Flores-Avila v. Garland

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 27 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

KENY MARIA FLORES-AVILA; CELIA No. 22-1277 ELIZABETH RAMIREZ-FLORES, Agency Nos. A213-137-879 Petitioners, A213-137-880 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Argued and Submitted December 6, 2023 Pasadena, California

Before: WARDLAW and BUMATAY, Circuit Judges, and KENNELLY, District Judge.** Dissent by Judge BUMATAY.

Keny Maria Flores-Avila and her daughter, Celia Elizabeth Ramirez-Flores

(“Petitioners”), natives and citizens of El Salvador, petition for review of the Board

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Matthew F. Kennelly, United States District Judge for the Northern District of Illinois, sitting by designation. of Immigration Appeals’ (“BIA”) decision affirming the Immigration Judge’s

(“IJ”) denial of their applications for asylum, withholding of removal, and

protection under the Convention Against Torture (“CAT”). We have jurisdiction

under 8 U.S.C. § 1252. We grant the petition and remand for further proceedings.

1. The agency’s lack-of-nexus finding is not supported by substantial

evidence in the record. The BIA adopted the IJ’s conclusion that the group of

gang members who broke into Flores-Avila’s home and threatened her were

motivated exclusively by their desire to use her and her daughter to further their

drug-trafficking scheme. The evidence compels the contrary conclusion: that the

men were motivated, at least in part, by Flores-Avila’s ties to her father, a former

Mara Salvatrucha (“MS”) gang member. Our precedent is clear that “economic

extortion on the basis of a protected characteristic can constitute persecution,”

Ayala v. Sessions, 855 F.3d 1012, 1020 (9th Cir. 2017), and we have long

recognized that “persecutors are hardly likely to provide their victims with

affidavits” regarding their motives, Bolanos-Hernandez v. INS, 767 F.2d 1277,

1285 (9th Cir. 1984). Moreover, “compelling circumstantial evidence” of motive

“is sufficient.” Gafoor v. I.N.S., 231 F.3d 645, 650 (9th Cir. 2000).

Flores-Avila’s testimony, deemed credible by the IJ, established that her

father was a former member of the MS gang in El Salvador who was murdered in

broad daylight two weeks after the gang gave him an ultimatum: “that he either

2 22-1277 join[] them again or he was going to pay with his own life.”

In the wake of her son’s death, Flores-Avila’s grandmother filed a police report

and collected information from neighbors to pass along to the police. Shortly after

telling her granddaughter that “they were about to capture the perpetrators,”

Flores-Avila’s grandmother was shot and killed while walking home from the

market.

Fearing for her safety following these murders, Flores-Avila moved to a

different town, controlled by a rival gang. Living carefully “under closed doors,”

Flores-Avila avoided any threats from the MS gang for five years. But on August

20, 2017 in the middle of the night, four or five armed men broke into Flores-

Avila’s home, where she was alone with her infant daughter. Based on their

tattoos, she recognized them as MS gang members, as opposed to the rival gang

that controlled her city. With a gun to infant Celia’s head, the gang members

demanded that Flores-Avila cooperate in their drug-trafficking endeavors by

permitting them to traffic drugs in her daughter’s diaper. Flores-Avila asked for

time to think it over, but the gang members said “you know what we did to your

dad and grandma, if you don’t do as we say, your daughter is next.”

Flores-Avila’s credible testimony shows that the men who broke into her

home knew who she was, and their invocation of the prior murders of Flores-

Avila’s family members shows that they sought her out in her new town because

3 22-1277 she was the daughter of their former gang member. While the MS gang could have

approached any mother with a baby to conceal drugs, they left the territory they

controlled and entered rival gang territory to seek out an individual because of her

father’s former gang affiliation. Thus, Flores-Avila presented evidence sufficient

to compel the conclusion that Flores-Avila’s connection to her father was both

“one central reason”—a nexus sufficient for asylum—and “a reason”—a nexus

sufficient for withholding of removal—for the persecution she suffered. See

Romero v. Lynch, 846 F.3d 351, 358 (9th Cir. 2017) (explaining that the

withholding statute uses only “a reason” in contrast to the asylum statute which

states “one central reason”).

2. The BIA adopted the IJ’s decision pursuant to Matter of Burbano, 20

I. & N. Dec. 872 (BIA 1994), including the IJ’s finding as to whether El Salvador

was unable or unwilling to control the MS gang members. 1 But, the IJ failed to

consider “highly probative or potentially dispositive evidence” regarding the

Salvadoran government’s willingness and ability to control the MS gang’s

violence. Antonio v. Garland, 58 F.4th 1067, 1078–79 (9th Cir. 2023). As such,

the decision “cannot stand.” Id. (quoting Cole v. Holder, 659 F.3d 762, 771–72

1 While Petitioners did not dedicate a section of their brief to this issue, they sufficiently raised the issue. Petitioners’ brief recognizes that the “unable or unwilling” analysis formed one of the bases for the IJ’s decision, acknowledges that standard as part of their burden, and explicitly argues that they have “shown [the] government’s inability to protect individuals from gang violence.”

4 22-1277 (9th Cir. 2011)).

Flores-Avila testified that law enforcement and the gangs are “united,”

describing that she had previously witnessed law enforcement pretend to arrest

gang members and subsequently release them. The IJ ignored this evidence of

corruption, finding instead that Flores-Avila simply “has seen the police arrest

people in the past who are suspected gang members.” The country conditions

evidence Flores-Avila submitted bolsters her evidence of corruption, explaining

that “gangs are infiltrating the security forces in order to influence investigations

against them,” and that “[c]omplaints to the police about gang extortion are

reportedly often relayed back to the gangs, which then exact severe retribution on

the complainants.” Moreover, the murder of Flores-Avila’s grandmother, as she

was cooperating with a police investigation into the gang, is further evidence of

corruption, particularly because law enforcement attributed the murder to robbery

even though her grandmother’s possessions, money, and jewelry had not been

taken.

Thus, although the IJ was obligated to consider the full record, including

Petitioner’s testimony and evidence of corruption, it failed to do so.2

2 The IJ’s opinion generally states that “Exhibits 1 through 4 were admitted into evidence and considered by the Court in making this decision,” and “the Court considered the testimony of the lead respondent.” AR 72. But where there is “any indication that the [agency] did not consider all of the evidence before it,” a

5 22-1277 3. The agency’s failure to consider the full record also requires remand

of Petitioners’ CAT claim. See Diaz-Reynoso v. Barr, 968 F.3d 1070, 1089 (9th

Cir. 2020) (holding CAT regulations require agency to consider all relevant

evidence). The IJ denied CAT relief solely based upon its conclusion that

Petitioners could not show government acquiescence. 3 See 8 C.F.R. §

1208.18(a)(1). But the same evidence that is relevant to the “unable or unwilling”

analysis in the asylum and withholding of removal contexts is relevant to

government acquiescence under CAT. See Parada v. Sessions, 902 F.3d 901, 916

(9th Cir. 2018) (holding that “[e]vidence showing widespread corruption of public

officials” is “highly probative” as to government acquiescence).

We therefore vacate the BIA’s determination that Petitioners are not eligible

for asylum, withholding, and CAT relief and remand to the agency for further

consideration of this claim.

PETITION GRANTED and REMANDED for further proceedings.

“catchall phrase” stating that the agency considered the full record “does not suffice.” Cole v. Holder, 659 F.3d 762, 771–72 (9th Cir. 2011). 3 The BIA purported to affirm based upon the IJ’s conclusion that Petitioners failed to establish “mistreatment rising to the level of past torture” or a likelihood of future torture sufficient to merit CAT relief. However, the IJ made no factual findings with regard to the likelihood of future torture, and thus provided no basis for the BIA to affirm. The BIA abused its discretion in concluding otherwise, and so we cannot rely on its finding of no likelihood of future torture to deny the petition for review as to CAT.

6 22-1277 FILED Flores-Avila, et al. v. Garland, No. 22-1277 DEC 27 2023 Bumatay, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

Because the majority relies on arguments never raised before our court to

grant this petition for review, I respectfully dissent.

1. Keny Maria Flores-Avila and her daughter’s asylum and withholding of

removal claims fail for the simple reason that they failed to challenge the

immigration judge’s (IJ) and Board of Immigration Appeals’ (BIA) conclusion that

the government of El Salvador is not unable or unwilling to control gang violence.

Ignoring this failure, the majority instead grants the petition and crafts Flores-Avila’s

arguments against the agency for her and her daughter. But, as the majority must

agree, their opening brief makes no arguments that the agency erred in its “unable

or unwilling” conclusion. Indeed, at oral argument, Flores-Avila’s counsel admitted

that the arguments were not raised in the opening brief. See Lopez-Vasquez v.

Holder, 706 F.3d 1072, 1079–80 (9th Cir. 2013) (issues not specifically raised and

argued in a party’s opening brief are waived). Undeterred, the majority relies on one

sentence describing the IJ’s findings and another sentence reciting the legal elements

of being a “refugee” in the opening brief. Needless to say, that’s not sufficient to

raise an argument.

Even if we were to review this argument, substantial evidence supports the

agency’s conclusion that the Salvadoran government is not unable or unwilling to

control gang violence. Flores-Avila and her daughter have the burden of proving the 1 “unable or unwilling to control” element. Baghdasaryan v. Holder, 592 F.3d 1018,

1023 (9th Cir. 2010).

In our circuit, Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1066–67 (9th

Cir. 2017), governs the factors for determining whether a government is unable or

unwilling to control attackers when a petitioner failed to report the past abuse to the

police, as here. Those factors are: (1) “demonstrating that a country’s laws or

customs effectively deprive the petitioner of any meaningful recourse to

governmental protection,” (2) describing “prior interactions with the authorities,”

(3) “showing that others have made reports of similar incidents to no avail,” (4)

“establishing that private persecution of a particular sort is widespread and well-

known but not controlled by the government,” or (5) “convincingly establishing that

reporting would have been futile or would have subjected [the petitioner] to further

abuse.” Id. (simplified).

The IJ painstakingly went through the Bringas-Rodriguez factors and

determined that Flores-Avila failed to show that El Salvador is unwilling or unable

to protect her and her daughter. First, the IJ relied on the U.S. Department of State’s

2018 El Salvador Human Rights Report to show El Salvador’s efforts to combat

gang violence. As the IJ concluded, the report “indicates that the Salvadoran

government has been aggressively attempting to alleviate its gang and general crime

problems in recent years.” The report also shows that “El Salvador has a functioning

2 police force, court system, and prison system” and imprisoned almost 18,000 gang

members.

Second, the IJ concluded that Flores-Avila did not have prior interactions with

authorities to justify her perceptions that the government would not assist her and

her daughter. On the contrary, after her father’s murder, Flores-Avila said that the

police investigated the incident and that her grandmother was pleased with the police

investigation’s progress. The same goes with her grandmother’s murder. The police

investigated the crime and even interviewed her.

Third, the IJ found that Flores-Avila failed to provide any evidence

demonstrating that the police didn’t respond to similar reports of crime. Neither

Flores-Avila nor the majority contest this finding.

Fourth, while the 2018 country report shows that El Salvador suffers from

widespread gang violence, the IJ found that the report reveals that the country is

taking positive steps to stop it. See Rahimzadeh v. Holder, 613 F.3d 916, 923 (9th

Cir. 2010) abrogated on other grounds by Bringas-Rodriguez, 850 F.3d at 1069–70

(looking to country reports to assess the likelihood that government officials would

control the persecution). Indeed, the report details the arrest and conviction of

numerous gang members for violent crimes. It also highlights that the government

is undertaking “extraordinary measures” to reduce homicides.

3 Fifth, the IJ said that Flores-Avila failed to establish that reporting the crimes

against her would have been futile or would have subjected her to further abuse. In

one incident, masked men barged into Flores-Avila’s home and demanded that she

allow them to use her child as a drug courier. While horrific, she did not report the

incident to the police. And it’s pure speculation to argue that the police would not

have investigated the incident or tried to protect her from these men.

Against this thorough analysis, the majority largely relies on Flores-Avila’s

speculative testimony of police corruption—based solely on her observations of

police officers arresting gang members but later seeing them later “freely roaming

around” and her uncorroborated beliefs on her grandmother’s murder. This doesn’t

respect our role to defer to the agency unless the agency’s conclusion is unsupported

by substantial evidence. On a fair review of the record, “the evidence here falls short

of compelling the conclusion that [Salvadoran] authorities would have been unable

or unwilling to help” Flores-Avila or her daughter. Velasquez-Gaspar v. Barr, 976

F.3d 1062, 1065 (9th Cir. 2020).

2. For the same reasons that the majority oversteps its role in the asylum and

withholding claims, it also overreaches on the Convention Against Torture (CAT)

claims. Once again, the record doesn’t compel the conclusion that Salvadoran public

officials would be “willfully blind” to Flores-Avila’s or her daughter’s torture at the

hands of gang members. See Del Cid Marroquin v. Lynch, 823 F.3d 933, 937 (9th

4 Cir. 2016). As the IJ found, the 2018 country report demonstrates that El Salvador

authorities enforce the laws against gang members as evidenced by the thousands

and thousands of gang members in prison. Indeed, Flores-Avila acknowledged that

she never had any problem with the police and that she witnessed the police arrest

gang members. The majority also ignores BIA’s dispositive ruling that she was not

subject to past torture and that any fear of future torture is “merely speculative.”

* * *

While I understand the sympathy this court shows to Flores-Avila and her

daughter, the law does not permit us to grant this petition. I respectfully dissent.