Leydi Rios-Valladares v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 28 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEYDI LISSETH RIOS-VALLADARES; No. 19-70887
I.E.B.R., a Juvenile; BLANCA ARMIDA
VALLADAREZ DE RIOS; BLANCA Agency Nos. A202-027-647
MERARY RIOS-DE SOTO; M.G.S.R., a A202-027-648
Juvenile; E.R.S.R., a Juvenile; ROBERTO A202-028-341
SORTO-VASQUEZ, A206-758-847
A206-758-848
Petitioners, A206-758-849
A206-759-485
v.
MERRICK B. GARLAND, Attorney MEMORANDUM*
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 15, 2021
San Francisco, California
Before: W. FLETCHER, RAWLINSON, and BADE, Circuit Judges.
Dissent by Judge W. FLETCHER
Petitioner Leydi Lisseth Rios-Valladares and members of her extended
family (Petitioners), natives and citizens of El Salvador, petition for review of a
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Board of Immigration Appeals’ (BIA) decision affirming the order of the
Immigration Judge (IJ) denying their applications for asylum and withholding of
removal. We have jurisdiction under 8 U.S.C. § 1252 and deny the petition for
review.
1. Asylum is unavailable if an applicant can safely relocate to another part of
the applicant’s home country. Duran-Rodriguez v. Barr, 918 F.3d 1025, 1029 (9th
Cir. 2019). Petitioners had the burden of establishing that such relocation was not
reasonable.1 8 C.F.R. § 1208.13(b)(3)(i). Substantial evidence supports the IJ’s
conclusion that Petitioners—supporters of the Nationalist Republican Alliance
(ARENA) party—could reasonably relocate within El Salvador. See Zehatye v.
Gonzales, 453 F.3d 1182, 1185 (9th Cir. 2006) (“[W]e must uphold the IJ’s
determination if it is supported by reasonable, substantial, and probative evidence
in the record.”).
1
Petitioners failed to exhaust and waived any challenge to the IJ’s
determination that they did not suffer past persecution because they did not
challenge it before the BIA or raise it in their opening brief in this court. See
Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (holding that
§ 1252(d)(1) mandates exhaustion and, thus, this court generally lacks jurisdiction
over “the merits of a legal claim not presented in the administrative proceedings
below”); Martinez-Serrano v. I.N.S., 94 F.3d 1256, 1259-60 (9th Cir. 1996)
(discussing waiver based on the failure to raise a claim in an opening brief).
Petitioners also waived any argument that they would be persecuted by the
government or a quasi-official group because they did not make that argument in
their opening brief and instead argued that they would be persecuted by “private
persecutors” that the government is unwilling or unable to control. See Martinez-
Serrano, 94 F.3d at 1259-60.
2
The IJ, based on review of the record evidence, concluded that there was “no
evidence that members of the ARENA party are targeted throughout El Salvador,”
and that various jurisdictions throughout El Salvador had elected ARENA party
members. Petitioners have not disputed these findings, which are supported by
substantial evidence. The IJ also noted that two family members—who were also
members of the ARENA party and had been threatened—had fled El Salvador but
later returned and remained unharmed. Petitioners argue that they are not similarly
situated to those family members because those family members are elderly, they
stay in their home, and they are no longer politically active. But before returning
to reside in El Salvador, one of these family members had previously returned
without incident. Petitioners do not address any other factors relevant to their
burden of showing that they are unable to reasonably relocate within El Salvador.
8 C.F.R. § 1208.13(b)(3); Knezevic v. Ashcroft, 367 F.3d 1206, 1214 (9th Cir.
2004) (discussing factors for determining reasonableness of internal relocation).
They have not shown that a “reasonable adjudicator would be compelled” to reach
a conclusion contrary to the one reached by the agency. 8 U.S.C. § 1252(b)(4)(B).
2. Substantial evidence also supports the denial of withholding of removal
based on the IJ’s finding that Petitioners had not shown that relocation within El
Salvador was unreasonable. See 8 C.F.R. § 208.16(b)(3).
PETITION DENIED.
3
FILED
Leydi Rios-Valladares, et al v. Merrick Garland, No. 19-70887
APR 28 2021
W. Fletcher, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I respectfully dissent. In my view, the IJ’s and BIA’s conclusions are not
supported by substantial evidence.
Petitioners, who were deemed credible, testified that they received repeated
death threats over a period of several months. During that time, one of their homes
was shot at and later set on fire. The perpetrators identified themselves as
affiliated with the FMLN party. They demanded that Petitioners pay extortion
money and that Petitioners stop supporting the ARENA party. Armed men have
continued to inquire about Petitioners’ whereabouts. Petitioners have thus
established that they have an objectively reasonable fear of future persecution on
account of their support for the ARENA political party.
The IJ’s and BIA’s conclusion that the FMLN was not responsible for
Petitioners’ persecution is not supported by substantial evidence. The IJ
incorrectly stated that the perpetrators never identified themselves as FMLN, and
overlooked evidence in the record that the FMLN promised gangs money and
lenient prison treatment in exchange for intimidating opposition voters.
Because I would conclude that Petitioners have an objectively reasonable
fear of future persecution by the Salvadoran government or a quasi-official group, I
would also conclude that the Department of Homeland Security (“DHS”) must
overcome the presumption that it would be unreasonable for Petitioners to relocate
within El Salvador. See 8 C.F.R. §1208.13(b)(3)(ii) (“In cases in which the
persecutor is a government or is government-sponsored, it shall be presumed that
internal relocation would not be reasonable.”). On the evidence in the record, DHS
cannot overcome that presumption.
2