Nelson Pleitez-Bermudez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 4, 2022
• Docket: 20-72815
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 4 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

NELSON ANTONIO PLEITEZ- No. 20-72815 BERMUDEZ, Agency No. A209-792-380 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Argued and Submitted March 18, 2022 San Francisco, California

Before: W. FLETCHER, GOULD, and COLLINS, Circuit Judges.

Nelson Antonio Pleitez-Bermudez, a native and citizen of El Salvador,

petitions for review of a Board of Immigration Appeals (“BIA”) order denying his

appeal from an Immigration Judge’s (“IJ”) decision rejecting his applications for

asylum, withholding of removal, protection under the Convention Against Torture

(“CAT”), and voluntary departure. We have jurisdiction under 8 U.S.C. § 1252. We

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. review the agency’s factual findings for substantial evidence. INS v. Elias-Zacarias,

502 U.S. 478, 481 & n.1 (1992); Silaya v. Mukasey, 524 F.3d 1066, 1070 (9th Cir.

2008). We deny the petition for review in part, grant in part, and remand to the BIA.

1. Substantial evidence supports the BIA’s determination that Pleitez-Bermudez

did not establish that the harm he suffered in El Salvador constitutes past persecution

for purposes of asylum and withholding of removal. See Duran-Rodriguez v. Barr,

918 F.3d 1025, 1028 (9th Cir. 2019) (explaining that the record in an analogous case

did not compel a conclusion that the petitioner suffered past persecution because the

death threats at issue were not “repeated, specific, and ‘combined with confrontation

or other mistreatment’” (quoting Lim v. INS, 224 F.3d 929, 936 (9th Cir. 2000)).

Pleitez-Bermudez’s efforts to distinguish Duran-Rodriguez are unsuccessful, and

the record does not support his claims that the BIA ignored arguments or otherwise

erred in analyzing the past persecution question. See Fernandez v. Gonzales, 439

F.3d 592, 603 (9th Cir. 2006) (noting that the BIA is presumed to have reviewed the

record). We deny the petition for review as to the issue of past persecution. See

Duran-Rodriguez, 918 F.3d at 1028.

2. In concluding that Pleitez-Bermudez did not establish a well-founded fear of

future persecution, the BIA dispositively relied on its view that Pleitez-Bermudez’s

BIA brief forfeited any challenge to the IJ’s finding that the Salvadoran government

had not been shown to be unwilling or unable to control a specific gang. Although

2 Pleitez-Bermudez’s BIA brief did not have a separate section devoted to that point,

it recited the applicable legal standard on the issue, pointed to evidence in the record

showing that the police could not control the gang, and argued that such evidence

established the “apparent inability of the police or a police officer to protect” Pleitez-

Bermudez in El Salvador. This issue was not forfeited, and the BIA erred in

bypassing Pleitez-Bermudez’s arguments regarding whether he has a well-founded

fear of future persecution. We grant the petition for review as to the issue of a well-

founded fear of future persecution and remand for the BIA to address the relevant

arguments in the first instance and consider whether the IJ properly denied asylum

and withholding of removal.

3. Pleitez-Bermudez did not challenge the agency’s denial of CAT relief in his

Opening Brief, so this issue is forfeited on appeal. See Etemadi v. Garland, 12 F.4th

1013, 1026 (9th Cir. 2021) (explaining that “forfeiture is the failure to make a timely

assertion of a right, whereas waiver is the intentional relinquishment or abandonment

of a right” (internal citation omitted)).

4. As to voluntary departure, the BIA did not have the benefit of Posos-Sanchez

v. Garland, 3 F.4th 1176, 1185 (9th Cir. 2021), which held that a deficient notice to

appear cannot trigger the stop-time rule. At oral argument, the government conceded

that we should remand for the BIA to reevaluate voluntary departure in light of this

intervening case. For these reasons, we grant the petition for review of Pleitez-

3 Bermudez’s request for voluntary departure and remand to the BIA for reassessment.

See INS v. Ventura, 537 U.S. 12, 16 (2002).

PETITION DENIED in part as to the issue of past persecution and the

CAT claim. PETITION GRANTED in part as to whether Pleitez-Bermudez

can gain asylum or withholding of removal because he has a well-founded fear

of future persecution and voluntary departure; these issues are REMANDED

to the BIA for reconsideration. The parties shall bear their own costs on appeal.