BERRIOS RODRIGUEZ v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-07-02No. No. 15-70701

Summary · law.co

Holding. The petition for review was denied in part and dismissed in part. The court dismissed claims regarding withholding of removal and CAT protection for lack of jurisdiction and denied the asylum claim on the merits because substantial evidence supported the agency's finding that the harm suffered did not rise to the level of persecution.

Two Salvadoran nationals, Berrios-Rodriguez and Ayala-Ayala, sought review of the Board of Immigration Appeals' dismissal of their appeal challenging an immigration judge's denial of asylum, withholding of removal, and Convention Against Torture protection. Ayala-Ayala, who was a derivative applicant through marriage to Berrios-Rodriguez, had filed an independent application but did not appeal its denial to the BIA, placing that issue outside the court's jurisdiction. Similarly, the petitioners did not meaningfully contest the denials of withholding of removal or CAT protection before the BIA, so the court lacked authority to review those claims.

On the merits of the asylum claim, the court found substantial evidence supporting the agency's determination that harm inflicted on Berrios-Rodriguez by her ex-boyfriend did not constitute persecution under immigration law. The court rejected the petitioners' argument that the agency failed to consider evidence beyond a single violent incident, noting that both the BIA and immigration judge had expressly referenced other evidence in their decisions.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether harm from an ex-boyfriend constitutes persecution under asylum law
Jurisdictional limitations on appellate review when claims are not raised before the BIA
Whether the agency adequately considered all evidence in assessing persecution claims

Procedural posture

The petitioners appealed the BIA's dismissal of their appeal from an immigration judge's denial of asylum and related protection claims.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Santos Mayra Berrios-Rodriguez and Elvin Ayala-Ayala, natives and citizens of El Salvador, petition for review of the Board of Immigration Appeals’ (“BIA”) order dismissing their appeal from an immigration judges (“IJ”) decision denying Berrios-Rodriguezs application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”).

Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of law, Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008), except to the extent that deference is owed to the BIAs interpretation of the governing statutes and regulations, Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). We review for substantial evidence the agencys factual findings. Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006). We dismiss in part and deny in part the petition for review.

Ayala-Ayala is a derivative asylum applicant based on his marriage to Berrios-Rodriguez. He submitted an independent application on his own behalf but did not appeal the IJs denial of that application to the BIA. Also, as the BIA observed, Petitioners did not meaningfully challenge the IJs denials of withholding of removal or CAT protection before the BIA. We lack jurisdiction to consider those issues. Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004).

Substantial evidence supports the agencys conclusion that the harm inflicted on Berrios-Rodriguez by her ex-boyfriend did not rise to the level of persecution. See Gu v. Gonzales, 454 F.3d 1014, 1019 (9th Cir. 2006) (“Because persecution is an extreme concept, it does not include every sort of treatment our society regards as offensive.” (internal quotation marks omitted)); see also Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019) (“We have been most likely to find persecution where threats are repeated, specific and combined with confrontation or other mistreatment.” (internal quotation marks omitted)).

The record does not support Petitioners’ contention that the agency failed to consider evidence other than the single incident of violence that Berrios-Rodriguez suffered. The BIAs and the IJs decisions both expressly refer to that evidence.

The temporary stay of removal remains in place until issuance of the mandate.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.