FILED NOT FOR PUBLICATION MAR 5 2024 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CONSUELO EMPERATRIZ No. 22-607 NAVARRETE-GONZALEZ ET AL, Agency Nos. A209-234-823 Petitioner, A209-234-824
v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted February 14, 2024 Pasadena, California
Before: W. FLETCHER, NGUYEN, and LEE, Circuit Judges. Partial Dissent by Judge LEE.
Petitioners Consuelo Emperatriz Navarrete-Gonzalez and her minor
daughter (“Petitioners” or “Navarrete-Gonzalez”), natives and citizens of El
Salvador, seek review of the Board of Immigration Appeals’ (“BIA”) decision
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. denying their applications for asylum, withholding of removal, and protection
under the regulations implementing the Convention Against Torture (“CAT”). We
have jurisdiction under 8 U.S.C.§ 1252.
Navarrete-Gonzalez testified that members of the 18th Street gang in El
Salvador extorted her, threatening to kill her and her daughter if she failed to pay
them. On May 30, 2016, two gang members came to her house, and threatened to
kill her and her family if she did not pay them $3000. A couple of weeks later,
gang members accosted Navarrete-Gonzalez and her daughter again. After
Navarrete-Gonzalez told the gang members she could not pay, one gang member
pulled out a gun, threatened to kill her and her daughter, and told her that “they
were not playing” and that “this was [her] last warning.” She believed the gang
members would follow through on their threats. She testified that her cousin had
been killed for ignoring death threats, as well as her neighbor and his son. She
subsequently fled to the United States with her minor daughter.
Though the Immigration Judge (“IJ”) found Navarrete-Gonzalez’s testimony
credible, the IJ and BIA denied her applications for asylum, withholding of
removal, and relief under CAT. We review for substantial evidence factual
findings that an applicant has not established eligibility for asylum, withholding of
removal, or CAT relief. 8 U.S.C. § 1252(b)(4)(B); Plancarte Sauceda v. Garland,
2 23 F.4th 824, 831 (9th Cir. 2022). We deny in part and grant in part the petition
for review, and remand.
1. The BIA’s denial of Navarrete-Gonzalez’s claims for asylum and
withholding of removal is supported by substantial evidence. The BIA found that
Navarrete-Gonzalez was not persecuted on account of a protected ground—a
necessary element of both asylum and withholding claims. 8 U.S.C. §
1158(b)(1)(B)(i); 8 U.S.C. § 1231(b)(3)(A). The BIA held that economic gain
rather than a protected ground motivated the gang members. Substantial evidence
supports that holding. Navarrete-Gonzalez testified that the gang members
targeted her because they knew her parents lived in the United States and were
sending her money.
2. To obtain relief under CAT, an applicant must show “it is more likely
than not that he or she would be tortured if removed to the proposed country of
removal.” 8 C.F.R. § 1208.16(c)(2). A CAT claim also requires a showing of
government acquiescence. Madrigal v. Holder, 716 F.3d 499, 509 (9th Cir. 2013)
(citing 8 C.F.R. § 208.18(a)(7)). The BIA rejected the CAT claim, holding that
Navarrete-Gonzalez had not shown either a likelihood of torture or government
acquiescence. However, in reaching both holdings, the BIA neglected highly
probative evidence supporting Navarrete-Gonzalez’s CAT claim.
3 The BIA concluded that there was no likelihood of torture because
Navarrete-Gonzalez’s fear that she and her daughter would be killed was based on
“a chain of assumptions and speculation.” While mere speculation alone cannot
establish a risk of torture, Navarrete-Gonzalez testified that her family was
threatened on two occasions by a gang that is known to carry out death threats.
She also testified that three other individuals she knew—her cousin, her neighbor
and his son—were killed for defying the gangs. The BIA also found that
Navarrete-Gonzalez did not “present[] sufficient particularized evidence to show
any state actor would be willfully blind to her feared torture.” However, in
addition to providing country conditions evidence, Navarrete-Gonzalez testified
that the police are infiltrated by and cooperate with gang members and that she had
previously called the police about robbers and no police ever came to investigate
her calls. Neither the IJ nor the BIA acknowledged the existence of any of this
evidence in denying relief under CAT.
This Court has been clear that “all evidence relevant to the possibility of
future torture shall be considered” in the evaluation of a CAT claim. Cole v.
Holder, 659 F.3d 762, 770 (9th Cir. 2011) (citing 8 C.F.R. § 1208.16(c)(3)). While
the BIA need not discuss each piece of evidence submitted,“where there is any
indication that the BIA did not consider all of the evidence before it, a catchall
4 phrase does not suffice, and the decision cannot stand. Such indications include
misstating the record and failing to mention highly probative or potentially
dispositive evidence.” Id. at 771–72; see also Diaz-Reynoso v. Barr, 968 F.3d
1070, 1089 (9th Cir. 2020). Here, the IJ and the BIA entirely failed to mention,
much less give “reasoned consideration” to, any of Navarrete-Gonzalez’s
particularized evidence showing risk of future torture or the acquiescence of a state
official. Cole, 659 F.3d at 772.
When the BIA justifies the denial of relief with conclusory boilerplate
language, and neglects highly probative evidence to the contrary, “the decision
cannot stand.” Id. Accordingly, we grant the petition and remand on the CAT
claim.
PETITION FOR REVIEW DENIED IN PART AND GRANTED IN
PART; REMANDED.
Each party shall bear its own costs.
5 FILED Navarette-Gonzalez, et al. v. Garland, No. 22-607: MAR 5 2024 LEE, Circuit Judge, dissenting in part. MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
I respectfully dissent from the majority’s decision to partially grant the petition
on the Convention Against Torture (CAT) claim. The majority stresses the agency’s
failure to specifically address Consuelo Navarrete-Gonzalez’s testimony that her
cousin, neighbor, and neighbor’s son were killed by gang members for ignoring death
threats. But when reviewing the agency’s decision, “we apply a ‘presumption that the
BIA did review the record.’” Hernandez v. Garland, 52 F.4th 757, 771 (9th Cir. 2022)
(quoting Fernandez v.
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FILED NOT FOR PUBLICATION MAR 5 2024 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CONSUELO EMPERATRIZ No. 22-607 NAVARRETE-GONZALEZ ET AL, Agency Nos. A209-234-823 Petitioner, A209-234-824
v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted February 14, 2024 Pasadena, California
Before: W. FLETCHER, NGUYEN, and LEE, Circuit Judges. Partial Dissent by Judge LEE.
Petitioners Consuelo Emperatriz Navarrete-Gonzalez and her minor
daughter (“Petitioners” or “Navarrete-Gonzalez”), natives and citizens of El
Salvador, seek review of the Board of Immigration Appeals’ (“BIA”) decision
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. denying their applications for asylum, withholding of removal, and protection
under the regulations implementing the Convention Against Torture (“CAT”). We
have jurisdiction under 8 U.S.C.§ 1252.
Navarrete-Gonzalez testified that members of the 18th Street gang in El
Salvador extorted her, threatening to kill her and her daughter if she failed to pay
them. On May 30, 2016, two gang members came to her house, and threatened to
kill her and her family if she did not pay them $3000. A couple of weeks later,
gang members accosted Navarrete-Gonzalez and her daughter again. After
Navarrete-Gonzalez told the gang members she could not pay, one gang member
pulled out a gun, threatened to kill her and her daughter, and told her that “they
were not playing” and that “this was [her] last warning.” She believed the gang
members would follow through on their threats. She testified that her cousin had
been killed for ignoring death threats, as well as her neighbor and his son. She
subsequently fled to the United States with her minor daughter.
Though the Immigration Judge (“IJ”) found Navarrete-Gonzalez’s testimony
credible, the IJ and BIA denied her applications for asylum, withholding of
removal, and relief under CAT. We review for substantial evidence factual
findings that an applicant has not established eligibility for asylum, withholding of
removal, or CAT relief. 8 U.S.C. § 1252(b)(4)(B); Plancarte Sauceda v. Garland,
2 23 F.4th 824, 831 (9th Cir. 2022). We deny in part and grant in part the petition
for review, and remand.
1. The BIA’s denial of Navarrete-Gonzalez’s claims for asylum and
withholding of removal is supported by substantial evidence. The BIA found that
Navarrete-Gonzalez was not persecuted on account of a protected ground—a
necessary element of both asylum and withholding claims. 8 U.S.C. §
1158(b)(1)(B)(i); 8 U.S.C. § 1231(b)(3)(A). The BIA held that economic gain
rather than a protected ground motivated the gang members. Substantial evidence
supports that holding. Navarrete-Gonzalez testified that the gang members
targeted her because they knew her parents lived in the United States and were
sending her money.
2. To obtain relief under CAT, an applicant must show “it is more likely
than not that he or she would be tortured if removed to the proposed country of
removal.” 8 C.F.R. § 1208.16(c)(2). A CAT claim also requires a showing of
government acquiescence. Madrigal v. Holder, 716 F.3d 499, 509 (9th Cir. 2013)
(citing 8 C.F.R. § 208.18(a)(7)). The BIA rejected the CAT claim, holding that
Navarrete-Gonzalez had not shown either a likelihood of torture or government
acquiescence. However, in reaching both holdings, the BIA neglected highly
probative evidence supporting Navarrete-Gonzalez’s CAT claim.
3 The BIA concluded that there was no likelihood of torture because
Navarrete-Gonzalez’s fear that she and her daughter would be killed was based on
“a chain of assumptions and speculation.” While mere speculation alone cannot
establish a risk of torture, Navarrete-Gonzalez testified that her family was
threatened on two occasions by a gang that is known to carry out death threats.
She also testified that three other individuals she knew—her cousin, her neighbor
and his son—were killed for defying the gangs. The BIA also found that
Navarrete-Gonzalez did not “present[] sufficient particularized evidence to show
any state actor would be willfully blind to her feared torture.” However, in
addition to providing country conditions evidence, Navarrete-Gonzalez testified
that the police are infiltrated by and cooperate with gang members and that she had
previously called the police about robbers and no police ever came to investigate
her calls. Neither the IJ nor the BIA acknowledged the existence of any of this
evidence in denying relief under CAT.
This Court has been clear that “all evidence relevant to the possibility of
future torture shall be considered” in the evaluation of a CAT claim. Cole v.
Holder, 659 F.3d 762, 770 (9th Cir. 2011) (citing 8 C.F.R. § 1208.16(c)(3)). While
the BIA need not discuss each piece of evidence submitted,“where there is any
indication that the BIA did not consider all of the evidence before it, a catchall
4 phrase does not suffice, and the decision cannot stand. Such indications include
misstating the record and failing to mention highly probative or potentially
dispositive evidence.” Id. at 771–72; see also Diaz-Reynoso v. Barr, 968 F.3d
1070, 1089 (9th Cir. 2020). Here, the IJ and the BIA entirely failed to mention,
much less give “reasoned consideration” to, any of Navarrete-Gonzalez’s
particularized evidence showing risk of future torture or the acquiescence of a state
official. Cole, 659 F.3d at 772.
When the BIA justifies the denial of relief with conclusory boilerplate
language, and neglects highly probative evidence to the contrary, “the decision
cannot stand.” Id. Accordingly, we grant the petition and remand on the CAT
claim.
PETITION FOR REVIEW DENIED IN PART AND GRANTED IN
PART; REMANDED.
Each party shall bear its own costs.
5 FILED Navarette-Gonzalez, et al. v. Garland, No. 22-607: MAR 5 2024 LEE, Circuit Judge, dissenting in part. MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
I respectfully dissent from the majority’s decision to partially grant the petition
on the Convention Against Torture (CAT) claim. The majority stresses the agency’s
failure to specifically address Consuelo Navarrete-Gonzalez’s testimony that her
cousin, neighbor, and neighbor’s son were killed by gang members for ignoring death
threats. But when reviewing the agency’s decision, “we apply a ‘presumption that the
BIA did review the record.’” Hernandez v. Garland, 52 F.4th 757, 771 (9th Cir. 2022)
(quoting Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir. 2006)). And “if evidence
is neither ‘highly probative nor potentially dispositive,’ the [BIA] need not expressly
discuss it.” Id. (quoting Castillo v. Barr, 980 F.3d 1278, 1283 (9th Cir. 2020)).
Navarrete-Gonzalez’s declaration about the gang killings was vague. For
example, she did not explain why those individuals were threatened or ultimately killed
by gangs. Without more, a general assertion of criminal activity cannot be considered
highly probative or dispositive of Navarrete-Gonzalez’s likelihood of future torture,
especially given the substantial and countervailing evidence. For example, neither
Navarrete-Gonzalez nor her daughter was ever harmed in El Salvador, and she has
adduced no evidence that anyone is looking for her. Indeed, Navarrete-Gonzalez’s
grandmother and sister currently reside in El Salvador unharmed. Thus, I do not
believe the agency erred in failing to specifically address this claim.
The majority opinion also points out that the agency did not address Navarrete-
1 Gonzalez’s assertion that the police had failed to investigate her report that robbers
wanted to (but did not ultimately enter) her home. But that claim of “general
ineffectiveness on the government’s part to investigate” is also insufficiently probative
and dispositive of government acquiescence to criminal activity. Id. at 770.
Because we presume that the agency reviewed the record, and as it did not ignore
highly probative or potentially dispositive evidence, I do not believe the record compels
reversal of the denial of CAT relief. I respectfully dissent.