Hernandez-De Cornejo v. Blanche

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 11, 2026
• Docket: 25-3012
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 11 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GLADIS ESPERANZA HERNANDEZ-DE No. 24-2731 CORNEJO; E. P. C.-H.; L. D. C.-H., Agency Nos. A220-748-095 Petitioners, A220-748-096 A220-748-097 v.

TODD BLANCHE, Acting Attorney MEMORANDUM* General,

Respondent.

GLADIS ESPERANZA HERNANDEZ-DE No. 25-3012 CORNEJO; E. P. C.-H.; L. D. C.-H., Agency Nos. Petitioners, A220-748-095 A220-748-096 v. A220-748-097

TODD BLANCHE, Acting Attorney General,

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

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Submitted April 22, 2026** San Francisco, California Before: SCHROEDER, CHRISTEN, and FORREST, Circuit Judges.

Petitioner Gladis Hernandez-De Cornejo, a native and citizen of El Salvador,

petitions for review of two Board of Immigration Appeals (BIA) decisions in these

consolidated petitions. 1 Her first petition pertains to the BIA’s dismissal of her

appeal of an Immigration Judge’s (IJ) denial of her application for asylum,

withholding of removal, and protection under the Convention Against Torture

(CAT). Hernandez De-Cornejo also petitions for review of the BIA’s denial of her

motion to reopen the proceedings. We deny both petitions.

1. Asylum and Withholding. The “substantial-evidence standard”

governs our review of the BIA’s decision. Singh v. Garland, 57 F.4th 643, 651 (9th

Cir. 2023), abrogated on other grounds by Urias-Orellana v. Bondi, 607 U.S. --,

146 S. Ct. 845, 851 (2026). Under that standard, we review whether the BIA’s

decision is supported by “reasonable, substantial, and probative evidence on the

record considered as a whole.” Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th

Cir. 2014) (as amended) (citation omitted). We grant the petition only when “the

evidence not only supports[] but compels the conclusion” that the BIA’s findings

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 1 Hernandez-De Cornejo’s two minor children are derivative petitioners.

2 24-2731 and decisions are erroneous. Plancarte Sauceda v. Garland, 23 F.4th 824, 831 (9th

Cir. 2022) (as amended) (citation omitted). Where, the BIA agrees with the IJ and

adds additional reasoning, as here, “we review both the BIA’s decision and the

portions of the IJ’s decision adopted by the BIA.” Diaz v. Bondi, 129 F.4th 546, 552

(9th Cir. 2025).

To establish eligibility for asylum, the petitioner must “demonstrate a

likelihood of ‘persecution or a well-founded fear of persecution on account of race,

religion, nationality, membership in a particular social group, or political opinion.’”

Sharma v. Garland, 9 F.4th 1052, 1059 (9th Cir. 2021) (quoting 8 U.S.C.

§ 1101(a)(42)(A)). “The source of the persecution must be the government or forces

that the government is unwilling or unable to control.” Singh, 57 F.4th at 652

(citation omitted).

To establish eligibility for withholding of removal, a petitioner must show “a

clear probability that h[er] life or freedom would be threatened upon return because

of a protected category.” Id. at 658 (citation modified); see also 8 U.S.C.

§ 1231(b)(3)(A). A “clear probability” is a higher burden than “a well-founded fear

of persecution,” so a petitioner who “fail[s] to satisfy the lower standard of proof

required to establish eligibility for asylum . . . necessarily . . . fail[s] to demonstrate

eligibility for withholding.” Singh, 57 F.4th at 658 (alteration in original) (citation

omitted).

3 24-2731 Hernandez-De Cornejo’s asylum and withholding claims are based on her

asserted past persecution and fear of future persecution arising out of her abusive

marriage and pervasive gender-based violence in El Salvador.2 In its oral decision,

the IJ assumed that Hernandez-De Cornejo’s harm rose to the level of persecution

and had a sufficient nexus to a protected ground. The agency nonetheless denied

Hernandez-De Cornejo’s claim after finding that she had not shown the Salvadoran

government was unable or unwilling to protect her from the persecution that she

fears. That decision was based on the uncontroverted facts that the Salvadoran

government had assisted Hernandez-De Cornejo in leaving her abusive marriage and

obtaining a restraining order.

Hernandez-De Cornejo’s assertion that the agency erred in discounting

country-conditions evidence of gender-based violence in El Salvador does not

overcome the specific evidence of her experience with her local authorities. Cf.

Rahimzadeh v. Holder, 613 F.3d 916, 923 (9th Cir. 2010) (“[G]eneral country-level

information is ordinarily insufficient to contradict direct, specific, credited

testimony.”), abrogated on other grounds by Bringas-Rodriguez v. Sessions, 850

F.3d 1051 (9th Cir. 2017) (en banc). Nor does the record compel us to conclude that

the agency erred in finding Hernandez-De Cornejo failed to establish the state-action

2 We decline to consider the additional bases for her asylum claims that Hernandez-De Cornejo raises for the first before this court as they were not exhausted before the agency. See 8 U.S.C. § 1252(d)(1).

4 24-2731 element of her asylum claim. And because she has not satisfied “the lower standard

of proof required to establish eligibility for asylum,” we “necessarily” deny her

petition as to withholding, as well. Singh, 57 F.4th at 658 (citation omitted).

2. CAT. “To qualify for CAT protection, a petitioner must show it is ‘more

likely than not he or she would be tortured if removed to the proposed country of

removal.’” Sharma, 9 F.4th at 1067 (quoting 8 C.F.R. § 208.16(c)(2)). Torture “is

more severe than persecution.” Guo v. Sessions, 897 F.3d 1208, 1217 (9th Cir. 2018)

(citation omitted). The petitioner must show that the torture “is inflicted by, or at the

instigation of, or with the consent or acquiescence of, a public official acting in an

official capacity or other person acting in an official capacity.” 8 C.F.R.

§ 1208.18(a)(1). We review the agency’s denial of CAT protection for substantial

evidence. Sharma, 9 F.4th at 1066.

Hernandez-De Cornejo does not meaningfully challenge the agency’s

determination that the Salvadoran government would not acquiesce in or inflict

torture. She also fails to identify any authority demonstrating that her husband’s

abuse constituted torture. We hold that the agency’s decision was supported by

substantial evidence.

3. Ineffective Assistance of Counsel. In her first petition, Hernandez-De

Cornejo also asserts an ineffective-assistance-of-counsel (IAC) claim based on the

allegedly deficient performance of her counsel before the BIA. Because petitioners

5 24-2731 do not have a right to counsel in deportation proceedings, IAC claims based on

counsel’s performance before the agency are evaluated under the Fifth

Amendment’s Due Process Clause. United States v. Lopez-Chavez, 757 F.3d 1033,

1041 (9th Cir. 2014). Due-process claims, including IAC claims, are reviewed de

novo. Mohammed v. Gonzales, 400 F.3d 785, 791–92 (9th Cir. 2005). Because

Hernandez-De Cornejo did not properly exhaust this claim before the BIA, she is

entitled to relief only if she can show that “the ineffectiveness of counsel was plain

on its face” and resulted in prejudice. Guan v. Barr, 925 F.3d 1022, 1033 (9th Cir.

2019) (citation omitted).

Assuming without deciding that Hernandez-De Cornejo’s BIA counsel failed

to “perform with sufficient competence,” Jie Lin v. Ashcroft, 377 F.3d 1014, 1027

(9th Cir. 2004), she is unable to show prejudice, Mohammed, 400 F.3d at 793–94.

Thus, Hernandez-De Cornejo’s IAC claim fails.

4. Motion to Reopen. The BIA has discretion in ruling on a motion to

reopen. 8 C.F.R. § 1003.2(a). Accordingly, we apply a “deferential, abuse-of-

discretion standard of review.” Chandra v. Holder, 751 F.3d 1034, 1036 (9th Cir.

2014) (quoting Kucana v. Holder, 558 U.S. 233, 242 (2010)). “The BIA abuses its

discretion when its denial of a motion to reopen is ‘arbitrary, irrational or contrary

to law.’” Id. (citation omitted). We apply substantial-evidence review to the BIA’s

underlying factual findings. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010).

6 24-2731 A motion to reopen must be filed within 90 days of the BIA’s decision on

appeal if it is based on “new facts,” or, in proceedings for asylum, at any time if

there are “changed country conditions arising in the country of nationality or the

country to which removal has been ordered” that are supported by “material”

evidence that “was not available and would not have been discovered or presented”

at the previous proceeding. 8 U.S.C. § 1229a(c)(7); see Chandra, 751 F.3d at 1036.

“The BIA can deny a motion to reopen on any one of at least three independent

grounds—failure to establish a prima facie case for the relief sought, failure to

introduce previously unavailable, material evidence, and a determination that even

if these requirements were satisfied, the movant would not be entitled to the

discretionary grant of relief which he sought.” Najmabadi, 597 F.3d at 986 (citation

modified).

Hernandez-De Cornejo advanced three grounds for reopening her

proceedings: (1) changed county conditions, (2) new evidence of persecution, and

(3) her desire to file independent asylum petitions on behalf of her children. The BIA

rejected each ground.

As to changed country conditions, the BIA did not abuse its discretion in

determining that Hernandez-De Cornejo’s evidence did not “constitute[] a material

and previously unavailable change in country conditions” sufficient to excuse her

untimeliness. Much of the evidence Hernandez-De Cornejo relied on predated the

7 24-2731 deadline for a timely motion to reopen and even her initial IJ hearing. Moreover, the

evidence was not “qualitatively different” than what was presented to the IJ.

Agonafer v. Sessions, 859 F.3d 1198, 1204 (9th Cir. 2017) (citation omitted); cf.

Najmabadi, 597 F.3d at 987–91 (collecting cases).

As to the evidence that Hernandez-De Cornejo was raped by a stranger in

2021 in El Salvador, we assume, like the agency, that this was previously

unavailable. Nonetheless, substantial evidence supports the BIA’s determination

that the evidence did not establish prima facie eligibility for asylum because there

was no “reasonable likelihood” of success. Fonseca-Fonseca v. Garland, 76 F.4th

1176, 1183 (9th Cir. 2023). Hernandez-De Cornejo did not allege the government of

El Salvador was unable or unwilling to protect her from her unknown assailant.

Further, her only evidence of a well-founded fear of future persecution depended on

the allegedly new country-conditions evidence that the agency determined was

untimely.

Finally, we hold the BIA did not abuse its discretion in denying Hernandez-

De Cornejo’s motion to reopen so that she could file independent (rather than

derivative) asylum claims on behalf of her minor children. Because the BIA did not

abuse its discretion in finding that she did not present evidence of a material and

previously unavailable change in El Salvador, it follows that her children could not

establish independent claims based on that evidence.

8 24-2731 PETITION DENIED.3

3 The temporary stay of removal entered by the court is hereby lifted and Hernandez-De Cornejo’s motion for a stay (Case No. 24-2731, Dkt. 3) is DENIED.

9 24-2731