FILED NOT FOR PUBLICATION JUN 18 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENY YAJAIRA ALVAREZ-MOLINA, No. 15-73134 AKA Keny Alvarez-Molina, Agency No. A200-881-871 Petitioner,
v. MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted June 4, 2018 Seattle, Washington
Before: BYBEE and N.R. SMITH, Circuit Judges, and ANTOON,** District Judge.
Keny Yajaira Alvarez-Molina (“Alvarez”), native and citizen of El Salvador,
petitions for review of a decision of the Board of Immigration Appeals (“BIA”),
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable John Antoon II, United States District Judge for the Middle District of Florida, sitting by designation. which affirmed an immigration judge’s (“IJ”) denial of her applications for
withholding of removal and protection under the Convention Against Torture
(“CAT”). We have jurisdiction under 8 U.S.C. § 1252.
1. The BIA did not abuse its discretion when it concluded that Alvarez’s
conviction for robbery under Indiana Code § 35-42-5-1 was a particularly serious
crime barring her from relief from withholding of removal. See Arbid v. Holder,
700 F.3d 379, 383 (9th Cir. 2012). The BIA considered Alvarez’s age when she
committed the offense and her role in the crime. After reviewing the
circumstances of the crime, the BIA determined that, despite her young age at the
time, she was a danger to the community. Nothing in the record suggests that the
BIA’s decision was “illogical, implausible, or without support in inferences that
may be drawn from the record.” United States v. Hinkson, 585 F.3d 1247, 1262
(9th Cir. 2009) (en banc).
2. Because we are unable to determine whether the BIA properly analyzed
whether the government officials in Ahuachapán, El Salvador would acquiesce in
acts of torture against Alvarez, we remand to the BIA to reconsider this issue. Our
problem: Alverez presented credible testimony that, on one occasion, the police
arrived at the scene when MS-13 members were beating her and her cousin.
Instead of intervening in the altercation, the police waited until the perpetrators had
2 gone, and then threatened Alvarez and her cousin with further harm if they did not
leave.1 Alvarez truthfully testified that the police did not respond to her and her
cousin, because the police thought they were gang members. Alvarez’s testimony
was also supported by (a) Alvarez’s expert’s testimony that “[t]he police are
hesitant and sometimes not at all willing to intervene in any gang related activities
and they would be most hesitant and least likely to intervene to protect a gang
member” and the police are “only too happy to see gang members disposed of or
eliminated”; and (b) the country reports that indicated that El Salvador “struggles
with police and official corruption and ties to gangs and criminal activity” and “the
police will murder suspected gang members with impunity.” After reviewing this
evidence, the BIA merely described the actions of the police as rude and
unfortunate, and concluded there was no evidence that “the police would turn a
blind eye to torturous conduct.” Then to buttress this conclusion, the BIA cited
generally to the efforts of the Salvadoran government to combat gangs, gang
violence, and corruption in the police force. The BIA never specifically addressed
whether “public officials at the state and local level in [El Salvador] would
acquiesce in any torture [Alvarez] is likely to suffer.” Madrigal v. Holder, 716
1 “Acts constituting torture under CAT are varied, and include beatings and killings.” Cole v. Holder, 659 F.3d 762, 771 (9th Cir. 2011) (quotation marks omitted) (quoting Bromfield v. Mukasey, 543 F.3d 1071, 1079 (9th Cir. 2008)). 3 F.3d 499, 510 (9th Cir. 2013). Thus, the BIA’s decision appears to misconstrue the
facts and misapply our precedent.
Although the BIA cited to Madrigal, the BIA “failed to state with sufficient
particularity and clarity the reasons” that local police would not acquiesce in acts
of torture (in light of their failure to intervene), and “so does not provide an
adequate basis for this court to conduct its review.”2 Id. at 509 (quotation marks
and citation omitted). As we noted in Madrigal, to determine whether the local
government is unwilling or unable to prevent acts of torture, the BIA must
“examin[e] the efficacy of the government’s efforts to stop the [gang] violence,”
which is “affected by the degree of corruption that exists in [El Salvador’s]
government.” Id. The BIA’s decision does not explain how the Salvadoran
government’s efforts would affect (if at all) the local officers’ actions here.
2 The government argues and the BIA’s opinion suggests that there was an inability to track down the perpetrators. Therefore, there was no evidence of acquiescence. See Garcia-Milian v. Holder, 755 F.3d 1026, 1034 (9th Cir. 2014) (“Evidence that the police were aware of a particular crime, but failed to bring the perpetrators to justice, is not in itself sufficient to establish acquiescence in the crime.”). Although the police may have been provided insufficient evidence with regard to the first beating, the second beating was different. Regarding the second incident, the credible evidence presented established that the police were present, failed to intervene to prevent or stop the attack, and instead threatened Alvarez and her cousin with further harm. This behavior suggests an unwillingness to act rather than an inability. 4 Further, after the BIA issued its decision, we issued Barajas-Romero v.
Lynch, wherein we reaffirmed Madrigal and further emphasized the importance of
analyzing whether local government officials (including rogue officials) would
acquiesce in torture, even if the national government has taken action to combat
crime and corruption. 846 F.3d 351, 363-64 (9th Cir. 2017). Because the record
raises an issue with regard to whether “a public official would so acquiesce” in
Alvarez’s torture, see Madrigal, 716 F.3d at 509 (citation and quotation marks
omitted) (emphasis added), we remand to the BIA to consider, in light of Madrigal
and Barajas-Romero, whether local government officials would be unwilling “to
intervene to prevent the [torturous] activity” against Alvarez, Barajas-Romero, 846
F.3d at 363 (citation omitted).
3. The BIA did not err in concluding that the IJ did not violate Alvarez’s due
process rights. A review of the record shows that the IJ was asking clarifying
questions and did not engage in any improper treatment of her or her witness. Cf.
Reyes-Melendez v. INS, 342 F.3d 1001, 1006 (9th Cir.
Free access — add to your briefcase to read the full text and ask questions with AI
FILED NOT FOR PUBLICATION JUN 18 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENY YAJAIRA ALVAREZ-MOLINA, No. 15-73134 AKA Keny Alvarez-Molina, Agency No. A200-881-871 Petitioner,
v. MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted June 4, 2018 Seattle, Washington
Before: BYBEE and N.R. SMITH, Circuit Judges, and ANTOON,** District Judge.
Keny Yajaira Alvarez-Molina (“Alvarez”), native and citizen of El Salvador,
petitions for review of a decision of the Board of Immigration Appeals (“BIA”),
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable John Antoon II, United States District Judge for the Middle District of Florida, sitting by designation. which affirmed an immigration judge’s (“IJ”) denial of her applications for
withholding of removal and protection under the Convention Against Torture
(“CAT”). We have jurisdiction under 8 U.S.C. § 1252.
1. The BIA did not abuse its discretion when it concluded that Alvarez’s
conviction for robbery under Indiana Code § 35-42-5-1 was a particularly serious
crime barring her from relief from withholding of removal. See Arbid v. Holder,
700 F.3d 379, 383 (9th Cir. 2012). The BIA considered Alvarez’s age when she
committed the offense and her role in the crime. After reviewing the
circumstances of the crime, the BIA determined that, despite her young age at the
time, she was a danger to the community. Nothing in the record suggests that the
BIA’s decision was “illogical, implausible, or without support in inferences that
may be drawn from the record.” United States v. Hinkson, 585 F.3d 1247, 1262
(9th Cir. 2009) (en banc).
2. Because we are unable to determine whether the BIA properly analyzed
whether the government officials in Ahuachapán, El Salvador would acquiesce in
acts of torture against Alvarez, we remand to the BIA to reconsider this issue. Our
problem: Alverez presented credible testimony that, on one occasion, the police
arrived at the scene when MS-13 members were beating her and her cousin.
Instead of intervening in the altercation, the police waited until the perpetrators had
2 gone, and then threatened Alvarez and her cousin with further harm if they did not
leave.1 Alvarez truthfully testified that the police did not respond to her and her
cousin, because the police thought they were gang members. Alvarez’s testimony
was also supported by (a) Alvarez’s expert’s testimony that “[t]he police are
hesitant and sometimes not at all willing to intervene in any gang related activities
and they would be most hesitant and least likely to intervene to protect a gang
member” and the police are “only too happy to see gang members disposed of or
eliminated”; and (b) the country reports that indicated that El Salvador “struggles
with police and official corruption and ties to gangs and criminal activity” and “the
police will murder suspected gang members with impunity.” After reviewing this
evidence, the BIA merely described the actions of the police as rude and
unfortunate, and concluded there was no evidence that “the police would turn a
blind eye to torturous conduct.” Then to buttress this conclusion, the BIA cited
generally to the efforts of the Salvadoran government to combat gangs, gang
violence, and corruption in the police force. The BIA never specifically addressed
whether “public officials at the state and local level in [El Salvador] would
acquiesce in any torture [Alvarez] is likely to suffer.” Madrigal v. Holder, 716
1 “Acts constituting torture under CAT are varied, and include beatings and killings.” Cole v. Holder, 659 F.3d 762, 771 (9th Cir. 2011) (quotation marks omitted) (quoting Bromfield v. Mukasey, 543 F.3d 1071, 1079 (9th Cir. 2008)). 3 F.3d 499, 510 (9th Cir. 2013). Thus, the BIA’s decision appears to misconstrue the
facts and misapply our precedent.
Although the BIA cited to Madrigal, the BIA “failed to state with sufficient
particularity and clarity the reasons” that local police would not acquiesce in acts
of torture (in light of their failure to intervene), and “so does not provide an
adequate basis for this court to conduct its review.”2 Id. at 509 (quotation marks
and citation omitted). As we noted in Madrigal, to determine whether the local
government is unwilling or unable to prevent acts of torture, the BIA must
“examin[e] the efficacy of the government’s efforts to stop the [gang] violence,”
which is “affected by the degree of corruption that exists in [El Salvador’s]
government.” Id. The BIA’s decision does not explain how the Salvadoran
government’s efforts would affect (if at all) the local officers’ actions here.
2 The government argues and the BIA’s opinion suggests that there was an inability to track down the perpetrators. Therefore, there was no evidence of acquiescence. See Garcia-Milian v. Holder, 755 F.3d 1026, 1034 (9th Cir. 2014) (“Evidence that the police were aware of a particular crime, but failed to bring the perpetrators to justice, is not in itself sufficient to establish acquiescence in the crime.”). Although the police may have been provided insufficient evidence with regard to the first beating, the second beating was different. Regarding the second incident, the credible evidence presented established that the police were present, failed to intervene to prevent or stop the attack, and instead threatened Alvarez and her cousin with further harm. This behavior suggests an unwillingness to act rather than an inability. 4 Further, after the BIA issued its decision, we issued Barajas-Romero v.
Lynch, wherein we reaffirmed Madrigal and further emphasized the importance of
analyzing whether local government officials (including rogue officials) would
acquiesce in torture, even if the national government has taken action to combat
crime and corruption. 846 F.3d 351, 363-64 (9th Cir. 2017). Because the record
raises an issue with regard to whether “a public official would so acquiesce” in
Alvarez’s torture, see Madrigal, 716 F.3d at 509 (citation and quotation marks
omitted) (emphasis added), we remand to the BIA to consider, in light of Madrigal
and Barajas-Romero, whether local government officials would be unwilling “to
intervene to prevent the [torturous] activity” against Alvarez, Barajas-Romero, 846
F.3d at 363 (citation omitted).
3. The BIA did not err in concluding that the IJ did not violate Alvarez’s due
process rights. A review of the record shows that the IJ was asking clarifying
questions and did not engage in any improper treatment of her or her witness. Cf.
Reyes-Melendez v. INS, 342 F.3d 1001, 1006 (9th Cir. 2003).
We GRANT the petition as to the CAT claim and otherwise DENY the
petition for review. We VACATE the BIA’s decision and REMAND to the BIA
for reconsideration consistent with this disposition. The parties shall bear their
own costs on appeal.
5 FILED Alvarez-Molina v. Sessions, No. 15-73134 JUN 18 2018 BYBEE, Circuit Judge, concurring in part and dissenting in part: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
I agree that the BIA’s determination that Alvarez’s conviction for robbery
was a particularly serious crime was not an abuse of discretion, and that the IJ did
not violate Alvarez’s due process rights. I therefore concur in the denial of
Alvaraz’s petition for review on those grounds.
But I disagree with the decision to grant the petition as to the CAT claim.
Substantial evidence supports the BIA’s determination that the harm Alvarez
suffered at the hands of her fellow MS-13 gang members did not rise to the level of
torture, and the majority does not contend otherwise. Yet it relies on the failure of
the police to intervene while Alvarez was being beaten one time by gang members
to find that the BIA did not sufficiently state why Alvarez failed to establish it was
more likely than not she would be tortured with the acquiescence of the Salvadoran
government. As the BIA explained, the failure of the police to intervene in this
one incident—in which the IJ and the BIA determined Alvarez was not being
tortured—“does not demonstrate that the police would turn a blind eye to torturous
conduct.” The BIA then considered Alvarez’s evidence of police corruption, the
evidence of government efforts to combat that corruption, and the absence of any
police involvement in the harm Alvarez suffered in El Salvador. In my view, the
BIA has already conducted the inquiry for which we remand, and substantial evidence supports the denial of CAT relief.
I respectfully dissent as to the CAT claim.