Nelson Pleitez-Bermudez v. Merrick Garland

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 4 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NELSON ANTONIO PLEITEZ- No. 20-72815
BERMUDEZ,
Agency No. A209-792-380
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 18, 2022
San Francisco, California
Before: W. FLETCHER, GOULD, and COLLINS, Circuit Judges.
Nelson Antonio Pleitez-Bermudez, a native and citizen of El Salvador,
petitions for review of a Board of Immigration Appeals (“BIA”) order denying his
appeal from an Immigration Judge’s (“IJ”) decision rejecting his applications for
asylum, withholding of removal, protection under the Convention Against Torture
(“CAT”), and voluntary departure. We have jurisdiction under 8 U.S.C. § 1252. We
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
review the agency’s factual findings for substantial evidence. INS v. Elias-Zacarias,
502 U.S. 478, 481 & n.1 (1992); Silaya v. Mukasey, 524 F.3d 1066, 1070 (9th Cir.
2008). We deny the petition for review in part, grant in part, and remand to the BIA.
1. Substantial evidence supports the BIA’s determination that Pleitez-Bermudez
did not establish that the harm he suffered in El Salvador constitutes past persecution
for purposes of asylum and withholding of removal. See Duran-Rodriguez v. Barr,
918 F.3d 1025, 1028 (9th Cir. 2019) (explaining that the record in an analogous case
did not compel a conclusion that the petitioner suffered past persecution because the
death threats at issue were not “repeated, specific, and ‘combined with confrontation
or other mistreatment’” (quoting Lim v. INS, 224 F.3d 929, 936 (9th Cir. 2000)).
Pleitez-Bermudez’s efforts to distinguish Duran-Rodriguez are unsuccessful, and
the record does not support his claims that the BIA ignored arguments or otherwise
erred in analyzing the past persecution question. See Fernandez v. Gonzales, 439
F.3d 592, 603 (9th Cir. 2006) (noting that the BIA is presumed to have reviewed the
record). We deny the petition for review as to the issue of past persecution. See
Duran-Rodriguez, 918 F.3d at 1028.
2. In concluding that Pleitez-Bermudez did not establish a well-founded fear of
future persecution, the BIA dispositively relied on its view that Pleitez-Bermudez’s
BIA brief forfeited any challenge to the IJ’s finding that the Salvadoran government
had not been shown to be unwilling or unable to control a specific gang. Although
2
Pleitez-Bermudez’s BIA brief did not have a separate section devoted to that point,
it recited the applicable legal standard on the issue, pointed to evidence in the record
showing that the police could not control the gang, and argued that such evidence
established the “apparent inability of the police or a police officer to protect” Pleitez-
Bermudez in El Salvador. This issue was not forfeited, and the BIA erred in
bypassing Pleitez-Bermudez’s arguments regarding whether he has a well-founded
fear of future persecution. We grant the petition for review as to the issue of a well-
founded fear of future persecution and remand for the BIA to address the relevant
arguments in the first instance and consider whether the IJ properly denied asylum
and withholding of removal.
3. Pleitez-Bermudez did not challenge the agency’s denial of CAT relief in his
Opening Brief, so this issue is forfeited on appeal. See Etemadi v. Garland, 12 F.4th
1013, 1026 (9th Cir. 2021) (explaining that “forfeiture is the failure to make a timely
assertion of a right, whereas waiver is the intentional relinquishment or abandonment
of a right” (internal citation omitted)).
4. As to voluntary departure, the BIA did not have the benefit of Posos-Sanchez
v. Garland, 3 F.4th 1176, 1185 (9th Cir. 2021), which held that a deficient notice to
appear cannot trigger the stop-time rule. At oral argument, the government conceded
that we should remand for the BIA to reevaluate voluntary departure in light of this
intervening case. For these reasons, we grant the petition for review of Pleitez-
3
Bermudez’s request for voluntary departure and remand to the BIA for reassessment.
See INS v. Ventura, 537 U.S. 12, 16 (2002).
PETITION DENIED in part as to the issue of past persecution and the
CAT claim. PETITION GRANTED in part as to whether Pleitez-Bermudez
can gain asylum or withholding of removal because he has a well-founded fear
of future persecution and voluntary departure; these issues are REMANDED
to the BIA for reconsideration. The parties shall bear their own costs on appeal.
4