Rosales-Rivera v. Garland

Decision Date09 January 2023
Docket Number21-3784,22-3215
CourtU.S. Court of Appeals — Sixth Circuit


MERRICK B. GARLAND, Attorney General, Respondent.

Nos. 21-3784, 22-3215

United States Court of Appeals, Sixth Circuit

January 9, 2023



Before: SILER, COLE, and NALBANDIAN, Circuit Judges.



Christian Rosales-Rivera and Jessica Villalta-Perez ("Petitioners") are native Salvadorans who ran into serious problems with the gang, MS-13. And as a result, Petitioners left El Salvador. They entered the United States and applied for asylum, withholding of removal, and Convention Against Torture ("CAT") protection.

An immigration judge ("IJ") denied the applications because, among other things, Petitioners failed to prove that the Salvadoran government was unwilling or unable to protect them from MS-13. The Board of Immigration Appeals ("BIA") agreed. And later, the BIA denied the couple's motion to reconsider its determination. Petitioners now appeal the BIA's initial order affirming the IJ's denial of their applications and the BIA's denial of their motion for reconsideration. Because substantial evidence supports the IJ and BIA's determinations, we deny the petitions for review.



Petitioners Christian Rosales-Rivera and Jessica Villalta-Perez are married Salvadoran citizens. The IJ adopted Christian's credible testimony as the factual findings. So we recount the facts largely as they were testified.

In 2014, Christian and a family friend named Ivan visited Jessica at her home in El Salvador on Christmas Eve. Ten MS-13 gang members-armed with several weapons-asked Christian and Ivan for their IDs and where they lived. But conversation stopped when a car with broad headlights drove by. The gang members ran away, and Christian and Ivan entered Jessica's home.

Soon after, Jessica's family received a call from the MS-13 members. Because Ivan didn't have an ID when the members asked, they threatened to harm or kill Jessica's family if Ivan didn't meet them outside. At this point Christian and Jessica "were very scared."

So Christian called the police. He reported the threats and harassment without giving his name. And the El Salvador police responded to his call. A patrol car arrived at the scene, where the officers seized weapons and arrested two gang members.

MS-13 came back, this time asking Jessica's family why they called the police on its members. And the gang blamed the family for the weapon seizures and arrests. So MS-13 told the family to leave their lot by midnight or the entire family would be killed. Alternatively, the gang demanded $700 in extortion money to keep the family safe. The family paid the gang on Christmas Day and has continued to pay extortion money ever since.

The next month, a uniformed police officer with a name badge, Juan Morales, appeared at Jessica's house. Christian, not sure whether to trust the officer, told him that they reported the gang to the police. Trusting Morales proved to be the wrong decision. Morales then demanded $300 from Christian. Again in fear, the family paid Morales as requested.


A few days later, Morales returned without a uniform, demanding another $300. But Christian was only able to pay $150. And soon after, a neighbor told Christian that Morales came "back and shot up the area where Jessica's family lived." Morales threatened to tell the gang what he knew if he didn't get his money.[1] Yet despite these apparent threats, Christian never called the police to report Morales as a corrupt officer. Nor did Christian ever report Morales to any authority in El Salvador.

Instead, Christian fled to another part of El Salvador to live with his mom. But MS-13 followed. As Christian left work one day, two men he believed to be gang members followed him. Soon, Christian got a phone call saying that sooner or later, the gang would find him. MS-13 wanted revenge because of the two arrests that took place on Christmas Eve.

Christian again tried to elude MS-13. He got a new job and new phone number. But the gang members found him. And on another phone call, they said they wanted revenge. Despite the growing number of threats, however, Christian still didn't report them to the police.

Because of MS-13's threats, Christian and Jessica fled to the United States without valid entry documents.[2] And they timely submitted their asylum, withholding of removal, and CAT applications. They believe MS-13 still seeks revenge.

The IJ reviewing Petitioners' applications made many determinations after accepting Christian's testimony as true. Most important among them was that Petitioners failed to prove that El Salvador was unwilling or unable to protect them. The IJ explained that they don't fear


persecution from the Salvadoran government, nor all its police. Although Petitioners may fear extortion from Morales, more significantly, they fear persecution from MS-13-a nongovernmental actor.

The IJ next reasoned that El Salvador's police force was willing and able to control the MS-13 gang. After all, the police arrested two members based on Christian's only call for help. So, the IJ reasoned, the officers had done their job. And the IJ found that the country-conditions evidence submitted by Petitioners failed to "indicate that the entire governmental police force in El Salvador [was] aligned with the MS-13 gang." In the end, the IJ found that Petitioners didn't prove that the Salvadoran government was unwilling or unable to control MS-13.

After declining to grant asylum, the IJ found that Petitioners couldn't meet the higher burden of proof for withholding of removal. And although "very sympathetic" to the couple, the IJ also denied their CAT claim. The IJ didn't find any evidence that the government of El Salvador would acquiesce to torture by MS-13 or that they would face a particular risk of being tortured. The IJ stated that precedent controlled its decision: "[C]laims based upon revenge or personal disputes are not within the purview of the asylum laws of this country."

Petitioners appealed. And the BIA affirmed the IJ's determination that Petitioners are ineligible for asylum, withholding of removal, and CAT protection. Reviewing the IJ's findings in light of the testimony and country-conditions evidence, the BIA agreed that Petitioners didn't prove that the Salvadoran government was unwilling or unable to protect them from MS-13. The BIA noted that the government arrested gang members the only time that Petitioners called the police for help. And the BIA added that Petitioners didn't report any later incidents to the authorities.


Petitioners timely moved for reconsideration and a stay of removal. And the BIA denied the motions. At the outset, the BIA admitted to one minor error. In its initial decision, the BIA mentioned that it upheld the IJ's "adverse credibility finding" even though no such finding existed. The BIA "did not otherwise address credibility" and affirmed the IJ's denials on other "bases," such as the finding that Petitioners "did not establish that the Salvadoran government was unable or unwilling to protect them." So the BIA dismissed the error as harmless. And it rejected Petitioners' other arguments over factual and legal errors and the failure to consider countryconditions evidence. Petitioners now timely seek review of the BIA's order of removal and denial of reconsideration.


When the BIA reviews an IJ's decision "and issues a separate opinion, rather than summarily affirming the [IJ's] decision, we review the BIA's decision as the final agency determination." Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009) (citation omitted). That said, if the BIA adopted the IJ's reasoning, we also review the IJ's decision. Id. We review questions of law de novo. Id. And we review factual findings of the BIA and IJ under the "substantial evidence" standard. Hachem v. Holder, 656 F.3d 430, 434 (6th Cir. 2011). That standard restricts us from reversing findings "simply because we would have decided them differently." Khalili, 557 F.3d at 435 (citation omitted). Indeed, we must hold the findings "conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." Id. (citation omitted).


Petitioners seek reversal of their denied applications for asylum, withholding of removal, and CAT protection. The key conclusion by both the IJ and BIA is that Petitioners didn't prove


that the Salvadoran government was unwilling or unable to protect them from MS-13. Because substantial evidence supports that determination, we deny the petition for review.

A. Petitioners' Asylum Claim

The Attorney General has discretion under the Immigration and Nationality Act ("INA") to grant asylum to a "refugee." 8 U.S.C. § 1158(b)(1)(A). A refugee is defined as someone "who is unable or unwilling to return to [his] home country because of past persecution or a 'well-founded fear' of future persecution 'on account of race, religion, nationality, membership in a particular social group, or political opinion.'" Bonilla-Morales v. Holder, 607 F.3d 1132, 1136 (6th Cir. 2010) (quoting 8 U.S.C. § 1101(a)(42)). And the burden is on the applicant to establish that he or she qualifies as a refugee. Gilaj v. Gonzales, 408 F.3d 275, 283 (6th Cir. 2005) (citing 8 C.F.R. § 1208.13(a)-(b)).

When the persecutors are non-state actors, asylum claims require the applicant to show that the government is "unable or unwilling to control" the persecutors. K. H. v. Barr, 920 F.3d 470, 475 (6th Cir. 2019) (citation omitted). To evaluate this element, adjudicators "must examine the overall context of the applicant's situation . . . and review all relevant evidence in the record." Id. at 475-76 (cleaned up) (citations omitted). And although this Circuit doesn't have a "clear...

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