Sanchez-Caceres v. Bondi

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 21, 2025
• Docket: 24-3457
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 21 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

VILMA ARACELY SANCHEZ- No. 24-3457 CACERES, Agency No. A208-270-349 Petitioner,

v. MEMORANDUM*

PAMELA BONDI, Attorney General,

Respondent.

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

Submitted May 19, 2025** Pasadena, California

Before: WARDLAW and JOHNSTONE, Circuit Judges, and RASH, District Judge.***

Vilma Aracely Sanchez-Caceres (“Sanchez”), a native and citizen of El

Salvador, petitions for review of a decision of the Board of Immigration Appeals

* 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 Scott H. Rash, United States District Judge for the District of Arizona, sitting by designation. (“BIA”) affirming an Immigration Judge’s (“IJ”) denial of her application for

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

Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252, and we grant in

part and deny in part Sanchez’s petition for review.

Where, as here, the BIA affirms the IJ “and also adds its own reasoning, we

review the decision of the BIA and those parts of the IJ’s decision upon which it

relies.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1027–28 (9th Cir. 2019)

(citation omitted). We review denials of asylum, withholding, and CAT relief for

substantial evidence. Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir.

2014). Under that standard, we accept the agency’s findings “unless any

reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.

§ 1252(b)(4)(B); see Garland v. Ming Dai, 593 U.S. 357, 365 (2021).

1. The BIA erred in denying Sanchez’s application for asylum and

withholding of removal. It erroneously concluded that Sanchez waived her

challenge to the IJ’s denial of her claims for asylum and withholding of removal,

reasoning that she did not meaningfully challenge the IJ’s determination as to past

persecution or whether she had an objectively reasonable fear of future

persecution.1 Though Sanchez’s brief before the BIA could have been more

1 Although we have not determined our standard of review for the BIA’s invocation of waiver and/or forfeiture, see Honcharov v. Barr, 924 F.3d 1293,

2 24-3457 clearly written, read as a whole, it sufficiently challenged the IJ’s determination

that she did not suffer past persecution or would face future persecution. The table

of contents and statement of the issues section of Sanchez’s brief clearly showed

that she was challenging the IJ’s determination that she did not suffer past

persecution or had a well-founded fear of future persecution. The factual history

section detailed her relevant testimony, with citations to the record, about the

gangs threats she and her husband received. The argument section set forth

applicable law on past persecution—including authority that threats may constitute

persecution—and on the resulting presumption of a well-founded fear of

persecution; then, referring back to her testimony, it argued that she had

established past persecution and fear of future persecution. This was sufficient to

“apprise the BIA of the particular basis for [her] claim that the IJ erred.”2 Rizo v.

Lynch, 810 F.3d 688, 692 (9th Cir. 2016). And for the same reasons, Sanchez met

the statutory exhaustion requirement of 8 U.S.C. § 1252(d)(1). See Bare v. Barr,

975 F.3d 952 (9th Cir. 2020) (“What matters is that the BIA was sufficiently on

notice so that it had an opportunity to pass on th[e] issue.’” (quoting Zhang v.

1297 (9th Cir. 2019) (per curiam), we need not resolve that here. Even under a deferential standard, see, e.g., Nolasco-Amaya v. Garland, 14 F.4th 1007, 1012 (9th Cir. 2021), the BIA abused its discretion. 2 Indeed, the BIA acted inconsistently by addressing Sanchez’s challenge to the IJ’s CAT determination on the merits, despite the fact that her argument in that section was substantially similar to her challenge to the IJ’s asylum and withholding of removal determination.

3 24-3457 Ashcroft, 388 F.3d 713, 721 (9th Cir. 2004) (per curiam))). Accordingly, we

remand Sanchez’s petition to the BIA for consideration of the merits of her

application for asylum and withholding of removal. See I.N.S. v. Ventura, 537

U.S. 12, 16–17 (2002) (per curiam).

2. Substantial evidence supports the agency’s determination that

Sanchez did not demonstrate that it is more likely than not she would be tortured

by criminals in El Salvador. The agency reasonably found that Sanchez did not

experience past torture and that the relative safety of Sanchez’s mother—who was

similarly situated to Sanchez—undercut the possibility that Sanchez would be

tortured if she returned to El Salvador. See Dawson v. Garland, 998 F.3d 876, 882

(9th Cir. 2021) (“Past torture is one such relevant consideration . . . in that

someone who has been tortured in the past is likely to be tortured in the future if

returned to the same situation.”); Santos-Lemus v. Mukasey, 542 F.3d 738, 748 (9th

Cir. 2008), abrogated on other grounds by Henriquez-Rivas v. Holder, 707 F.3d

1081 (9th Cir. 2013) (relative safety of a similarly situated family member

supported the BIA’s finding that it is not more likely than not that the petitioner

would be tortured). Furthermore, the record does not compel the conclusion that

the government would acquiesce to torture. Though Sanchez noted that the

Salvadoran police would not be effective in helping her, “a general ineffectiveness

on the government’s part to investigate and prevent crime will not suffice to show

4 24-3457 acquiescence.” Andrade-Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 2016).

PETITION GRANTED IN PART, DENIED IN PART, AND REMANDED.3

3 Each party shall bear its own costs on appeal. The temporary stay (Dkt. No. 11) will remain in place until the mandate issues.

5 24-3457