J.R. v. William Barr ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
J.R., No. 18-72812
Petitioner,
Agency No.
v. A216-271-552
WILLIAM P. BARR, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 6, 2020
Seattle, Washington
Filed September 11, 2020
Before: Andrew J. Kleinfeld, William A. Fletcher, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge W. Fletcher;
Dissent by Judge Rawlinson
2 J.R. V. BARR
SUMMARY*
Immigration
Granting JR’s petition for review of the Board of
Immigration Appeals’ decision affirming an immigration
judge’s denial of asylum and withholding of removal, and
remanding, the panel held that substantial evidence did not
support the Board’s conclusion that the El Salvadoran
government was both able and willing to control the Mara-18
gang whose members attacked JR and killed his son.
The panel held that the record before the IJ and Board
compelled the conclusion that, despite initial responsiveness
to JR’s complaints, the police were unable, and then
unwilling, to protect JR and his family from the Mara-18
gang. The panel recounted that after a gang member cut off
two of JR’s fingers, and the gang member was briefly
imprisoned after JR reported the crime, gang members shot
JR seven times, causing him to lose one of his lungs. A few
months later, the gang murdered JR’s son at home, and after
reporting the murder and agreeing to cooperate with
prosecutors, JR received a death threat from the local “boss”
of the gang. Although the government provided protection
before JR gave his testimony, it withdrew that protection after
he testified. Soon thereafter, JR and his family fled the
country. The panel concluded that, given its withdrawal of
protection, the El Salvadoran government was, in fact,
“unwilling to protect” JR.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
J.R. V. BARR 3
The panel explained that the undisputed factual record
before the IJ and Board reflected actual deadly violence that
the government was, during certain periods, unable to control,
and threats of additional deadly violence that the government
was entirely unwilling to control after JR testified. The panel
stated that this was enough to show government
unwillingness and inability to control the gang. The panel
noted that the law does not require applicants to wait until
gang members carry out their deadly threats before they are
eligible for asylum.
Because the Board did not reach the questions of whether
JR was a member of a particular social group, or whether he
suffered harm rising to the level of persecution, the panel
remanded for the Board to address those issues in the first
instance.
Judge Rawlinson dissented reluctantly because, in her
view, the stringent standard of review under which this court
must resolve these cases does not permit the result reached
by the majority. Judge Rawlinson wrote that the majority did
not, and cannot, cite a case from this circuit concluding that
the panel was compelled to conclude that a country was
unwilling to provide protection in the face of similarly
extensive police and prosecutorial responses as occurred in
this case. Judge Rawlinson wrote that the majority made
much of the fact that the government did not continue
protective custody for JR’s family indefinitely after the trial
concluded, but she noted that protective custody is not the
only means of manifesting a willingness or ability to protect
4 J.R. V. BARR
citizens, and that the fact remains that JR and his family were
not harmed in any way during the period following the trial
until they left the country.
COUNSEL
Eva Sharf (argued) and Malori M. McGill (argued), Certified
Law Students; Elizabeth G. Porter (argued) and Jeffrey M.
Feldman (argued), Faculty Advisors; Ninth Circuit Appellate
Advocacy Clinic, University of Washington School of Law,
Seattle, Washington; for Petitioner.
David Kim (argued) and David J. Schor, Trial Attorneys;
Kohsei Ugumori, Senior Litigation Counsel; Joseph H. Hunt,
Assistant Attorney General; Office of Immigration Litigation,
Civil Division, United States Department of Justice,
Washington, D.C.; for Respondent.
OPINION
W. FLETCHER, Circuit Judge:
JR petitions for review of the denial of his application for
asylum and withholding of removal. The Immigration Judge
(“IJ”) denied relief on the ground that JR had failed to show
that the government of El Salvador was “unwilling or unable”
to control his alleged persecutors. The Board of Immigration
Appeals (“BIA”) affirmed on the same ground. We hold that
substantial evidence does not support the BIA’s conclusion.
We grant the petition and remand for further proceedings
consistent with this opinion.
J.R. V. BARR 5
I. Background
A. Factual Background
JR’s hearing before the IJ was conducted by video. At the
time of his hearing, JR was incarcerated in Tacoma,
Washington. He appeared without an attorney. The IJ and
the government attorney were in San Diego. Because the IJ
found JR to be a credible witness, we take as the true the
following narrative based on JR’s testimony.
JR and his common-law wife lived in El Salvador with
their children until 2017. The family began experiencing
problems with the Mara-18 gang in 2012, when JR’s nephew,
a member of the gang, cut off two of JR’s fingers. JR
reported the incident to police, and the nephew was arrested
and spent five months in jail. In January 2016, gang
members shot JR seven times. He lost his right lung as a
result. Six months later, a group of nine gang members shot
and killed JR’s son on the front porch of JR’s home. JR’s
family filed a police report, naming the local leader of the
Mara-18 gang and the gang leader’s brother as members of
the group.
In November and December of 2016, the police detained
three gang members involved in JR’s son’s murder, including
the local gang leader and his brother. Despite the risks, JR
agreed to proceed with the case and testify as a witness in
their criminal trials. He told the IJ:
[T]he boss of [Mara-18] wanted me to go and
remove the report that I did, that I filed of my
son’s death, and I didn’t want to do that. I
told him that this was not a game, this was not
6 J.R. V. BARR
a movie that he had done. I told him it was a
death. It was a homicide, a murder. And I
told him to be a man and to be in jail because
it was not a game what he had done. So then
he said—so you will die, he told me.
Gang members pressured JR to withdraw his report so that
the arrested members would be released. JR refused.
Because of the danger to JR and his family, the prosecutor’s
office relocated JR’s family to a different town, Usulután,
while JR stayed behind to testify.
The trial judge warned JR “to leave, to get out of there.”
With the help of police and the prosecutors’ office, JR joined
his family in Usulután in July 2017 after testifying. Shortly
thereafter, the government withdrew its protection of JR and
his family. Fearing the gang, JR and his family fled El
Salvador in September 2017.
JR, his partner, and their two surviving children arrived
at the San Ysidro, California port of entry in December 2017.
JR immediately requested asylum on behalf of himself and
his family, citing fear of the Mara-18 gang, which was
“looking for [him] every day to kill [him].”
After the trial in El Salvador, the three gang members
were convicted and sentenced. Two other gang members
involved with the murder of JR’s son were shot and killed by
the police in December 2016. The remaining four gang
members involved in the murder have fled to the United
States. However, the gang remains powerful in El Salvador.
The IJ asked JR, “Why are you afraid to go back?” JR
responded, “Because upon arrival, I’m going to be dead.”
J.R. V. BARR 7
B. Proceedings Below
JR was issued a Notice to Appear charging him with
being removable as a noncitizen without valid entry
documents at time of admission. JR conceded removability
at his hearing. The IJ found JR to be a credible witness but
denied his claims for asylum, withholding of removal, and
relief under CAT.
The IJ said in his oral decision, “The Court also notes
there is case law, Henriquez-Rivas . . . that a witness in a
criminal case could possibly be a particular social group.”
But the IJ declined to decide whether JR was member of a
particular social group. The IJ denied relief solely on the
ground that JR had not shown that the El Salvadoran
government was unwilling or unable to protect him. The IJ
cited as support the fact that the police had arrested JR’s
nephew; that the government had arrested, tried, and
convicted three gang members involved in his son’s murder;
and that the police had killed two others. The IJ also relied
on JR’s participation in what the IJ called a “witness
protection program”—referring to the relocation of JR and his
family to Usulután—as showing the government’s
willingness and ability to protect JR. Finally, the IJ cited
examples in the country report of the El Salvadoran
government “strik[ing] blow[s] against gang[s] in operation.”
The IJ held that because JR failed to show government
unwillingness or inability for purposes of asylum, he
necessarily failed to make the more stringent showing for
withholding of removal.
After the IJ announced his oral decision denying relief, JR
said, “Well, this is the judge, but what can we do? I mean
I’m going to have to die.”
8 J.R. V. BARR
The BIA affirmed the denial of relief. It relied on the
same ground as the IJ, citing the facts of JR’s nephew’s
arrest; the arrest, conviction, and killing of gang members
involved in JR’s son’s murder; and the fact that JR’s “family
was placed in a witness protection program.” The BIA did
not reach the questions whether JR was a member of a
particular social group and whether JR had suffered harm
rising to the level of persecution.
JR timely petitioned for review of the BIA’s denial of
asylum and withholding of removal. He has not petitioned
for review of its denial of CAT relief.
JR moved in this court for a protective order allowing
redaction of his name from court documents to ensure his
safety from the gang. In a sworn declaration in support of his
motion, JR recounted that after the trial he had moved to
Usulután to live with his wife’s uncle, who is a policeman.
Soon thereafter, the gang discovered JR was in Usulután. It
began threatening the uncle’s family and offered a $500
reward for the murder of JR. JR fled for the United States
after the uncle told him to leave. When JR reached Mexico,
he learned that Mara-18 had attacked the uncle and had killed
the uncle’s brother. The three men convicted of the murder
of JR’s son have also been released from prison. Based on
JR’s declaration, we granted the motion to redact his name.
II. Legal Standard
We review the agency’s legal conclusions de novo and its
factual findings for substantial evidence. Bringas-Rodriguez
v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc).
A finding is not supported by substantial evidence when
“‘any reasonable adjudicator would be compelled to conclude
J.R. V. BARR 9
to the contrary’ based on the evidence in the record.” Id.(quoting 8 U.S.C. § 1252(b)(4)(B)). Where, as here, the BIA
“adopt[s] and affirm[s] the decision of the IJ but also adds its
own analysis, the scope of our review extends to the decisions
of both the IJ and the BIA.” Wakkary v. Holder, 558 F.3d
1049, 1056 (9th Cir. 2009) (alteration in original) (internal
quotation marks and citation omitted).
III. Discussion
A. “Unable or Unwilling”
“In order to establish eligibility for asylum on the basis of
past persecution, an applicant must show: (1) an incident, or
incidents, that rise to the level of persecution; (2) that is on
account of one of the statutorily-protected grounds; and (3) is
committed by the government or forces the government is
either unable or unwilling to control.” Navas v. INS,
217 F.3d 646, 655–56 (9th Cir. 2000) (footnotes and internal
quotation marks omitted); 8 U.S.C. § 1101(a)(42)(A). The
BIA and IJ declined to address the first two requirements and
denied relief based on the third requirement alone.
For the reasons that follow, we hold that substantial
evidence does not support the BIA’s conclusion that the El
Salvadoran government was both able and willing to control
the Mara-18 gang whose members attacked JR and killed his
son.
Because the Mara-18 gang members are nongovernmental
actors, JR must show that the El Salvadoran government is
“unable or unwilling” to control them. See Doe v. Holder,
736 F.3d 871, 877–78 (9th Cir. 2013); 8 U.S.C.
§ 1101(a)(42)(A). The BIA focused on the government’s
10 J.R. V. BARR
responses to JR’s complaints, such as arresting his nephew
and relocating JR’s family after JR agreed to testify against
the gang members.
Some official responsiveness to complaints of violence,
although relevant, does not automatically equate to
governmental ability and willingness. “Even if [an
applicant’s] ability to file a police report suggests that the
police were willing to protect [him], that says little if anything
about whether they were able to do so.” Afriyie v. Holder,
613 F.3d 924, 931 (9th Cir. 2010), overruled on other
grounds by Bringas-Rodriguez, 850 F.3d at 1070.
Willingness to control persecutors notwithstanding,
authorities may nevertheless be “powerless to stop” them
because of a “lack of . . . resources or because of the character
or pervasiveness of the persecution.” Id. We have previously
held, for example, that the BIA erred by “focus[ing] only on
the Mexican government’s willingness to control Los Zetas,
not its ability to do so.” Madrigal v. Holder, 716 F.3d 499,
506 (9th Cir. 2013). Conversely, authorities may simply be
unwilling to control persecutors, where, for instance, they
themselves harbor animus towards a protected group. See,
e.g., Korablina v. INS, 158 F.3d 1038, 1045 (9th Cir. 1998)
(“[T]he police, known as the militia, are a part of the same
ultra-nationalist and anti-Semitic group, and . . . the State
does not make any effort to protect Jews or to stop anti-
Semitism.”); Mashiri v. Ashcroft, 383 F.3d 1112, 1121–22
(9th Cir. 2004). In other words, the question on this step is
whether the government both “could and would provide
protection.” Rahimzadeh v. Holder, 613 F.3d 916, 923 (9th
Cir. 2010) (emphasis added).
The record before the IJ and BIA compels the conclusion
that, despite initial responsiveness to JR’s complaints, the
J.R. V. BARR 11
police were unable, and then unwilling, to protect JR and his
family from the Mara-18 gang. After a gang member cut off
two of his fingers, JR reported the crime, and the member
was briefly imprisoned. However, after that incident, gang
members shot JR seven times. JR survived, but lost one of
his lungs. A few months later, the gang murdered JR’s son at
home. After reporting the murder and agreeing to cooperate
with prosecutors, JR received a death threat from the local
“boss” of the gang. Although the government provided
protection before JR gave his testimony, it withdrew that
protection after he testified.
Had the government been willing to continue to provide
effective protection, JR would have lacked a viable claim, for
the government would have been both willing and able to
protect him. But the question is whether the government both
“could and would provide protection” from private
persecutors. Rahimzadeh, 613 F.3d at 923 (emphasis added).
Even if the government could protect JR and his family, it is
undisputed that, after JR finished testifying, it no longer
would do so. Given its withdrawal of protection, the El
Salvadoran government was, in fact, “unwilling to protect”
JR. Afriyie, 613 F.3d at 931.
Two months after the government refused to provide
protection, JR fled the country with his family. While the
family was not harmed by the gang during those two months,
“a post-threat harmless period need not vanquish an asylum
claim, particularly where significant evidence suggests that
the threats are becoming more menacing.” Kaiser v.
Ashcroft, 390 F.3d 653, 659 (9th Cir. 2004) (quoting Lim v.
INS, 224 F.3d 929, 935 (9th Cir. 2000)). In Kaiser, we found
that petitioners who had received death threats for thirteen
years—“none of [which] had been carried out”—still carried
12 J.R. V. BARR
their burden to show government inability and unwillingness.
Id. There, petitioners had shown that the threats had
increased in frequency and severity, one of the petitioner’s
colleagues had been murdered, and documentary evidence
illustrated the persecutor’s “willingness to use violence to
further its objectives.” Id.; see also Lin, 224 F.3d at 935(petitioner’s failure to flee for six years after the first death
threat did not defeat asylum claim).
As in Kaiser, the country conditions evidence supports
JR’s undisputed testimony about gang members’ “willingness
to use violence to further [the gang’s] objectives.” Kaiser,
390 F.3d at 659. As a May 2016 news story in the record
reports, the Supreme Court of El Salvador designated the
Mara-18 gang as a “terrorist organization” just months before
the murder of JR’s son. It further notes that the government’s
strategy against the gangs “has so far failed to pay security
dividends.” At about the time JR and his family suffered
their attacks, El Salvador “became the most homicidal nation
. . . in the world not at war.” The country conditions report
notes that “more than one in five families claim to have been
victims of violent crimes,” and that “[i]n many
neighborhoods, armed groups and gangs targeted certain
persons, interfered with privacy, family, and home life, and
created a climate of fear that the authorities were not capable
of restoring to normal.”
The government argues that the protection provided to
JR and his family “confirms that the government is neither
unable nor unwilling to extend protection.” The government
cites Doe v. Holder, 736 F.3d 871 (9th Cir. 2013), contending
that it held that an “applicant fails to carry his burden where,
as here, police take reports and indicate that they will
investigate an alleged crime.” Doe did not so hold. Doe held
J.R. V. BARR 13
instead that “where the asylum applicant failed to provide the
police with sufficiently specific information to permit an
investigation or an arrest,” the police’s inability to solve a
crime does not show government inability or unwillingness
to control persecutors. Doe, 736 F.3d at 878; see also Afriyie,
613 F.3d at 931 (taking of report by police does not show
government ability). Other cases cited by the government are
unhelpful to the government for this reason. See, e.g., Truong
v. Holder, 613 F.3d 938, 941 (9th Cir. 2010) (petitioners did
not know “who their assailants were and what motivations
they may have had”); Nahrvani v. Gonzales, 399 F.3d 1148,
1154 (9th Cir. 2005) (petitioner did not give police names of
any suspects).
Here, JR filed a police report after a gang member cut off
two of his fingers. Members of the gang thereafter shot JR
seven times, and then shot and killed JR’s son on the front
porch of his house. When JR refused to withdraw a police
report after the death of his son, the “boss” of the gang
warned JR: “So then he said—so you will die, he told me.”
Gang members were “looking for [him] every day to kill
[him].” When JR testified against the gang members in
open court, resulting in their eventual conviction and
imprisonment, the El Salvadoran judge urged him to flee. It
is undisputed that the El Salvadoran government withdrew its
protection from JR and his family after he testified. Soon
thereafter, JR and his family fled the country.
Our dissenting colleague lists several actions of the El
Salvadoran government, concluding that JR has not shown
that the government was either unwilling or unable to protect
him. However, the dissent focuses solely on the
government’s protection during the time leading up to JR’s
testimony. It ignores the fact that after JR finished testifying
14 J.R. V. BARR
in support of the prosecution, the government was no longer
willing to protect him.
The undisputed factual record that was before the IJ and
BIA reflects actual deadly violence that the government was,
during certain periods, unable to control, and threats of
additional deadly violence that the government was entirely
unwilling to control after JR testified. This is enough. Our
law does not require applicants to wait until gang members
carry out their deadly threats before they are eligible for
asylum. Substantial evidence does not support the BIA’s
determination otherwise.
B. Particular Social Group and Harm Rising to
the Level of Persecution
JR, like the petitioner in Henriquez-Rivas v. Holder,
707 F.3d 1081 (9th Cir. 2013) (en banc), is an El Salvadoran
witness who testified in court against gang members. We held
in Henriquez-Rivas that such persons are members of a
particular social group, given “significant evidence that
Salvadoran society recognizes the unique vulnerability of
people who testify against gang members in criminal
proceedings.” Id. at 1092.
We have held that far less serious harm than that JR
suffered rises to the level of persecution. See, e.g., Surita v.
INS, 95 F.3d 814, 819–20 (9th Cir. 1996) (holding petitioner
established past persecution where she had been robbed
multiple times over the course of one week); Artiga Turcios
v. INS, 829 F.2d 720, 722–24 (9th Cir. 1987) (holding
petitioner established past persecution where neighbor
relayed men had been looking for him and “warned him to
leave because he might be killed”); Mihalev v. Ashcroft, 388
J.R. V. BARR 15
F.3d 722, 729 (9th Cir. 2004) (holding petitioner established
past persecution where he was jailed for ten days and beaten,
but had not “suffered a significant injury”); see also Baballah
v. Ashcroft, 367 F.3d 1067, 1074, 1076 (9th Cir. 2004)
(“Threats and attacks can constitute persecution even where
an applicant has not been beaten or physically harmed. . . .
An applicant may suffer persecution because of the
cumulative impact of several incidents even where no single
incident would constitute persecution on its own.”).
However, the BIA did not reach the questions whether JR
is a member of a particular social group or whether he
suffered harm that rises to the level of persecution. Under
INS v. Ventura, we cannot ourselves decide those questions
in the first instance. 537 U.S. 12, 16–18 (2002) (per curiam).
We are therefore obliged to remand JR’s petition to the BIA
for further proceedings.
JR was incarcerated from the date of his arrival in the
United States in December 2017 until May 2020, waiting for
his application to be adjudicated. He has recently been
released after being determined, based on his medical records,
to face a “higher risk of serious illness due to COVID-19.”
Dkt. No. 45. We are not in a position to dictate the manner
and speed in which JR’s application is handled on remand.
However, given the circumstances of this case, we encourage
the government and the BIA to act expeditiously in resolving
the issues that remain.
Conclusion
We hold that substantial evidence does not support the
BIA’s conclusion that the El Salvadoran government is
willing and able to control the Mara-18 gang that attacked JR
16 J.R. V. BARR
and killed his son, and that continues to be a threat. We grant
JR’s petition and remand for further proceedings consistent
with this opinion.
Petition for review GRANTED and REMANDED.
RAWLINSON, Circuit Judge, dissenting:
I reluctantly dissent because the stringent standard of
review under which we must resolve these cases does not
permit the result reached by the majority. As the majority
acknowledges, we may grant relief on a petition for review of
a Board of Immigration decision “only if the evidence
compels a contrary conclusion from that adopted by the BIA.”
Afriyie v. Holder, 613 F.3d 924, 931 (9th Cir. 2010),
overruled on other grounds in Bringas-Rodriguez v. Sessions,
850 F.3d 1051, 1069 (9th Cir. 2017) (en banc), (citation
omitted) (emphasis added).
I take no issue with the majority’s articulation of this
stringent standard. The problem is with the majority’s failure
to actually apply this standard to the facts before us.
The pivotal question in this case was whether El
Salvadoran officials were willing and able to protect JR and
his family. The record and the law compel us to answer
“yes” rather than “no.”
It is beyond dispute that JR and his family suffered
horrendous harm at the hands of gang members in El
Salvador. The government does not dispute that fact. Neither
does the government contend that these horrendous events did
J.R. V. BARR 17
not rise to the level of persecution. The government’s only
contention is that the El Salvadoran government was willing
and able to protect J.R. and his family.
It is undisputed that the El Salvadoran government took
the following actions in response to J.R.’s report of the crimes
perpetrated against him and his family:
• Arrested and incarcerated J.R.’s gang member
nephew after he cut off two of J.R.’s fingers.
• Arrested, prosecuted, convicted, and incarcerated
three gang members involved with the murder of
J.R.’s son.
• Killed in a shoot-out two other gang members
involved with the murder of J.R.’s son.
• Relocated J.R. and his family pre-trial and post-trial.
• Caused four of the gang members involved with the
murder of J.R.’s son to flee to the United States.
Despite these substantial and effective actions taken by
the El Salvadoran government, the majority takes the position
that a reasonable adjudicator would nevertheless be
compelled to conclude that the El Salvadoran government
was unwilling or unable to protect J.R. and his family.
This would be a different case if gang members stormed
the location where J.R. and his family were being held and
dragged them out them out at gunpoint, or if the government
refused to apprehend and prosecute the perpetrators, or if
gang members continued to terrorize J.R. and his family after
18 J.R. V. BARR
he testified against the gang members. But that is not what
happened in this case. Indeed, J.R. and his family remained
unmolested following the trial until they left for America. As
we recognized in Afriyie, “the authorities’ response (or lack
thereof) to . . . requests [for protection] may provide powerful
evidence with respect to the government’s willingness or
ability to protect the requestor.” Id. (citation omitted)
(emphasis added). The clear implication of this language is
that an affirmative response connotes a willingness and
ability to protect the individual requesting protection.
Conversely, the lack of a response signals an unwillingness
and inability to protect. See id. Under our expressed
rationale in Afriyie, the significant affirmative actions taken
by the El Salvadoran government in response to J.R.’s report
of the horrendous crimes committed against him and his
family by gang members constitute “powerful evidence with
respect to [El Salvador’s] willingness and ability to protect
[J.R. and his family].” Id.In Afriyie, we described the circumstances reflecting a
government that was unwilling and unable to protect an
asylum applicant. We observed that “an inability to provide
protection may arise because of a lack of financial and
physical resources.” Id. (citation omitted). Specifically, in
Afriyie’s case, we noted that “the Ghanaian police forces
lacked the resources necessary to protect [Afriyie].” Id.
at 932. The police force only had one gun “for the entire
[police] station” and “expected individuals reporting crimes
to track down and bring in the perpetrators.” Id. That two
murders were reported to the police, “with no apparent
progress in solving them, is highly relevant evidence to the
question whether Ghanaian authorities were unable, even if
willing, to protect Afriyie.” Id. By the same token, the
extensive and effective efforts on the part of El Salvadoran
J.R. V. BARR 19
police officials on behalf of J.R.’s family is “highly relevant
evidence” that the El Salvadoran authorities were willing and
able to protect J.R. and his family. Id. At bottom, the
scenario in Afriyie is a far cry from the circumstances
presented to us.
Neither are the other cases cited by the majority
analogous to the facts in this case. In Doe v. Holder,
736 F.3d 871, 878 (9th Cir. 2013), we referenced our decision
in Mashiri v. Ashcroft, 383 F.3d 1112, 1115 (9th Cir. 2004).
We recounted that in Mashiri, the evidence in the record
“compelled the conclusion that the government was unable or
unwilling to protect the applicant where police investigated
but made no arrests after the applicant’s husband was
beaten.” Id. We noted that the police in Mashiri “quickly
closed their investigation into the attack on her family’s
apartment as simple theft, despite evidence that the attack
was motivated by anti-foreigner hatred.” Id. at 878–79.
We then likened the facts in Mashiri to those in Doe,
observing that the “police rejected [Doe’s] first complaint out
of hand, questioning why he did not simply defend himself.”
Id at 879. The police summarily dismissed his second request
for assistance “without doing anything more than
interviewing him at the hospital” despite substantial evidence
that both assaults “were motivated by anti-homosexual bias.”
Id.The lackadaisical police efforts described in Mashiri and
Doe bear no resemblance to the targeted, sustained response
by the El Salvadoran police in response to J.R.’s reports of
the violence perpetrated against him and his family.
Understandably, the panels in Afriyie, Mashiri and Doe could
reasonably and easily determine that they were compelled to
20 J.R. V. BARR
conclude that the police were not willing and able to protect
the asylum seekers in those cases. See, e.g., Afriyie, 613 F.3d
at 934 (“Given this state of the credited record, any
reasonable factfinder would be compelled to conclude that the
Ghanaian police were unable or unwilling to protect
Afriyie. . . .”). But the stark difference in the response of the
El Salvadoran police in this case renders the outcomes in
those cases readily distinguishable.
In Madrigal v. Holder, 716 F.3d 499 (9th Cir. 2013), a
case that also involved a violent gang, the underlying facts
presented a stark contrast to those before us. The panel in
Madrigal remanded to the BIA for a determination whether
Mexican authorities were able to control a gang called Los
Zetas. The panel questioned the Mexican government’s
willingness to control the gang due to the “continu[ing] . . .
problem” of “corruption at the state and local levels,” despite
the “superior efforts of the Mexican government at the
national level.” Id. at 507. The panel also referenced the fact
that “[m]any police officers are involved in kidnapping,
extortion, or providing protection for, or acting directly on
behalf of, organized crime and drug traffickers.” Id. (citation
and internal quotation marks omitted). This widespread
corruption led to “the continued reluctance of many victims
to file complaints.” Id. (internal quotation marks omitted).
Finally, the panel noted the “rampant” corruption among
prison guards, resulting in prisoners “break[ing] out of prison
with the guards’ help.” Id. (citation omitted). Once again,
the facts relied upon by the panel to cast doubt on the
Mexican government’s ability to control the gang are not
reflected in the facts of this case involving El Salvadoran
officials who responded emphatically to apprehend,
prosecute, and incarcerate the gang members involved in the
heinous crimes perpetrated against J.R. and his family.
J.R. V. BARR 21
In sum, the majority does not, and cannot, cite a case from
this circuit concluding that the panel was compelled to
conclude that a country was unwilling to provide protection
in the face of similarly extensive police and prosecutorial
responses as occurred in this case. The majority makes much
of the fact that the government did not continue protective
custody for J.R.’s family indefinitely after the trial concluded.
However, protective custody is not the only means of
manifesting a willingness or ability to protect citizens and
nothing in our precedent supports such a requirement. Cf.
Truong v. Holder, 613 F.3d 938, 941 (9th Cir. 2010)
(explaining that the argument that the government was
unwilling or unable to control the persecutors was
“undermined by the fact that [the petitioners] repeatedly
sought assistance from the . . . police, who dutifully made
reports after each incident and indicated that they would
investigate”). And the fact remains that J.R. and his family
were not harmed in any way during the period following the
trial until they left the country. Although I am extremely
sympathetic to the plight of J.R. and his family, our standard
of review does not permit the relief granted by the majority.
I respectfully dissent.