de Palucho v. Garland

• Citation: 49 F.4th 532
• Decision Date: 09 September 2022
• Docket Number: 21-3611
• Parties: Iris Lisseth Rodriguez de PALUCHO; C. B. P. R.; Jose Miguel Palucho Lara; M. A. P. R., Petitioners, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

49 F.4th 532

Iris Lisseth Rodriguez de PALUCHO; C. B. P. R.; Jose Miguel Palucho Lara; M. A. P. R., Petitioners,
v.
Merrick B. GARLAND, Attorney General, Respondent.

No. 21-3611

United States Court of Appeals, Sixth Circuit.

Decided and Filed: September 9, 2022

ON BRIEF: Kirby J. Fullerton, CARMANFULLERTON, PLLC, Lexington, Kentucky, for Petitioners. Matthew A. Spurlock, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before: SILER, CLAY, and MURPHY, Circuit Judges.

MURPHY, J., delivered the opinion of the court in which SILER, J., joined. CLAY, J. (pp. 542-49), delivered a separate dissenting opinion.

MURPHY, Circuit Judge.

49 F.4th 534

Nobody would dispute that El Salvador has a serious problem with violence from private gangs like MS-13. That gang's repeated crimes—including robbery, extortion, and death threats—drove Iris Lisseth Rodriguez de Palucho; her husband, Jose Miguel Palucho Lara; and their two children to seek asylum and withholding of removal in the United States. Yet those remedies have long been interpreted to contain a "state-action" element, meaning that immigrants must show that they fear violence in their countries from the government or from parties that the government is unable or unwilling to control. The Board of Immigration Appeals denied relief to Iris and Jose because they failed to show that the Salvadoran government was unable or unwilling to control MS-13. Iris and Jose now claim that the Board overlooked reports about the general conditions in El Salvador. They also argue that these reports would compel any reasonable factfinder to conclude that the Salvadoran government could not protect them from the gang. This case thus requires us to consider when the Board's failure to expressly discuss certain evidence compels a remand for it to reconsider factual findings. It also requires us to consider when a country's general conditions can permit a presumption that its government cannot protect its populace from private harm. Ultimately, because the Board recited the proper legal standards and because we must defer to its factual findings, we deny the petition for review.

I

Iris and Jose, natives of El Salvador, lived with their two small children in Usulután, a part of the country that they believed to be controlled by MS-13. They ran a small retail business (offering ice cream, cellphone minutes, and money transfers) and a mill (making flour for tortillas). Jose also sold medicine for a separate company.

Iris and Jose's business unfortunately brought them to the attention of MS-13. In May 2016, a gang member called Jose's cellphone, demanded $800, conveyed details about Jose's family, and threatened to kill the family if Jose did not pay. After Jose sent the gang $200 through a bank transfer, this gang member claimed that MS-13 would leave the family alone. The reprieve did not last long. Other gang members robbed Jose and a colleague at gunpoint when the two coworkers were delivering medicine in a town about thirty minutes from where they lived. On a later trip to the same town, armed gang members again threatened to kill Jose and his colleague. Only the intervention of the colleague's relative, a fellow gang member, secured their release. At this point, Jose decided that he could not safely travel.

Jose did not report the gang's crimes to the police. He knew that the police conducted daily raids in his neighborhood to combat gang activity. But he also believed that the gangs had infiltrated the government. He feared that MS-13 would learn of his complaints and kill him if he asked for help. (Incidentally, the gang member who extorted Jose of $200 had initially told him to deliver the money to a park in front of the Usulután mayor's office before requesting the bank transfer. The mayor

49 F.4th 535

was subsequently arrested for helping gang members collect "rent.")

Yet Jose did feel safe to contact the police about other matters. When an uncle demanded that Jose move out of the house in which he was living after his grandfather's death, he obtained a restraining order against the uncle. Officers routinely checked on the family to ensure that Jose's uncle complied with the order. These visits led members of MS-13 to interrogate Jose about whether he had been informing on the gang. They reiterated that they would kill him if he cooperated with the police.

Faced with ongoing gang harassment, Jose left El Salvador in October 2016. He and one of the couple's children reached the United States the next month. By August 2017, gang members began to demand monthly "rent" from Iris and threatened to kill her and her son if she did not comply. She paid twice, but the gang continued to demand more. Terrified, Iris sold her business and moved in with her mother. She also did not report the crimes to the police. Eventually, she fled for the United States. Iris arrived here with the couple's other child in October 2017.

The government initiated removal proceedings against the family. They responded by applying for asylum and withholding of removal. (The family also sought relief under the Convention Against Torture but have abandoned that claim.) Iris and Jose testified at a hearing. They also introduced, among other evidence, two country-condition reports about gang activity in El Salvador. Admin. R. (A.R.) 331–412. The reports corroborated their testimony. A 2016 report from the United Nations High Commissioner for Refugees suggested that victims of gang extortion like Iris and Jose generally do not complain to the police for fear that the gangs will retaliate against them. A.R. 390. Similarly, a 2017 State Department report noted that the government in many areas could not guarantee the public's freedom of movement "due to criminal gang activity." A.R. 348. In other respects, though, the government had made progress in combatting gangs. The State Department's report suggested that the government had started a new internal-investigations unit that had removed many gang-affiliated officials (like the Usulután mayor). A.R. 340. The report also cited a poll showing that 63% of the public found that the police were more effective as compared to the prior year. Id.

After the hearing, an immigration judge denied relief and ordered the family's removal to El Salvador. While finding Iris and Jose credible, the judge concluded that their evidence fell short of meeting several required elements for the family to obtain asylum or withholding of removal. As relevant here, these laws required the family to show that the harm that they suffered in El Salvador had been inflicted by private actors that the government was unable or unwilling to control. According to the judge, the family failed to prove that the Salvadoran government was unable or unwilling to control MS-13. The Board of Immigration Appeals upheld the judge's decision solely on this ground. The family has timely filed a petition for review in our court.

II

The asylum statute permits the Attorney General to grant relief from removal to immigrants who qualify as "refugee[s]." 8 U.S.C. § 1158(b)(1)(A). The immigration laws define "refugee" to cover those who, among other things, have a "well-founded fear of persecution" in their home countries. Id. § 1101(a)(42)(A). The laws do not define "persecution." But the Board and courts have long interpreted this word to require that the feared harm be inflicted either "by the government or by private

49 F.4th 536

parties that the government is ‘unable or unwilling to control.’ " Ortiz v. Garland , 6 F.4th 685, 688 (6th Cir. 2021) (quoting Matter of Acosta , 19 I. & N. Dec. 211, 222 (B.I.A. 1985) ).

The withholding-of-removal statute, by comparison, compels the Attorney General to grant relief from removal to immigrants whose "life or freedom would be threatened" in their countries. 8 U.S.C. § 1231(b)(3)(A). Since 1980, this statute has not contained the word ("persecution") that the courts have used to incorporate the state-action element into the asylum statute. See INS v. Stevic , 467 U.S. 407, 410–11, 421 n.15, 428 n.22, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984). Yet the Board has relied on legislative history to interpret the phrase "life or freedom would be threatened" to mean "persecution" and retain this state-action element. See Matter of McMullen , 17 I. & N. Dec. 542, 544–45 (B.I.A. 1980). Since then, circuit courts have unanimously followed suit (albeit without much reasoning). See Gramajo-Lopez v. Holder , 572 F. App'x 346, 347 (6th Cir. 2014) (per curiam); Khalili v. Holder , 557 F.3d 429, 435–36 (6th Cir. 2009) ; see also Sanchez-Vasquez v. Garland , 994 F.3d 40, 46 (1st Cir. 2021) ; Galeas Figueroa v. Att'y Gen. , 998 F.3d 77, 86–87 (3d Cir. 2021) ; Perez v. Holder , 516 F. App'x 327, 328 (5th Cir. 2013) (per curiam); Cruz-Martinez v. Sessions , 885 F.3d 460, 463 (7th Cir. 2018) ; Prieto-Pineda v. Barr , 960 F.3d 516, 520 (8th Cir. 2020) ; Amparo-Gomez v. Garland , 849 F. App'x 219, 219 (9th Cir. 2021) (per curiam).

Iris and Jose thus concede that they must prove that the Salvadoran government was "unable or unwilling" to control the gang members who extorted them. What does it mean for a government to be "unable or unwilling" to control a private actor? Some of our cases have noted that immigrants must show that they cannot "reasonably expect the assistance of the government" in deterring the criminal actor. Juan Antonio v. Barr , 959 F.3d 778, 793 (6th Cir. 2020) (citation omitted). Others have noted that the government must have either "condoned" the private violence "or at least demonstrated a complete helplessness to protect the victims." Kere v. Gonzales , 252 F. App'x 708, 712 (6th Cir. 2007) (citation omitted); see Ortiz , 6 F.4th at 691. (Some courts have suggested that these standards are functionally identical. See Galeas Figueroa , 998 F.3d at 87–90 (citing cases).)

Apart from the controlling legal standard, our cases have also provided instructions on how the Board and...