still be eligible for so-called "humanitarian asylum" if the
past persecution was especially atrocious. Franscois v. INS, 283 F.3d 926, 930-31
(8th Cir. 2002). While we do not doubt that Ms. Menendez-Donis was the victim of
a brutal crime, we are required to affirm the IJ's finding that it was not an act of
political persecution.

                                       IV.
      We affirm the BIA's decision for the reasons indicated.




                                          -6-
LAY, Circuit Judge, dissenting.

      Unlike the majority, I feel no obligation to uphold the agency’s decision, which
essentially provides that politically motivated death threats to the Petitioner and her
family, followed by the consequent murder of three of the Petitioner’s family
members and Petitioner’s own brutal gang rape, is not “persecution” within the
meaning of the Immigration and Nationality Act. See 8 U.S.C. § 1101(a)(42)(A).
Because I believe that Ms. Menendez-Donis’s testimony compels the conclusion that
she suffered past persecution on the basis of her imputed political beliefs, I
respectfully dissent.

      At her hearing, Menendez-Donis described a pattern of violence resulting from
her and her family’s refusal to succumb to guerilla demands.1 Menendez-Donis’s
husband, Abel Rame Escobar-Solares, and her husband’s uncle, Fernando Vasquez
Escobar, were partners in a cattle business in a small town outside Chiquimulilla,
Guatemala. Sometime before 1992, Solares and Escobar were approached by
members of Fuerzas Armadas Rebeldes (“FAR”), a Guatemalan guerilla group, and
asked to participate in, and financially support, the organization. Solares, Escobar,
and their families (collectively “the family”) refused to support the FAR guerillas.
The FAR guerillas interpreted this refusal as evidence that they supported the
Guatemalan government. Thereafter, FAR repeatedly threatened to kill the men if
they would not support FAR. The men did not give in to the guerillas’ demands.

       On December 10, 1992, Menendez-Donis’s husband, Solares, was murdered
while he lay sleeping in his hammock outside his home. For two years after Solares’
death, Escobar and the family continued to receive repeated threats from FAR to the



      1
       Menendez-Donis was found credible by the IJ, and her testimony must
therefore be accepted as undisputed fact. See, e.g., Yazitchian v. INS, 207 F.3d 1164,
1168 (9th Cir. 2000).

                                         -7-
effect that they would be killed if they did not support the guerillas. Escobar did not
give in to FAR’s demands. In October of 1994, Escobar was murdered.

       About three months after the death of her husband, Menendez-Donis personally
received a note, signed by FAR, threatening to kill her if she refused to give the
guerillas financial support. After the death of Escobar, she inherited the cattle farm
and was therefore a primary target for the FAR guerillas, who wanted money. Over
the next few years Menendez-Donis continued to receive threats from FAR,
communicated to her through others in the community, that she and her family would
be killed if she refused to give FAR support. Menendez-Donis did not give in to the
guerillas’ demands.

      Consequently, on April 20, 1997, Menendez-Donis was beaten and serially
raped by three individuals who came into her home, vowing to kill her. Because the
attackers were wearing masks, Menendez-Donis could not visually identify them, but
she thought she recognized the voice of one of her attackers as an individual that her
husband had previously warned her was a FAR guerilla.

       Menendez-Donis survived the attack, and with the help of her brother she fled
to Guatemala City where she received medical treatment. Believing she would be
killed by FAR if she remained in Guatemala, she sought asylum in the United States.
Even while in this country, the threats and violence against her family by FAR
guerillas have continued. A year after she fled Guatemala, her children received
another written death threat. Her son was later beaten to death.

       I do not believe this evidence supports the IJ’s conclusion that her rape was an
“incident of common crime.” To the contrary, I believe that any reasonable fact-
finder would agree that the attack on Menendez-Donis was consistent with the pattern
of violence against her and her family for failing to comply with the demands of FAR
guerillas, who viewed them as government loyalists.

                                         -8-
      The BIA has previously cautioned against holding petitioners to an impossible
standard of proof:

      Persecutors may have differing motives for engaging in acts of
      persecution, some tied to reasons protected under the Act and others not.
      Proving the actual, exact reason for persecution or feared persecution
      may be impossible in many cases. An asylum applicant is not obliged
      to show conclusively why persecution has occurred or may occur.

             . . . Rather, an asylum applicant bears the burden of establishing
      facts on which a reasonable person would fear that the danger arises on
      account of his . . . political opinion.

In re S-P, 21 I & N Dec. 486, 489-90 (1996) (quotations and citations omitted).
While Menendez-Donis may not have been able to conclusively prove that she was
raped as retaliation for failing to comply with the guerillas’ demands, I believe this
is the only inference a reasonable fact-finder could draw from her testimony.

       Once this political motive is established, there are no other obstacles to
Menendez-Donis’s asylum eligibility. If politically motivated, there is no question
that the threats and violence described above constitute past persecution. See Del
Carmen Molina v. INS, 170 F.3d 1247, 1249 (9th Cir. 1999) (holding that “Molina’s
actual, uncontradicted, and credible testimony [of the murder of her cousin and
subsequent threats of violence against her family] evidence[d] past persecution”);
Garrovillas v. INS, 156 F.3d 1010, 1016 (9th Cir. 1998) (holding that the receipt of
three death threat notes in three months as a result of the petitioner’s affiliation with
a political group constituted past persecution); Sangha v. INS, 103 F.3d 1482, 1487
(9th Cir.1997) (finding past persecution where a terrorist group wanted to recruit
petitioner and threatened him with death); Lopez-Galarza v. INS, 99 F.3d 954, 959
(9th Cir. 1996) (holding that rape on account of an imputed political opinion
constitutes past persecution).



                                          -9-
       Furthermore, I have no hesitation in concluding that this past persecution was
sufficiently severe and atrocious to qualify Menendez-Donis for humanitarian asylum,
see Francois v. INS, 283 F.3d 926, 931 (8th Cir. 2002), which is available regardless
of the likelihood of future persecution. See Belayneh v. INS, 213 F.3d 488, 491 (9th
Cir. 2000) (“[R]ape may constitute an atrocious form of persecution.”); see also Lal
v. INS, 255 F.3d 998, 1008 (9th Cir. 2001) (same); Lopez-Galarza, 99 F.3d at 962-63
(same).

      For these reasons, I believe the BIA’s decision is not supported by substantial
evidence and Menendez-Donis should be found eligible for asylum.
                      ______________________________




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