Perez v. Bondi

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 14, 2025
• Docket: 23-3782
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 14 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE HERIBERTO PEREZ; KATHERINE No. 23-3782 VANESSA PEREZ-SOLIS; JIMENA Agency Nos. JOSABETH PEREZ-SOLIS; MARIA A220-593-560 LUISA SOLIS DE PEREZ, A220-149-672 A220-149-693 Petitioners, A220-149-667 v. MEMORANDUM** PAMELA BONDI*, Attorney General,

Respondent.

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

Submitted February 12, 2025*** Pasadena, California

Before: TALLMAN, IKUTA, and R. NELSON, Circuit Judges.

* Pamela Bondi is substituted as Attorney General pursuant to Fed. R. App. P. 43(c). ** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. *** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Petitioners are Katherine Vanessa Perez-Solis (Perez-Solis), her father Jose

Heriberto Perez, her mother Maria Luisa Solis De Perez, and her sister Jimena

Josabeth Perez-Solis—all natives and citizens of El Salvador who entered the United

States without admission or parole on August 18, 2021. Petitioners seek review of

a Board of Immigration Appeals (BIA) decision dismissing their appeal of an

immigration judge’s (IJ) order denying their applications for asylum, withholding of

removal, and protection under the Convention Against Torture (CAT).

We review the agency’s underlying factual findings for substantial evidence.

Salguero Sosa v. Garland, 55 F.4th 1213, 1217 (9th Cir. 2022); see also Reyes v.

Lynch, 842 F.3d 1125, 1137–38 (9th Cir. 2016). Under that standard, the agency’s

factual findings are “conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary.” Zehatye v. Gonzales, 453 F.3d 1182, 1185

(9th Cir. 2006) (quotation omitted). Because the BIA largely reiterated what the IJ

found and agreed with its determinations, the panel reviews those portions of the IJ’s

decision along with any additional reasons provided by the BIA. Garcia-Martinez

v. Sessions, 886 F.3d 1291, 1293 (9th Cir. 2018) (“Where . . . the BIA agrees with

the IJ’s reasoning, we review both decisions.”).

We have jurisdiction under 8 U.S.C. § 1252(a), and we deny the petition.

1. Petitioners’ asylum and withholding claims fail because substantial

evidence supports the BIA’s determination that their persecution had no nexus to

2 23-3782 any protected ground. See Barajas-Romero v. Lynch, 846 F.3d 351, 360 (9th Cir.

2017); Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010); Rodriguez-Zuniga v.

Garland, 69 F.4th 1012, 1019 (9th Cir. 2023). The IJ discussed in detail Mara

18’s—a Salvadoran gang—sexual harassment and assault of Perez-Solis, as well as

the gang’s subsequent extortion attempt. But, based on country reports and other

evidence, the IJ found that this criminality was motivated by the gang’s general

victimization of Salvadoran society writ large and a criminal motive to recruit Perez-

Solis for criminal and sexual gratification purposes. Petitioners’ desire to avoid

indiscriminate criminal violence “bears no nexus to a protected ground.” Zetino,

622 F.3d at 1016. Thus, the agency’s determination that Petitioners were the victims

of ordinary criminal violence forecloses a nexus between the violence and any of

Petitioners’ asserted particular social groups and political opinions. See id.; cf. Singh

v. Holder, 764 F.3d 1153, 1159 (9th Cir. 2014).

Properly understood, the BIA applied de novo review to the nexus

determination, and clear error to the IJ’s factual findings. See Umana-Escobar v.

Garland, 69 F.4th 544, 551–53 (9th Cir. 2023). The BIA correctly noted at the outset

that it reviews facts for clear error and law de novo. Right after it began its nexus

discussion, it cited the factual findings necessary to make a nexus determination.

Then, over the next four paragraphs, the BIA consistently applied the “clear error”

standard of review to those findings. But when reaching its legal conclusion, the

3 23-3782 BIA did not make a clear error finding. Instead, the BIA reviewed the nexus

determination de novo and “agree[d] with the [IJ’s] conclusions” and, later, stated

that “[w]e agree with the [IJ’s] ultimate conclusion.”

Finally, the IJ and BIA did not need to discuss every piece of evidence. 1 See

Almaghzar v. Gonzales, 457 F.3d 915, 922 (9th Cir. 2006); see also Villegas Sanchez

v. Garland, 990 F.3d 1173, 1183 (9th Cir. 2021). In fact, they are presumed to have

reviewed all the evidence. Larita-Martinez, 220 F.3d at 1095–96. To succeed here,

Petitioners needed to show that the agency misstated the record or ignored

potentially dispositive evidence. See Cole v. Holder, 659 F.3d 762, 771–72 (9th Cir.

2011). Petitioners do not meet their burden.

The expert testimony Petitioners complain the agency did not review provided

color on the nature of gang power in El Salvador (explaining that gangs desire to

crush resistance) and El Salvador’s culture of violence towards women and girls.

The agency discussed both. It acknowledged Mara 18’s control of Petitioners’

neighborhood, the extreme violence that women face in Guatemala (including sexual

violence and “disappear[ing]” women), Petitioners’ fears that they could not return

1 This argument is likely waived. Petitioners should have brought a due process claim if they wished to challenge the agency’s evidentiary review of their asylum and withholding claims. See Larita-Martinez v. INS, 220 F.3d 1092, 1095 (9th Cir. 2000). They do not do so here. See Zango, Inc. v. Kapersky Lab, Inc., 568 F.3d 1169, 1177 n.8 (9th Cir. 2009) (“[A]rguments not raised by a party in an opening brief are waived.”).

4 23-3782 to El Salvador because of gang control and the government’s inability to control the

gangs, and the ill treatment of women in El Salvador. These touch upon both areas

Petitioners claim the agency overlooked.

Nor would specific citation to the evidence be “dispositive” to the BIA’s

conclusion, Cole, 659 F.3d at 772: “Here, it is clear from the Respondents’

applications they fear they will be victims of general crime and violence in El

Salvador.” The IJ came to this conclusion only after going through the evidence of

widespread gang criminality and control over areas of El Salvador and gang abuse

of wide sectors of society, including women. There is no indication, then, that the

evidence Petitioners demand the agency make specific reference to would disturb

the conclusion that this episode of criminality was driven by the gang’s routine

practice of targeting all sectors of society. See Larita-Martinez, 220 F.3d at 1095

(due process claims require a showing of prejudice).

2. Substantial evidence also supports the finding that El Salvador does not

acquiesce to gang violence. The IJ acknowledged that laws against sexual violence

are not “effectively enforced.” But it noted that the law “criminalizes rape” and

“requires prosecution whether or not the victim presses charges.” And the

government also implemented a nationwide protocol that provides significant

assistance to victims of sexual violence. So the IJ properly found that the

government of El Salvador was “attempting to protect the attacked.”

5 23-3782 The same was true for the other Petitioners. They filed a complaint with the

Salvadoran police. And even though the culprits were broadly defined in the

complaint, the National Police still forwarded the complaint to the attorney general’s

office. Yet Petitioners departed El Salvador “a mere seventeen . . . days after filing

the report.” Accordingly, the IJ found, with substantial evidentiary support, that

“[t]his is not a case wherein the applicant affirmatively sought protection from law

enforcement in her home country but was rebuked.”

Again, Petitioners protest that the agency did not reference their expert

reports, which assert that Mara 18 and other gangs practically rule as quasi-

sovereigns in parts of El Salvador. Petitioners insist that the agency ignored that

expert evidence. Again, we disagree.

There is no “indication that the BIA [and IJ] did not consider all of the

evidence before” them. Cole, 659 F.3d at 771–72. At the hearing, the IJ gave the

evidence “appropriate weight.” The IJ listed these exhibits in the record. And it

stated that, “[w]hether specifically mentioned or not, the Court has considered all

evidence contained in the record to reach its decision.” While it did not cite the

exhibits by name, the IJ’s analysis touched upon similar evidence, which it rebutted.

For instance, as it relates to this issue, Petitioners complain that their evidence

shows that gangs “collaborate with corrupt governmental officials” and often operate

with “more power than traditional state actors.” But the 2020 country report for El

6 23-3782 Salvador in the administrative record, which no one contests the agency relied upon

heavily, touches upon those very issues.

Moreover, the evidence relied upon by the IJ rebuts the expert testimony. The

IJ acknowledged that “the Salvadoran government has not been completely

successful at quelling gang violence or crime in the country.” But it found that

Petitioners feared private actors. And it noted that the government of El Salvador is

utilizing extraordinary emergency powers to turn the military against the gangs.

These findings, supported by substantial evidence, squarely address the redundant

evidence Petitioners complain the agency ignored.

“Given the lack of evidence supporting a claim of torture by the government,

and the evidence demonstrating that El Salvador does not acquiesce to gang

violence, substantial evidence supports the agency’s denial of CAT relief.” Amaya

v. Garland, 15 F.4th 976, 987 (9th Cir. 2021).

PETITION DENIED.

7 23-3782