Cruz Barrera v. Bondi

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 5, 2025
• Docket: 23-2968
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED MAY 5 2025 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SERGIO CRUZ BARRERA, No. 23-2968 Agency No. Petitioner, A088-890-394 v. MEMORANDUM* PAMELA BONDI, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted April 4, 2025 Portland, Oregon

Before: BYBEE and FORREST, Circuit Judges, and RODRIGUEZ, District Judge.** Partial Concurrence and Partial Dissent by Judge RODRIGUEZ.

Petitioner Sergio Cruz Barrera is a native and citizen of El Salvador. He

petitions for review of the Board of Immigration Appeals’ (BIA) order affirming

an Immigration Judge’s denial of his application for statutory withholding of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Xavier Rodriguez, United States District Judge for the Western District of Texas, sitting by designation. removal and withholding of removal under the Convention Against Torture (CAT).

We have jurisdiction under 8 U.S.C. § 1252, and we grant the petition in part, deny

it in part, and remand for further proceedings consistent with this disposition.

“Where the BIA writes its own decision, as it did here, we review the BIA’s

decision, except to the extent it expressly adopts the IJ’s decision.” Diaz-Reynoso

v. Barr, 968 F.3d 1070, 1075–76 (9th Cir. 2020) (citation omitted). We review

factual findings for substantial evidence and legal conclusions de novo. Plancarte

Sauceda v. Garland, 23 F.4th 824, 831 (9th Cir. 2022). Under the substantial

evidence standard, we uphold the BIA’s determination “unless the evidence

compels a contrary conclusion.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028

(9th Cir. 2019).

1. To be eligible for statutory withholding of removal, Cruz Barrera must

“show that either the government or persons or organizations which the

government is unable or unwilling to control are responsible for the persecution.”

Reyes-Reyes v. Ashcroft, 384 F.3d 782, 788 (9th Cir. 2004) (internal quotation

marks, alterations, and citation omitted).1 This requirement relates to whether “the

1 Cruz Barrera proposes that we review the agency’s government-control holding de novo. The case on which Cruz Barrera relies, Kaur v. Wilkinson, 986 F.3d 1216, 1221 (9th Cir. 2021), is part of an acknowledged intra-circuit split on the standard of review for level-of-harm findings. See Lapadat v. Bondi, 128 F.4th 1047, 1055–56 (9th Cir. 2025). Even since Kaur was decided, we have consistently reviewed government-control findings for substantial evidence, e.g. Diaz v. Bondi, 129 F.4th 546, 554–55 (9th Cir. 2025), and continue to do so here.

2 23-2968 government both could and would provide protection.” J.R. v. Barr, 975 F.3d 778,

782 (9th Cir. 2020) (internal quotation marks and citation omitted).

The BIA emphasized the Salvadoran government’s attempt to prosecute

Antonio Castro, the person involved in threatening and attacking Cruz Barrera, as

evidence that the government was willing to protect Cruz Barrera. While

government responsiveness to reports of violence can undermine a petitioner’s

claim that the government is unwilling to control private persecutors, see, e.g.,

Truong v. Holder, 613 F.3d 938, 941 (9th Cir. 2010) (per curiam), such

responsiveness is not conclusive as to the government’s ability to protect a person

suffering persecution, see J.R., 975 F.3d at 782. “Willingness to control

persecutors notwithstanding, authorities may nevertheless be powerless to stop

them because of a lack of resources or because of the character or pervasiveness of

the persecution.” Id. (internal quotation marks, alterations, and citation omitted);

see also Diaz v. Bondi, 129 F.4th 546, 555–56 (9th Cir. 2025). The agency

overlooked important evidence that the Salvadoran government, even if willing to

help Cruz Barrera, may be unable to control his feared persecutors.

Begin with past persecution, which would establish a presumption of future

persecution. See Aden v. Wilkinson, 989 F.3d 1073, 1086 (9th Cir. 2021). The BIA

failed to acknowledge that the reason the government’s effort to prosecute Antonio

Castro failed—a “lack of evidence”—may have been caused by the government’s

3 23-2968 inability to control Cruz Barrera’s persecutors. The two witnesses—Cruz Barrera

and Ernesto Martinez—were unavailable to testify because they fled the country

under threat from the Castro family. Cf. J.R, 975 F.3d at 783 (holding the

government was unwilling to protect the petitioner, in part, because it withdrew

protection after he testified).

As to future persecution, the IJ drew incomplete inferences from certain

pieces of evidence while failing to mention others.2 First, the IJ noted that Cruz

Barrera’s brother successfully argued self-defense after killing Antonio Castro.

While that may be evidence that the judiciary is not corrupt or biased against Cruz

Barrera’s family, it is not evidence that the government is able to control the Castro

family in its consistent targeting of the Cruz Barrera family.

In addition, although the IJ acknowledged that Cruz Barrera’s “family has

received threats from the [Castro] family,” including threats that were “specific to

persons in the United States who would return,” the IJ did not mention those

threats in its future persecution analysis.3 Nor did the IJ acknowledge that Cruz

2 Although the BIA only analyzed past persecution, we look to the IJ’s analysis where the BIA implicitly incorporated the IJ’s future persecution findings by reference. See Diaz-Reynoso, 968 F.3d 1075–76. 3 The dissent argues that Cruz Barrera failed to prove that the Salvadoran government was unwilling or unable to protect him because he and his family did not report the threats they received. But the record indicates that Cruz Barrera reported that his “parents went to the police to report the threats but the police did nothing.” And in any event, the agency did not deny Cruz Barrera’s application on that ground. See Arrey v. Barr, 916 F.3d 1149, 1157 (9th Cir. 2019) (“We ‘cannot

4 23-2968 Barrera’s family has been forced to relocate and hire private security to protect

themselves. This evidence suggests that the situation is out of the government’s

control and Cruz Barrera would be forced, like his family, to resort to self-help to

protect himself from his feared persecutors.

Although the agency need not “individually identify and discuss every piece

of evidence in the record,” a decision that fails “‘to mention highly probative or

potentially dispositive evidence’ . . . cannot stand.” Hernandez v. Garland, 52

F.4th 757, 770–71 (9th Cir. 2022) (quoting Castillo v. Barr, 980 F.3d 1278, 1283

(9th Cir. 2020)). Accordingly, we remand for the agency to fully evaluate the

Salvadoran government’s ability to control Cruz Barrera’s feared persecutors.

2. On remand, the agency should also specifically address Dr. Boerman’s

expert declaration. Although the agency is not required to address expert testimony

unless it is “highly probative or potentially dispositive,” Hernandez, 52 F.4th at

770–71 (internal quotation marks, alteration, and citation omitted), the IJ did not,

as it stated it would, clarify the weight it afforded Dr. Boerman’s declaration in

reaching its conclusion.4

3. Finally, we deny the petition as to Cruz Barrera’s CAT claim. To be

affirm the BIA on a ground upon which it did not rely.’” (quoting Navas v. I.N.S., 217 F.3d 646, 658 n.16 (9th Cir. 2000))). 4 Although the dissent notes that Cruz Barrera’s counsel “believe[d]” the declaration was admitted with limited weight, the dissent does not dispute that the IJ never actually resolved the open evidentiary issue.

5 23-2968 eligible for CAT relief, Cruz Barrera must prove it is more likely than not that a

public official will acquiesce in his torture. See Barajas-Romero v. Lynch, 846

F.3d 351, 363 (9th Cir. 2017). Because Cruz Barrera has not presented evidence of

corruption, government involvement, or anything more than government

ineffectiveness at curbing violence, we deny the petition as to his CAT claim. See

Garcia-Milian v. Holder, 755 F.3d 1026, 1034 (9th Cir. 2014) (“A government

does not acquiesce in the torture of its citizens merely because it is aware of torture

but powerless to stop it.” (alteration and citation omitted)); Barajas-Romero, 846

F.3d at 363 (“Police ineffectiveness is not enough to establish an entitlement to

relief ‘absent evidence of corruption or other inability or unwillingness to oppose

criminal organizations.’” (quoting Garcia-Milian, 755 F.3d at 1034)).

PETITION GRANTED in part, DENIED in part, and REMANDED.

The Government shall bear the costs on appeal.

6 23-2968 FILED MAY 5 2025

Rodriguez, J., concurring in part and dissenting in part. MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

I concur with the majority’s denial of the petition as to protection under the

Convention Against Torture, but respectfully dissent from the majority’s remand as

to withholding of removal. In my view, it rests on a faulty theory of when a foreign

government is unable to control private persecutors and remand would be futile.

The majority rightly declines to find that the evidence does not compel a

contrary conclusion. Instead, it remands Cruz Barrera’s withholding of removal

claim because it concludes that the agency failed “to mention highly probative or

potentially dispositive evidence.” Cole v. Holder, 659 F.3d 762, 772 (9th Cir. 2011).

I do not believe any of the record evidence meets this standard. Start with

past persecution. The majority theorizes that the reason the El Salvadoran

government’s effort to prosecute Antonio Castro failed may have been caused by

that government’s inability to control Cruz Barrera’s persecutors, given that the two

witnesses—Cruz Barrera and Ernesto Martinez—were unable to testify because they

fled the country under threat from the Castro family. But the notion that a certain

piece of evidence “may” establish a finding defeats the assertion that this evidence

is either highly probative or potentially dispositive. And the record is devoid of

evidence that either Cruz Barrera or Ernesto Martinez reported the threats to the El

Salvadoran authorities or requested witness protection. True, “reporting persecution

to government authorities is not essential to demonstrating that the government is unable or unwilling to protect . . . from private actors.” Afriyie v. Holder, 613 F.3d

924, 931 (9th Cir. 2010), overruled on other grounds by Bringas-Rodriguez v.

Sessions, 850 F.3d 1051, 1070 (9th Cir. 2017). But even if these threats fall within

the scope of persecution, nothing suggests that reporting the threats would have been

“futile” or placed them in “greater danger.” Id. The El Salvadoran government

cannot be unable to control what it is not aware of. Cf. Doe v. Holder, 736 F.3d 871,

878 (9th Cir. 2013) (holding that the “inability to control persecutors is not

demonstrated simply because the police ultimately were unable to solve a crime or

arrest the perpetrators, where the asylum applicant failed to provide the police with

sufficiently specific information to permit an investigation or an arrest”).

The case that the majority relies on, J.R. v. Barr, 975 F.3d 778 (9th Cir. 2020),

makes this clear. There, we held that the El Salvadoran government was unwilling

to protect the petitioner because it withdrew witness protection after he testified

against gang members. Id. at 783. The petitioner had his fingers cut off, was shot

seven times, his son was murdered at home, and he received death threats due to his

testimony, after which the El Salvadoran trial judge told him to flee. Id. at 780. The

El Salvadoran government was clearly aware of the need for protection but failed to

provide it, even though the petitioner remained in El Salvador. Here, nothing

suggests that the El Salvadoran government was aware of a need to protect Cruz

Barrera or Ernesto Martinez, or that it rejected a request to do so.

2 23-2968 A government’s ability to protect against persecution in the witness protection

context also depends on cooperation from those who seek protection. Cruz Barrera

quickly fled El Salvador after his brutal attack.1 I do not see how one can flee on

their own accord, even if for good reason, but turn around and claim the government

was unable to protect them. The majority’s position implies that foreign

governments must proactively provide immediate witness protection without any

knowledge of threats on their life.

As to future persecution, the majority contends that the IJ ignored two pieces

of evidence that suggest the situation in El Salvador is “out of the government’s

control” and that Cruz Barrera would be forced to resort to self-help to protect

himself from feared persecutors. First, the majority points to the threats against Cruz

Barrera’s family from the Castro family, including threats that were “specific to

persons in the United States who would return.” Second, it highlights that Cruz

Barrera’s family were forced to relocate and hire private security to protect

themselves.

As the majority acknowledges, the IJ did mention the threats from the Castro

family. I suspect on remand the IJ will just repeat its factual finding in its “future

persecution analysis” and state it does not move the needle. This is because being

1 The record is silent as to when Ernesto Martinez fled, but it was Cruz Barrea’s burden to put on evidence to support his claim. 8 C.F.R. § 1208.16(b).

3 23-2968 subject to private threats alone is untethered to whether the El Salvadoran

government is unable to protect against them. I take the majority’s theory to be that

the El Salvadoran government’s failure to act on these threats may show an inability

to protect against private persecution. But the IJ did not find that the specific threats

were communicated to the El Salvadoran police. Even assuming they were

notified—a point on which the record is vague (“My parents had gone to tell the

police [referencing “any” threats] but [t]he police hasn’t done anything”) (“I believe

that his family threatened my parents. My parents went to the police to report the

threats but the police did nothing”),—nothing suggests that the El Salvadoran police

had enough information to investigate, much less make an arrest. Our cases do not

require a foreign government to “prevent all risk of harm.” Hussain v. Rosen, 985

F.3d 634, 648 (9th Cir. 2021) (emphasis in original). I would hesitate to impose

investigative and prosecutorial requirements on foreign governments without clear-

cut information that they are able to act appropriately.

Moreover, when crime occurred—Cruz Barrera’s heinous rape and his

brother’s shooting of Antonio Castro a few years later—the Salvadoran police did

investigate, arrest, and prosecute. See Hussain, 985 F.3d at 648 (holding that “a

country’s government is not ‘unable or unwilling’ to control violent nonstate actors

when it demonstrates efforts to subdue said groups”). The majority’s position

disregards the El Salvadoran authorities’ demonstrated ability to control Cruz

4 23-2968 Barrera’s persecutors in this case in favor of an unworkable standard to preemptively

deter crime.

Relocation and hiring private security itself is also no evidence of an inability

to protect against persecution, especially where, as here, the relocation was allegedly

due to threats that the record does not indicate were reported to the El Salvadoran

authorities. While the majority states Cruz Barrera’s family was forced to move,

this word does not appear in the agency’s findings. Instead, the record reveals they

moved due to unspecified threats from unknown individuals. This cannot be enough

to show the El Salvadoran government is unable to protect against persecution, and

instead demonstrates a volitional decision to upgrade their living situation.

I also disagree with the majority’s directive to the agency to “clarify the

weight it afforded Dr. Boerman’s declaration in reaching its conclusion.” The

majority does not point to any probative evidence in Dr. Boerman’s declaration, and

Cruz Barrera’s counsel before the IJ conceded that Dr. Boerman’s declaration was

admitted with limited weight. Given this concession, the IJ need not have

specifically addressed it.

5 23-2968