PEREZ v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-08-13No. No. 19-72389

Summary · law.co

Holding. The petition for review is denied because substantial evidence supports the Board of Immigration Appeals' conclusion that Perez failed to demonstrate that the Salvadoran government was unable or unwilling to control his persecutors, as required for asylum or withholding of removal.

Eladio Antonio Perez Rodriguez, a Salvadoran national, sought asylum and withholding of removal after being kidnapped by gang members in El Salvador. He argued that the government was unable or unwilling to protect him from persecution. To succeed on either claim, he needed to demonstrate that his persecutors were beyond the government's ability or willingness to control.

The court found that substantial evidence supported the immigration authorities' conclusion that Perez failed to meet this standard. Salvadoran police responded quickly to his kidnapping, the gang members released him upon learning of the government response, and authorities arrested two of his attackers after he identified them. Police also provided Perez with protective escort services to multiple investigative meetings. Although some kidnappers remained at large and Perez received additional threats, the court determined that these facts did not outweigh the documented protective efforts by Salvadoran authorities.

Regarding his fear of future persecution, Perez contended that he would not receive the same level of government assistance if returned because his prior rescue depended on connections to local officials. The court rejected this argument as speculative, finding that the immigration authorities reasonably concluded Perez's concerns about future unwillingness or inability of the government to assist him were insufficient to establish eligibility for protection.

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

Key issues

Whether government responsiveness to kidnapping establishes ability and willingness to control persecutors
Standard of review for agency findings on government persecution and control
Speculative nature of future persecution claims when past government intervention was documented

Procedural posture

Perez petitioned for review of the Board of Immigration Appeals' affirmance of an Immigration Judge's denial of his asylum and withholding of removal applications.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM ***

Eladio Antonio Perez Rodriguez (“Perez”), a native and citizen of El Salvador, petitions for review of the decision of the Board of Immigration Appeals (“BIA”) affirming the order of the Immigration Judge (“IJ”) denying his applications for asylum and withholding of removal.

We have jurisdiction under § 242 of the Immigration and Nationality Act, 8 U.S.C. § 1252, and we deny the petition.

To qualify for either asylum or withholding of removal, the petitioner must show that the source of past persecution or feared future persecution is “ ‘the government or forces the government is either unable or unwilling to control.’ ” Doe v. Holder, 736 F.3d 871, 877–78 (9th Cir. 2013) (citation omitted). Substantial evidence supports the agencys conclusion that Perez did not satisfy this requirement.

As the IJ and BIA noted, police officers and members of the military responded within 30 minutes of learning that Perez had been kidnapped, and the gang members who had seized Perez released him and fled as soon as they found out that government personnel were on their way to rescue him. After Perez identified two of his assailants from photographs that he was shown at the police station later that day, the police arrested those two men, and charges were filed against them. Thereafter, the police escorted Perez to the jail to identify the two men, as well as to and from more than a half dozen meetings with the investigating detectives and the prosecutor. Perez notes that, despite these efforts, the other kidnappers were never caught; that he had remained in hiding until leaving El Salvador approximately 30 days later; and that additional threats were made against his sister. Although these points are not without some force, the agency was not compelled to find that they outweighed the ample record evidence confirming the substantial efforts made by Salvadoran authorities to protect Perez. 8 U.S.C. § 1252(b)(4)(B). Given that evidence, we cannot say that the agency acted unreasonably in concluding that Perez had not carried his burden to show that Salvadoran authorities were unable or unwilling to control his persecutors. See, e.g., Truong v. Holder, 613 F.3d 938, 941 (9th Cir. 2010) (lack of success in police investigative efforts does not necessarily establish “government complicity or indifference”).

Perez argues that he nonetheless has a reasonable fear of future persecution, because his connections to local mayors that led to his prior rescue would not be replicated if he is returned to El Salvador. However, the agency permissibly concluded that Perezs belief that Salvadoran authorities would not make adequate efforts was speculative and, in the agencys words, was “not a sufficient basis to conclude that the Salvadoran government is unwilling or unable to assist him.” See Movsisian v. Ashcroft, 395 F.3d 1095, 1097 (9th Cir. 2005) (asylum and withholding properly denied when agency permissibly concluded that fear of future persecution was speculative).

Because we uphold the agencys denial of asylum and withholding of removal based on Perezs failure to show that the Salvadoran government was unable or unwilling to control his persecutors, we need not address his other arguments.

The petition for review is DENIED.

FOOTNOTES

. Perezs opening brief does not challenge the agencys denial of his request for relief under the Convention Against Torture, so any such challenge has been forfeited. See Velasquez-Gaspar v. Barr, 976 F.3d 1062, 1065 (9th Cir. 2020).