NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 25 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
BRIANT STEVEN AREVALO-CHIVAS, No. 21-1235 Agency No. Petitioner, A212-997-345 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted April 11, 2023** San Francisco, California
Before: PAEZ, CLIFTON, and H.A. THOMAS, Circuit Judges. Partial Concurrence and Partial Dissent by Judge PAEZ.
Briant Steven Arevalo-Chivas (Arevalo) petitions for review of a Board
of Immigration Appeals (BIA) order dismissing his appeal from the denial by an
immigration judge (IJ) of his application for asylum, withholding of removal
and relief under the Convention Against Torture (CAT). We have jurisdiction
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). under 8 U.S.C. § 1252. We deny the petition for review.
1. Arevalo has not established that the BIA applied the wrong
standard of review. The BIA correctly reviewed the IJ’s factual findings for
clear error, and there is no indication in the record that the BIA improperly
deferred to the IJ’s legal judgments. See 8 C.F.R. § 1003.1(d)(3)(i)–(ii).
2. The agency did not err in denying Arevalo’s claims for asylum and
withholding of removal. First, the agency was “not require[d] to discuss every
piece of evidence” of past persecution and nexus to a protected ground. See
Almaghzar v. Gonzales, 457 F.3d 915, 922 (9th Cir. 2006). As nothing in the
record “indicates a failure to consider all the evidence,” the statement that the IJ
considered the entire record is sufficient. See Cole v. Holder, 659 F.3d 762,
771–72 (9th Cir. 2011). Second, the agency’s conclusion that Arevalo did not
establish past persecution is consistent with our precedent. See Wakkary v.
Holder, 558 F.3d 1049, 1059–60 (9th Cir. 2009); Gu v. Gonzales, 454 F.3d
1014, 1020–21 (9th Cir. 2006); Hoxha v. Ashcroft, 319 F.3d 1179, 1181 (9th
Cir. 2003). Finally, the BIA did not err in avoiding the non-dispositive issue of
whether Arevalo’s proposed particular social group, Salvadoran youth enrolled
in college who are perceived to be gang affiliated, was cognizable. See INS v.
Bagamasbad, 429 U.S. 24, 25 (1976) (“[A]gencies are not required to make
findings on issues [which are] unnecessary to the results they reach.”).
3. Substantial evidence supports the agency’s denial of Arevalo’s
2 CAT claim. The agency correctly concluded that Arevalo’s testimony and
country conditions evidence did not establish a likelihood of future torture with
the consent or acquiescence of public officials. See Mairena v. Barr, 917 F.3d
1119, 1126 (9th Cir. 2019); Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th
Cir. 2010).
4. For the reasons described above, the agency did not violate
Arevalo’s due process rights.
PETITION DENIED. 1
1 The temporary stay of removal remains in place until the mandate issues. The motion to stay removal (Dkt. 1) is otherwise denied.
3 FILED Arevalo-Chivas v. Garland, No. 21-1235 APR 25 2023 MOLLY C. DWYER, CLERK Paez, J., concurring in part and dissenting in part. U.S. COURT OF APPEALS
I concur in the majority’s disposition of Arevalo-Chivas’s allegations of past
persecution and Convention Against Torture claim, but I respectfully dissent from
the majority’s decision to uphold the agency’s denial of Arevalo-Chivas’s asylum
and withholding of removal claims for failure to establish a well-founded fear of
future persecution. In my view, the Board of Immigration Appeals (“BIA”) and
the Immigration Judge (“IJ”) failed to give “reasoned consideration” to
“potentially dispositive testimony and documentary evidence” when considering
nexus for these claims. See Cole v. Holder, 659 F.3d 762, 771–72 (9th Cir. 2011).
Therefore, I would grant the petition in part and remand for further consideration
of nexus and to address the elements of Arevalo-Chivas’s asylum and withholding
of removal claims as appropriate.
We review the BIA’s factual findings for substantial evidence. Arteaga v.
Mukasey, 511 F.3d 940, 944 (9th Cir. 2007). Substantial evidence requires that the
agency’s decision be supported by “reasonable, substantial, and probative evidence
on the record.” Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1056 (9th Cir. 2006)
(citation omitted). “We do not require the BIA to ‘discuss each piece of evidence
submitted’” and “‘[w]hen nothing in the record or the BIA’s decision indicates a
failure to consider all the evidence,’ we will rely on the BIA’s statement that it properly assessed the entire record.” Martinez v. Clark, 36 F.4th 1219, 1230 (9th
Cir. 2022) (quoting Cole, 659 F.3d at 771). “But when there is an indication that
something is amiss, like if the BIA ‘misstat[es] the record’ or ‘fail[s] to mention
highly probative or potentially dispositive evidence,’ we do not credit its use of a
‘catchall phrase’ to the contrary. Id. at 1231 (quoting Cole, 659 F.3d at 771–72);
see also Flores Molina v. Garland, 37 F.4th 626, 637–38 (9th Cir. 2022) (holding
that the BIA erred in “failing to address highly probative evidence” and
“selectively” citing the record to support its contention when determining whether
petitioner established a well-founded fear of future persecution).
Here, the IJ and BIA disregarded Arevalo-Chivas’s “highly probative”
declaration and country conditions evidence that supported his nexus theory that he
would face future persecution on account of being a “Salvadoran youth enrolled in
college [and] perceived to be gang affiliated.” See Cole, 659 F.3d at 771–72. The
IJ and BIA unexplainably ignored Arevalo-Chivas’s “potentially dispositive
testimony” that the police officers confronted him because they believed he was a
gang member and that his assailants stripped him naked to search for tattoos to
determine whether he was gang affiliated. See id.; see also Kebede v. Ashcroft,
366 F.3d 808, 812 (9th Cir.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 25 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
BRIANT STEVEN AREVALO-CHIVAS, No. 21-1235 Agency No. Petitioner, A212-997-345 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted April 11, 2023** San Francisco, California
Before: PAEZ, CLIFTON, and H.A. THOMAS, Circuit Judges. Partial Concurrence and Partial Dissent by Judge PAEZ.
Briant Steven Arevalo-Chivas (Arevalo) petitions for review of a Board
of Immigration Appeals (BIA) order dismissing his appeal from the denial by an
immigration judge (IJ) of his application for asylum, withholding of removal
and relief under the Convention Against Torture (CAT). We have jurisdiction
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). under 8 U.S.C. § 1252. We deny the petition for review.
1. Arevalo has not established that the BIA applied the wrong
standard of review. The BIA correctly reviewed the IJ’s factual findings for
clear error, and there is no indication in the record that the BIA improperly
deferred to the IJ’s legal judgments. See 8 C.F.R. § 1003.1(d)(3)(i)–(ii).
2. The agency did not err in denying Arevalo’s claims for asylum and
withholding of removal. First, the agency was “not require[d] to discuss every
piece of evidence” of past persecution and nexus to a protected ground. See
Almaghzar v. Gonzales, 457 F.3d 915, 922 (9th Cir. 2006). As nothing in the
record “indicates a failure to consider all the evidence,” the statement that the IJ
considered the entire record is sufficient. See Cole v. Holder, 659 F.3d 762,
771–72 (9th Cir. 2011). Second, the agency’s conclusion that Arevalo did not
establish past persecution is consistent with our precedent. See Wakkary v.
Holder, 558 F.3d 1049, 1059–60 (9th Cir. 2009); Gu v. Gonzales, 454 F.3d
1014, 1020–21 (9th Cir. 2006); Hoxha v. Ashcroft, 319 F.3d 1179, 1181 (9th
Cir. 2003). Finally, the BIA did not err in avoiding the non-dispositive issue of
whether Arevalo’s proposed particular social group, Salvadoran youth enrolled
in college who are perceived to be gang affiliated, was cognizable. See INS v.
Bagamasbad, 429 U.S. 24, 25 (1976) (“[A]gencies are not required to make
findings on issues [which are] unnecessary to the results they reach.”).
3. Substantial evidence supports the agency’s denial of Arevalo’s
2 CAT claim. The agency correctly concluded that Arevalo’s testimony and
country conditions evidence did not establish a likelihood of future torture with
the consent or acquiescence of public officials. See Mairena v. Barr, 917 F.3d
1119, 1126 (9th Cir. 2019); Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th
Cir. 2010).
4. For the reasons described above, the agency did not violate
Arevalo’s due process rights.
PETITION DENIED. 1
1 The temporary stay of removal remains in place until the mandate issues. The motion to stay removal (Dkt. 1) is otherwise denied.
3 FILED Arevalo-Chivas v. Garland, No. 21-1235 APR 25 2023 MOLLY C. DWYER, CLERK Paez, J., concurring in part and dissenting in part. U.S. COURT OF APPEALS
I concur in the majority’s disposition of Arevalo-Chivas’s allegations of past
persecution and Convention Against Torture claim, but I respectfully dissent from
the majority’s decision to uphold the agency’s denial of Arevalo-Chivas’s asylum
and withholding of removal claims for failure to establish a well-founded fear of
future persecution. In my view, the Board of Immigration Appeals (“BIA”) and
the Immigration Judge (“IJ”) failed to give “reasoned consideration” to
“potentially dispositive testimony and documentary evidence” when considering
nexus for these claims. See Cole v. Holder, 659 F.3d 762, 771–72 (9th Cir. 2011).
Therefore, I would grant the petition in part and remand for further consideration
of nexus and to address the elements of Arevalo-Chivas’s asylum and withholding
of removal claims as appropriate.
We review the BIA’s factual findings for substantial evidence. Arteaga v.
Mukasey, 511 F.3d 940, 944 (9th Cir. 2007). Substantial evidence requires that the
agency’s decision be supported by “reasonable, substantial, and probative evidence
on the record.” Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1056 (9th Cir. 2006)
(citation omitted). “We do not require the BIA to ‘discuss each piece of evidence
submitted’” and “‘[w]hen nothing in the record or the BIA’s decision indicates a
failure to consider all the evidence,’ we will rely on the BIA’s statement that it properly assessed the entire record.” Martinez v. Clark, 36 F.4th 1219, 1230 (9th
Cir. 2022) (quoting Cole, 659 F.3d at 771). “But when there is an indication that
something is amiss, like if the BIA ‘misstat[es] the record’ or ‘fail[s] to mention
highly probative or potentially dispositive evidence,’ we do not credit its use of a
‘catchall phrase’ to the contrary. Id. at 1231 (quoting Cole, 659 F.3d at 771–72);
see also Flores Molina v. Garland, 37 F.4th 626, 637–38 (9th Cir. 2022) (holding
that the BIA erred in “failing to address highly probative evidence” and
“selectively” citing the record to support its contention when determining whether
petitioner established a well-founded fear of future persecution).
Here, the IJ and BIA disregarded Arevalo-Chivas’s “highly probative”
declaration and country conditions evidence that supported his nexus theory that he
would face future persecution on account of being a “Salvadoran youth enrolled in
college [and] perceived to be gang affiliated.” See Cole, 659 F.3d at 771–72. The
IJ and BIA unexplainably ignored Arevalo-Chivas’s “potentially dispositive
testimony” that the police officers confronted him because they believed he was a
gang member and that his assailants stripped him naked to search for tattoos to
determine whether he was gang affiliated. See id.; see also Kebede v. Ashcroft,
366 F.3d 808, 812 (9th Cir. 2004) (finding that the IJ erred in ignoring one of the
persecutor’s statements to the petitioner during an attack when determining nexus);
Deloso v. Ashcroft, 393 F.3d 858, 864 (9th Cir. 2005) (“An applicant need not
2 present direct evidence of a persecutor’s motives if there is compelling
circumstantial evidence.”) (citation omitted). Furthermore, both the BIA and IJ
failed to consider Arevalo-Chivas’s country conditions evidence that supported his
testimony that the El Salvadoran government had directed police officers and
security forces to target perceived gang members, even if innocent, no matter the
cost. See Ratnam v. I.N.S., 154 F.3d 990, 995 (9th Cir. 1998) (establishing that the
BIA must consider country conditions reports when determining nexus); see also
Flores Molina, 37 F.4th at 637–38 (requiring reversal where the BIA ignored
country conditions evidence “contextualiz[ing]” the petitioner’s “specific fears of
persecution”).
Because the BIA and IJ ignored critical record evidence when analyzing
Arevalo-Chivas’s nexus claim, the agency failed to give “reasoned consideration”
to his likelihood of future persecution on account of being perceived as a gang
member. See Cole, 659 F.3d at 771–73. Therefore, I would hold that the “decision
cannot stand” and that remand is required. See Castillo v. Barr, 980 F.3d 1278,
1283 (9th Cir. 2020).