NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 12 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
SANDRA MILAGROS PINA ALBINO; No. 25-1552 G.K. L. V., Agency Nos. A241-905-147 Petitioners, A241-905-146 v. MEMORANDUM* PAMELA BONDI, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted March 6, 2026** San Francisco, California
Before: M. SMITH and R. NELSON, Circuit Judges, and LEFKOW, District Judge.***
Petitioner Sandra Milagros Pina Albino, a native and citizen of Peru, seeks
review of a decision by the Board of Immigration Appeals (BIA) dismissing her
* 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). *** The Honorable Joan H. Lefkow, United States District Judge for the Northern District of Illinois, sitting by designation. appeal from an Immigration Judge’s (IJ) denial of her and her minor child’s
applications for asylum, withholding of removal, and protection pursuant to the
Convention Against Torture (CAT). We have jurisdiction pursuant to 8 U.S.C.
§ 1252. We deny the petition.
Our review is limited to the BIA’s decision and those aspects of the IJ’s
decision that the BIA expressly adopts. See Singh v. Garland, 57 F.4th 643, 651
(9th Cir. 2023). We review the BIA’s legal conclusions de novo and the IJ’s
factual findings for substantial evidence. See Bringas-Rodriguez v. Sessions, 850
F.3d 1051, 1059 (9th Cir. 2017). We recount the facts only as necessary to our
disposition.
1. We previously remanded Petitioner’s earlier appeal to the BIA upon
the government’s unopposed motion to do so. In the instant appeal, Petitioner
argues that the BIA failed to comply with our remand order by failing to provide
additional analysis about whether Petitioner was entitled to a rebuttable
presumption of a well-founded fear of future persecution. We disagree. Our
remand order summarily stated that the motion for remand was granted. But even
if we assume that our remand order intended to encompass certain language from
the government’s motion,1 the BIA expressly acknowledged the rebuttable
1 In its motion, the government asked our court to “remand this case so the agency may further address the denial of Petitioners’ applications for asylum and withholding of removal.” It asked “[s]pecifically” that the BIA “provide additional
2 25-1552 presumption of a well-founded fear of future persecution and concluded that it
does not apply to Petitioner.2 The BIA explained that Petitioner “was not entitled
to a rebuttable presumption of a well-founded fear of persecution” because “[t]he
lack of government involvement . . . precludes [Petitioner] from establishing that
she suffered past persecution or that she has a well-founded fear of persecution.”
By arguing otherwise, Petitioner mischaracterizes the BIA’s decision.
2. Nor did the BIA err on remand by declining to apply the
burden-shifting framework in its evaluation of Petitioner’s asylum claim. The crux
of Petitioner’s argument is that the BIA ignored both the IJ’s finding that “[it] is
satisfied that with the other physical violence she claims . . . [her miscarriage] does
rise to the level of past persecution” and the IJ’s statement that he “found past
persecution.” According to Petitioner, these statements entitle her to the rebuttable
presumption of a well-founded fear of future persecution, which the BIA did not
analyze. However, even if Petitioner’s harm rose to the level of past persecution,
analysis regarding whether Petitioner benefits from a rebuttable presumption of a well-founded fear of future persecution and whether the government bore the burden of rebutting such a presumption.” 2 If an IJ finds that a petitioner has established past persecution, that petitioner is entitled to “a rebuttable presumption that a well-founded fear of future persecution exists.” Parada v. Sessions, 902 F.3d 901, 909 (9th Cir. 2018) (internal quotation omitted). The government then must rebut the presumption by demonstrating a fundamental change in circumstances or that the petitioner could avoid future persecution by relocating to another part of her country. See 8 C.F.R. § 1208.13(b)(1)(i); Mousa v. Mukasey, 530 F.3d 1025, 1029 (9th Cir. 2008).
3 25-1552 that finding does not mean that she is entitled to relief.
“An applicant alleging past persecution has the burden of establishing that
(1) [her] treatment rises to the level of persecution; (2) the persecution was on
account of one or more protected grounds; and (3) the persecution was committed
by the government, or by forces that the government was unable or unwilling to
control.” Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir. 2010). Here,
Petitioner is not entitled to relief because the IJ found that she has not shown that
the Peruvian government is unable or unwilling to protect her. The BIA did not
address whether Petitioner has a well-founded fear of future persecution because
she did not meet all the requirements to demonstrate persecution based on the IJ’s
other findings. This was not error because the BIA is not required to reach the
merits of issues that are unnecessary to the results that it reaches. See Simeonov v.
Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004).
That the IJ unnecessarily analyzed whether Petitioner’s past harm gave rise
to the rebuttable presumption of a well-founded fear of future persecution does not
mean the BIA erred by declining to do so. The BIA found “no clear error in the
[IJ’s] factual finding that the government of Peru is not unable or unwilling to
protect [Petitioner].” And the BIA correctly concluded that this finding is
dispositive because it is an element of claims for asylum based on past persecution,
“preclud[ing]” Petitioner from establishing that she suffered past persecution or
4 25-1552 has a well-founded fear of future persecution. See Lapadat v. Bondi, 145 F.4th
942, 957–58 (9th Cir. 2025).
To the extent that Petitioner challenges the IJ’s finding that the government
met its burden to rebut the presumption, “[o]ur review is limited to those grounds
explicitly relied upon by the Board.” Budiono v. Lynch, 837 F.3d 1042, 1046 (9th
Cir. 2016). The BIA did not address whether the government met its burden to
demonstrate a fundamental change in circumstances or Petitioner’s ability to
relocate within Peru because it concluded that the presumption did not apply.
Thus, we decline to do so.
Petitioner further argues that the BIA’s decision “places the burden on
[Petitioner] to show the Peruvian government was unable or unwilling to assist her,
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 12 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
SANDRA MILAGROS PINA ALBINO; No. 25-1552 G.K. L. V., Agency Nos. A241-905-147 Petitioners, A241-905-146 v. MEMORANDUM* PAMELA BONDI, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted March 6, 2026** San Francisco, California
Before: M. SMITH and R. NELSON, Circuit Judges, and LEFKOW, District Judge.***
Petitioner Sandra Milagros Pina Albino, a native and citizen of Peru, seeks
review of a decision by the Board of Immigration Appeals (BIA) dismissing her
* 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). *** The Honorable Joan H. Lefkow, United States District Judge for the Northern District of Illinois, sitting by designation. appeal from an Immigration Judge’s (IJ) denial of her and her minor child’s
applications for asylum, withholding of removal, and protection pursuant to the
Convention Against Torture (CAT). We have jurisdiction pursuant to 8 U.S.C.
§ 1252. We deny the petition.
Our review is limited to the BIA’s decision and those aspects of the IJ’s
decision that the BIA expressly adopts. See Singh v. Garland, 57 F.4th 643, 651
(9th Cir. 2023). We review the BIA’s legal conclusions de novo and the IJ’s
factual findings for substantial evidence. See Bringas-Rodriguez v. Sessions, 850
F.3d 1051, 1059 (9th Cir. 2017). We recount the facts only as necessary to our
disposition.
1. We previously remanded Petitioner’s earlier appeal to the BIA upon
the government’s unopposed motion to do so. In the instant appeal, Petitioner
argues that the BIA failed to comply with our remand order by failing to provide
additional analysis about whether Petitioner was entitled to a rebuttable
presumption of a well-founded fear of future persecution. We disagree. Our
remand order summarily stated that the motion for remand was granted. But even
if we assume that our remand order intended to encompass certain language from
the government’s motion,1 the BIA expressly acknowledged the rebuttable
1 In its motion, the government asked our court to “remand this case so the agency may further address the denial of Petitioners’ applications for asylum and withholding of removal.” It asked “[s]pecifically” that the BIA “provide additional
2 25-1552 presumption of a well-founded fear of future persecution and concluded that it
does not apply to Petitioner.2 The BIA explained that Petitioner “was not entitled
to a rebuttable presumption of a well-founded fear of persecution” because “[t]he
lack of government involvement . . . precludes [Petitioner] from establishing that
she suffered past persecution or that she has a well-founded fear of persecution.”
By arguing otherwise, Petitioner mischaracterizes the BIA’s decision.
2. Nor did the BIA err on remand by declining to apply the
burden-shifting framework in its evaluation of Petitioner’s asylum claim. The crux
of Petitioner’s argument is that the BIA ignored both the IJ’s finding that “[it] is
satisfied that with the other physical violence she claims . . . [her miscarriage] does
rise to the level of past persecution” and the IJ’s statement that he “found past
persecution.” According to Petitioner, these statements entitle her to the rebuttable
presumption of a well-founded fear of future persecution, which the BIA did not
analyze. However, even if Petitioner’s harm rose to the level of past persecution,
analysis regarding whether Petitioner benefits from a rebuttable presumption of a well-founded fear of future persecution and whether the government bore the burden of rebutting such a presumption.” 2 If an IJ finds that a petitioner has established past persecution, that petitioner is entitled to “a rebuttable presumption that a well-founded fear of future persecution exists.” Parada v. Sessions, 902 F.3d 901, 909 (9th Cir. 2018) (internal quotation omitted). The government then must rebut the presumption by demonstrating a fundamental change in circumstances or that the petitioner could avoid future persecution by relocating to another part of her country. See 8 C.F.R. § 1208.13(b)(1)(i); Mousa v. Mukasey, 530 F.3d 1025, 1029 (9th Cir. 2008).
3 25-1552 that finding does not mean that she is entitled to relief.
“An applicant alleging past persecution has the burden of establishing that
(1) [her] treatment rises to the level of persecution; (2) the persecution was on
account of one or more protected grounds; and (3) the persecution was committed
by the government, or by forces that the government was unable or unwilling to
control.” Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir. 2010). Here,
Petitioner is not entitled to relief because the IJ found that she has not shown that
the Peruvian government is unable or unwilling to protect her. The BIA did not
address whether Petitioner has a well-founded fear of future persecution because
she did not meet all the requirements to demonstrate persecution based on the IJ’s
other findings. This was not error because the BIA is not required to reach the
merits of issues that are unnecessary to the results that it reaches. See Simeonov v.
Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004).
That the IJ unnecessarily analyzed whether Petitioner’s past harm gave rise
to the rebuttable presumption of a well-founded fear of future persecution does not
mean the BIA erred by declining to do so. The BIA found “no clear error in the
[IJ’s] factual finding that the government of Peru is not unable or unwilling to
protect [Petitioner].” And the BIA correctly concluded that this finding is
dispositive because it is an element of claims for asylum based on past persecution,
“preclud[ing]” Petitioner from establishing that she suffered past persecution or
4 25-1552 has a well-founded fear of future persecution. See Lapadat v. Bondi, 145 F.4th
942, 957–58 (9th Cir. 2025).
To the extent that Petitioner challenges the IJ’s finding that the government
met its burden to rebut the presumption, “[o]ur review is limited to those grounds
explicitly relied upon by the Board.” Budiono v. Lynch, 837 F.3d 1042, 1046 (9th
Cir. 2016). The BIA did not address whether the government met its burden to
demonstrate a fundamental change in circumstances or Petitioner’s ability to
relocate within Peru because it concluded that the presumption did not apply.
Thus, we decline to do so.
Petitioner further argues that the BIA’s decision “places the burden on
[Petitioner] to show the Peruvian government was unable or unwilling to assist her,
conflating the legal requirements.” We reject this argument, too. First, Petitioner
does bear the burden to establish that harm that rises to the level of persecution
“was committed by the government, or by forces that the government was unable
or unwilling to control.” Baghdasaryan, 592 F.3d at 1023. And second, Petitioner
also bears the burden to demonstrate that the IJ erred in its factual findings on
appeal. See Cap. Sav. & Loan Ass’n v. Olympia Nat. Bank, 80 F.2d 561, 566 (9th
Cir. 1935) (appellants have the burden to demonstrate error on appeal). The BIA
did not err in its burden allocation.
3. Lastly, the BIA did not err in its decision to deny Petitioner’s claim
5 25-1552 for CAT protection because Petitioner waived her challenge to the IJ’s denial of
that claim. Again, even if we assume that our remand order intended to encompass
certain language from the government’s motion, the motion requested remand “so
the agency may further address the denial of Petitioners’ applications for asylum
and withholding of removal.” It did not mention Petitioner’s application for CAT
protection. Thus, the BIA correctly concluded that we did not instruct it to revisit
Petitioner’s CAT claim. And because Petitioner did not explain to the BIA why
the IJ erred in its denial of CAT protection based on lack of consent or the
acquiescence of a public official, the BIA did not err on remand in concluding that
her challenge to that determination was waived. See Singh v. Gonzales, 416 F.3d
1006, 1010 (9th Cir. 2005) (discussing the level of specificity needed to challenge
an IJ’s decision to adequately apprise the BIA of the issues on appeal). We decline
to review the merits of Petitioner’s claim for CAT protection because the BIA did
not do so, placing it outside our scope of review. See Budiono, 837 F.3d at 1046.
PETITION DENIED. Petitioner’s motion to stay removal, Dkt. 2, is
DENIED as moot. The temporary stay of removal, Dkt. 2, shall dissolve upon
issuance of the mandate.
6 25-1552