Teresa Reyes Villanueva v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 2 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TERESA REYES VILLANUEVA, No. 19-72215
Petitioner, Agency No. A200-006-207
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 16, 2020
Seattle, Washington
Before: GOULD and FRIEDLAND, Circuit Judges, and BOUGH,** District
Judge.
Teresa Reyes Villanueva, a native and citizen of El Salvador, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal
from an immigration judge’s decision denying her application for asylum,
withholding of removal, and relief under the Convention Against Torture. We
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Stephen R. Bough, United States District Judge for the
Western District of Missouri, sitting by designation.
have jurisdiction under 8 U.S.C. §1252. We review for substantial evidence the
agency’s factual findings. Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir.
2014). We grant the petition for review, and we remand.
The agency accepted as credible Reyes Villanueva’s testimony and that of
an expert witness, but found that Reyes Villanueva failed to establish that the
Salvadoran government was unable or unwilling to control her former partner,
Hector, and his fellow gang members. Substantial evidence does not support this
finding. Hector severely and repeatedly abused Reyes Villanueva and her family.
The Salvadoran government prosecuted and imprisoned Hector but, from prison,
Hector extorted Reyes Villanueva, threatened her family, and ordered Reyes
Villanueva’s death. Gang members attempted to carry out the kill order and
brutally murdered a friend who was helping Reyes Villanueva. Documentary
evidence, including the Department of State Human Rights Report and expert
declarations, indicate that gang members perpetrate criminal activity, including
murder, from within prison; prison guards and officials are sometimes complicit in
this activity; and gangs have consolidated and expanded their networks from
within prison.
In finding that Reyes Villanueva did not establish that the Salvadoran
government was unable or unwilling to control Hector, the BIA erred by relying on
Hector’s imprisonment without considering evidence that gang members order
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crimes from within prison. See Davila v. Barr, 968 F.3d 1136, 1143 (9th Cir.
2020) (holding that the agency erred by selectively citing evidence); Bringas-
Rodriguez v. Sessions, 850 F.3d 1051, 1069 (9th Cir. 2017) (en banc) (explaining
that the agency “must examine all the evidence in the record that bears on the
question of whether the government is unable or unwilling to control a private
persecutor”); Madrigal v. Holder, 716 F.3d 499, 506 (9th Cir. 2013) (holding that
the agency erred by focusing “only on the Mexican government’s willingness to
control Los Zetas, not its ability to do so”). Viewed as a whole, the record here
does not provide substantial evidence for the agency’s conclusion that the
Salvadoran government is both willing and able to protect Reyes Villanueva.1 See
Davila, 968 F.3d at 1142-43 (holding that the agency’s selective reading of the
record did not support its conclusion that the Nicaraguan government was both
willing and able to protect the petitioner).
We do not reach the parties’ contentions as to whether the unable-or-
unwilling standard requires a showing that the government is “completely
helpless” because the agency did not rely on the “completely helpless”
formulation. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004) (courts
and agencies are not required to decide issues unnecessary to the results they
1
For the same reasons that we grant and remand the petition as to Reyes
Villanueva’s claim for asylum, we also grant the petition and remand to the BIA to
reconsider Reyes Villanueva’s application for withholding of removal.
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reach).
The BIA did not address whether Reyes Villanueva belonged to a cognizable
social group or was persecuted on account of her membership in that social group.
We remand so that the BIA may consider these issues for the first time. See INS v.
Ventura, 537 U.S. 12, 16-18 (2002) (per curiam); see also Najmabadi v. Holder,
597 F.3d 983, 986 (9th Cir. 2010) (“[O]ur review is limited to the actual grounds
relied upon by the BIA.” (citation and internal quotation marks omitted)).
As to CAT, the BIA determined that Reyes Villanueva did not establish the
requisite state action, relying on the Salvadoran government’s willingness to
imprison Hector and other gang members. Because the BIA’s reasoning suffers
from the same flaws discussed above, substantial evidence does not support this
determination. See Davila, 968 F.3d at 1144 (holding that, where the agency
applied the same erroneous reasoning to CAT that it applied to the unable-or-
unwilling standard, substantial evidence did not support the agency’s state action
finding). We remand for the agency to consider whether Reyes Villanueva
suffered past torture and whether it is more likely than not she would be tortured
upon removal to El Salvador. See id.
The motion for a stay of removal (Docket Entry No. 1) is granted. Reyes
Villanueva’s removal is stayed pending a decision by the Board of Immigration
Appeals.
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The government must bear the costs for this petition for review.
PETITION FOR REVIEW GRANTED and REMANDED.
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