Emilia Velasquez-Gaspar v. William Barr ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EMILIA VELASQUEZ-GASPAR, No. 17-71964
Petitioner,
Agency No.
v. A200-903-039
WILLIAM P. BARR, Attorney General,
Respondent. OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 1, 2020
Pasadena, California
Filed September 30, 2020
Before: Richard A. Paez, Consuelo M. Callahan, and
Lawrence VanDyke, Circuit Judges.
Opinion by Judge Callahan;
Concurrence by Judge VanDyke;
Dissent by Judge Paez
2 VELASQUEZ-GASPAR V. BARR
SUMMARY *
Immigration
Denying Emilia Velasquez-Gaspar’s petition for review
of the Board of Immigration Appeals’ denial of asylum and
related relief, the panel held that substantial evidence
supported the agency’s determination that Velasquez-
Gaspar failed to establish that the Guatemalan government
was unwilling or unable to protect her from abuse by her ex-
boyfriend, and that she waived review of her claim under the
Convention Against Torture.
The panel concluded that substantial evidence supported
the agency’s determination that, had Velasquez-Gaspar
reported her abuse, the Guatemalan government could have
protected her from her abusive ex-boyfriend. The panel
noted that the State Department reports show that Guatemala
is working to curb violence against women, that the law
criminalizes rape and domestic abuse, and that officials
investigate and prosecute cases under those laws. The panel
acknowledged that conviction rates are exceptionally low,
and officers often face a lack of resources and training, but
noted that it must analyze not only whether the government
can control the attackers, but also whether it can protect the
attacked. The panel explained that, on this point, the reports
convey that justices of the peace issued restraining orders
and ordered police protection for abuse victims in an
unspecified number of cases, and that Guatemala has
established programs, offices, and shelters for female
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
VELASQUEZ-GASPAR V. BARR 3
victims of physical and sexual assault. The panel observed
that one such shelter operates in Quetzaltenango, where
Velasquez-Gaspar lived. The panel explained that although
the State Department reports make clear that Guatemala still
has a long way to go in addressing domestic violence, the
country’s efforts, coupled with the pleas of Velasquez-
Gaspar’s acquaintances that she seek help from police,
suggest that she could have obtained help. As a result, the
panel concluded that, as this court held in an analogous
petition in Castro-Perez v. Gonzales, 409 F.3d 1069 (9th Cir.
2005), it could not say that the record compelled a finding
that the Guatemalan authorities would have been unable or
unwilling to help Velasquez-Gaspar.
The panel also concluded that Velasquez-Gaspar waived
any argument as to her CAT claim by failing to specifically
and distinctly discuss the matter in her opening brief, but
noted that any argument would have failed in any event, as
Velasquez-Gaspar failed to show a likelihood of torture by
or with the acquiescence of public officials.
Concurring, Judge VanDyke agreed with Judge
Callahan’s opinion in full, but wrote separately to address
the dissent’s reliance on Castro-Perez and its treatment of
Velasquez-Gaspar’s testimony as credible. Judge VanDyke
noted that the dissent relies extensively on Velasquez-
Gaspar’s own testimony as supplying “concrete evidence”
that Castro-Perez did not, but Judge VanDyke observed that
the Immigration Judge in this case expressly found that
Velasquez-Gaspar was “not a credible witness,” and that the
Board never rejected that factual finding nor concluded it
was clearly erroneous. Judge VanDyke wrote that when the
Board affirms an IJ’s denial of relief, but does not explicitly
address the IJ’s adverse credibility finding, the Board is not
tacitly reversing that finding; on the contrary, it remains a
4 VELASQUEZ-GASPAR V. BARR
“conclusive” finding in the administrative record that this
court must consider a fixed feature of the record. Judge
VanDyke wrote that the dissent’s willingness to assume or
presume Velasquez-Gaspar’s credibility ignores the law by
permitting the court to rewrite conclusive findings of the
administrative record through the power of presumption
rather than substantial evidence review.
Dissenting, Judge Paez wrote that country condition
evidence and Velasquez-Gaspar’s personal experiences
compel the conclusion that the Guatemalan government was
unable or unwilling to protect her from further abuse. Judge
Paez wrote that the majority’s reliance on Castro-Perez was
misplaced because there the court specifically noted that the
country report was “not particularly enlightening,” as it did
not include any information on the efficacy of Honduran law
enforcement. Judge Paez wrote that Velasquez-Gaspar
presented the concrete evidence that Castro-Perez did not,
including unrebutted evidence that the Guatemalan
government systematically fails to hold perpetrators of
gender-based violence accountable for their crimes. Judge
Paez also wrote that this court reviews the Board’s decision
based on its assumption that Velasquez-Gaspar was a
credible witness. Noting that the concurrence makes much
of the fact that the IJ found Velasquez-Gaspar not credible,
Judge Paez wrote that Velasquez-Gaspar’s credibility is not
properly before this court because, although Velasquez-
Gaspar challenged the IJ’s adverse credibility finding on
appeal, the Board did not address her argument, and instead
explicitly assumed that Velasquez-Gaspar testified credibly.
Judge Paez would grant the petition for review and remand
for further proceedings.
VELASQUEZ-GASPAR V. BARR 5
COUNSEL
Garish Sarin (argued), Law Offices of Garish Sarin, Los
Angeles, California, for Petitioner.
Rosanne Perry (argued) and Nelle M. Seymour, Trial
Attorneys; Claire L. Workman, Senior Litigation Counsel;
Joseph H. Hunt, Assistant Attorney General; Office of
Immigration Litigation, Civil Division, United States
Department of Justice, Washington, D.C., Washington,
D.C.; for Respondent.
OPINION
CALLAHAN, Circuit Judge:
Emilia Velasquez-Gaspar, a Guatemalan native and
citizen, petitions for review of the Board of Immigration
Appeals’ (BIA) dismissal of her appeal of an immigration
judge’s (IJ) denial of her applications for asylum,
withholding of removal, and protection under the
Convention Against Torture (CAT). We have jurisdiction
under 8 U.S.C. § 1252 and deny the petition.
I.
Velasquez-Gaspar unlawfully entered the United States
near Naco, Arizona, in 2010. Later that year the U.S.
Department of Homeland Security initiated removal
proceedings against her, charging that she was present in the
United States without being admitted or paroled. See
8 U.S.C. § 212(a)(6)(A)(i)(I). Velasquez-Gaspar conceded
her removability but applied for asylum, withholding of
removal, and CAT relief. As the basis for her applications,
she claimed that, if deported, she would face persecution and
6 VELASQUEZ-GASPAR V. BARR
torture at the hands of her abusive ex-boyfriend, Brian
Alexander Gonzales.
Velasquez-Gaspar testified at her removal hearing that
Gonzales had repeatedly beaten her and that, one night, he
and his friends had raped her. She recounted that when she
threatened to report Gonzales to the police, he stated that he
would kill her if she did so. She added that the police would
not have believed her in any event, considering that she was
an indigenous woman, and that the police were susceptible
to bribes. The Guatemalan government discriminated
against indigenous people, she explained, and lacked laws
addressing domestic violence.
Velasquez-Gaspar supplemented her testimony with
several articles and U.S. Department of State human rights
reports for Guatemala, which detailed the country’s handling
of domestic abuse, rape, and femicide. She also offered
written statements from a former employer and neighbor,
who were aware of her situation and had urged her to seek
help from the police. Fearing retaliation from Gonzales,
Velasquez-Gaspar declined this advice.
The IJ denied Velasquez-Gaspar relief on several
alternative grounds. She first found Velasquez-Gaspar
incredible based on inconsistencies in her testimony. She
next determined that Velasquez-Gaspar’s proposed social
group of “women unable to leave their relationships” was
not cognizable. And finally, she found that Velasquez-
Gaspar had not established the Guatemalan government’s
inability or unwillingness to protect her from Gonzales.
Velasquez-Gaspar appealed to the BIA, and a divided panel
dismissed her appeal. The panel assumed arguendo that she
was credible and did not address her proposed social group.
It agreed, however, with the IJ that Velasquez-Gaspar failed
to establish that governmental authorities would not or could
VELASQUEZ-GASPAR V. BARR 7
not have protected her. Velasquez-Gaspar timely petitioned
for our review of that narrow question.
II.
“We review only the BIA’s opinion, except to the extent
that it expressly adopted portions of the IJ’s decision.”
Rayamajhi v. Whitaker, 912 F.3d 1241, 1243 (9th Cir. 2019)
(citation omitted). We review the agency’s factual findings
under the “extremely deferential” substantial-evidence
standard, under which we treat such findings as “conclusive
unless any reasonable adjudicator would be compelled to
conclude to the contrary.” Farah v. Ashcroft, 348 F.3d 1153,
1156 (9th Cir. 2003) (quoting 8 U.S.C. § 1252(b)(4)(B)).
III.
An alien seeking asylum must demonstrate that she is
“unable or unwilling” to return to her home country
“because of a well-founded fear of persecution on account
of race, religion, nationality, membership in a particular
social group, or political opinion.” Bringas-Rodriguez,
850 F.3d 1051, 1062 (9th Cir. 2017) (quoting Navas v. INS,
217 F.3d 646, 654 (9th Cir. 2000)). Proving past persecution
can satisfy this burden, as it gives rise to a rebuttable
presumption of future persecution. Id. But to qualify an
alien for asylum, the persecution must have been
“committed by the government” or, as relevant here, “by
forces that the government was unable or unwilling to
control.” Id.; see also Rahimzadeh v. Holder, 613 F.3d 916,
920 (9th Cir. 2010).
We conclude that substantial evidence supports the
agency’s determination that, had Velasquez-Gaspar reported
8 VELASQUEZ-GASPAR V. BARR
her abuse, 1 the Guatemalan government could have
protected her from Gonzales. The State Department reports
show that Guatemala is working to curb violence against
women. For example, Guatemalan law criminalizes rape
and domestic abuse, and officials investigate and prosecute
cases under those laws. Granted, the conviction rates are
exceptionally low, and officers often face a lack of resources
and training, but we do not limit our analysis to whether the
government can “control the attackers”; we also look to
whether it can “protect the attacked.” Bringas-Rodriguez,
850 F.3d at 1066. On this point the reports convey that
justices of the peace issued restraining orders and ordered
police protection for abuse victims in an unspecified number
of cases. In addition, Guatemala has established programs,
offices, and shelters for female victims of physical and
sexual assault. One such shelter operates in Quetzaltenango,
where Velasquez-Gaspar lived. Thus, although the State
Department reports make clear that Guatemala still has a
long way to go in addressing domestic violence, the
country’s efforts, coupled with the pleas of Velasquez-
Gaspar’s acquaintances, suggest that she could have
obtained help. 2 As a result, we cannot say that the record
compels a finding contrary to the agency’s.
1
Because she did not report Gonzales’s abuse, Velasquez-Gaspar
needed to show that doing so would have been futile or dangerous.
Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1058 (9th Cir. 2006). And
“[w]hile private threats may explain an applicant’s reluctance to go to
the authorities, the question in an asylum case is whether the police could
and would provide protection.” Rahimzadeh, 613 F.3d at 923.
2
We note that, during her testimony, Velasquez-Gaspar could not
recall any particular instance of the police ignoring women or taking
bribes.
VELASQUEZ-GASPAR V. BARR 9
Indeed, we denied an analogous petition in Castro-Perez
v. Gonzales, 409 F.3d 1069 (9th Cir. 2005). There, the
petitioner credibly testified that she did not report being
raped because the police would not have protected her and
because she feared violent reprisal from her father. Id. at
1072. Looking to the State Department report for Honduras,
we acknowledged the country’s widespread domestic
violence “despite attempts to strengthen domestic abuse
law.” Id. We nonetheless held that a reasonable trier of fact
would not be “compelled to find that the Honduran
government must bear some responsibility” for the abuse.
Id. In the end, the country-report evidence “did not
conclusively show that the Honduran government would
have ignored the report of rape.” Bringas-Rodriguez,
850 F.3d at 1066 n.9 (discussing Castro-Perez).
As in Castro-Perez, the evidence here falls short of
compelling the conclusion that Guatemalan authorities
would have been unable or unwilling to help Velasquez-
Gaspar. 3 See Lianhua Jiang v. Holder, 754 F.3d 733, 738
(9th Cir. 2014) (“[T]he petitioner must establish that the
evidence not only supports that conclusion, but compels it.”
(quotation marks and citation omitted)). Accordingly, she
has failed to demonstrate her eligibility for asylum. And
because withholding of removal also turns on this factor,
substantial evidence likewise supports the agency’s denial of
that claim. Castro-Perez, 409 F.3d at 1072. Finally,
Velasquez-Gaspar waived any argument as to her CAT
claim by failing to “specifically and distinctly” discuss the
matter in her opening brief. See id. (quoting Arpin v. Santa
Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir.
3
Considering that substantial evidence supports the agency’s
findings even crediting Velasquez-Gaspar’s testimony, we need not
consider the IJ’s adverse credibility finding.
10 VELASQUEZ-GASPAR V. BARR
2001)); Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079–80
(9th Cir. 2013). Such an argument would have failed in any
event, as she has not shown a likelihood of torture by or with
the acquiescence of public officials. See Bromfield v.
Mukasey, 543 F.3d 1071, 1079 (9th Cir. 2008). We therefore
deny her petition.
PETITION DENIED.
VANDYKE, Circuit Judge, concurring:
I join Judge Callahan’s opinion in full. Given the
considerable deference this court owes to the BIA’s
weighing of the evidence, the evidence here certainly does
not “compel[]” reversal. I.N.S. v. Elias-Zacarias, 502 U.S.
478, 481 n.1 (1992) (“To reverse the BIA finding we must
find that the evidence not only supports that conclusion, but
compels it . . . .”); 8 U.S.C. § 1252(b)(4). Looking to the
2014 Country Report, the BIA identified Guatemalan
progress in protecting domestic violence victims. 1 The BIA
also weighed the uncontested relevant, but non-dispositive,
fact that Petitioner never sought police assistance. Citing to
and affirming the Immigration Judge’s findings on both
counts, the BIA reasonably concluded that Petitioner failed
to carry her burden of proof.
Notwithstanding slower-than-preferred progress in the
2014 Country Report, the BIA’s conclusion is clearly
supported by “reasonable, substantial, and probative
1
Importantly, neither the IJ nor the BIA ignored Guatemala’s
lingering problems in preventing and punishing domestic violence, but
rather weighed those difficulties against the Report’s indications of
improvement.
VELASQUEZ-GASPAR V. BARR 11
evidence on the record considered as a whole.” Elias-
Zacarias, 502 U.S. at 481. The BIA and IJ properly weighed
the mixed evidence within the Country Reports, and the
court should not second-guess that appraisal unless the
evidence compels it. Aden v. Holder, 589 F.3d 1040, 1046
(9th Cir. 2009) (“Our standard of review, though, does not
enable us to substitute our judgment . . . for the BIA’s” when
it comes to reasonably weighing the persuasiveness of
administrative record evidence.). “We have repeatedly
recognized that the IJ and the BIA are entitled to rely on
country reports that contain mixed messages, ambiguities, or
inconsistencies.” Singh v. Holder, 753 F.3d 826, 831 (9th
Cir. 2014) (“[S]low and uneven progress in prosecuting
those responsible for past persecution is troubling. But it
does not mean that the Board’s decision is not supported by
substantial evidence.”). It is of course true, as the dissent
notes, that “deference does not mean blindness.” Li v.
Ashcroft, 356 F.3d 1153, 1158 (9th Cir. 2004) (en banc). But
deference does mean deference, and Li’s truism cannot
empower this court to substitute its judgment for that of the
BIA’s. Deference only counts when judges uphold a
decision they disagree with. And agree with it or not,
Castro-Perez v. Gonzales, 409 F.3d 1069 (9th Cir. 2005), is
directly applicable and controls this case.
I write separately to respond to the dissent. It argues that
Castro-Perez “provides little guidance” in deciding this
case, but ultimately offers only one basis to distinguish it. 2
2
The dissent suggests that both Velasquez-Gaspar’s testimony and
the 2014 Country Report distinguish this case from Castro-Perez. But
there is no meaningful difference between the Country Report in Castro-
Perez and the one the BIA considered here. Castro-Perez v. Gonzales,
409 F.3d at 1072 (“[D]omestic violence is widespread despite attempts
to strengthen domestic abuse law.”) (discussing U.S Dep’t of State’s
Country Reports on Human Rights Practices for 2000, Honduras (“2000
12 VELASQUEZ-GASPAR V. BARR
The dissent relies extensively on Velasquez-Gaspar’s own
testimony as supplying “concrete evidence that Castro-Perez
did not.” Only by pointing to Velasquez-Gaspar’s testimony
can the dissent attempt to distinguish Castro-Perez to
conclude that “the Guatemalan government was unable to
protect Velasquez-Gaspar . . . .”
But the Immigration Judge in this case expressly found
that Velasquez-Gaspar was “not a credible witness.” The
BIA never rejected that factual finding nor concluded it was
clearly erroneous. Therefore, the IJ’s adverse credibility
finding is part of the “record evidence” that the dissent
insists “compels” a different conclusion than that reached in
Castro-Perez. The dissent never explains how non-credible
testimony can do that. Nor does it attempt to show that the
IJ’s credibility determination was clearly erroneous. Rather,
it simply treats Velasquez-Gaspar’s testimony as wholly
credible, literally ignoring the fact-finder’s contrary
conclusion.
I think that is wrong—obviously as a matter of statutory
law and the Supreme Court’s caselaw; perhaps less
obviously as a matter of our circuit’s confused statements.
So I write to clarify what the law requires of this court when
Honduras Report”)). Both Reports reveal government efforts and de jure
reforms intended to protect women from violence. And both reveal that
public funding, training, and other factors have metered progress toward
that goal and failed to remediate the problem as quickly as desired. See
2000 Honduras Report (“In March the Public Ministry reported that it
receives an average of 200 allegations of domestic violence each month,
but that many cases remain pending because the Government has not yet
created the special courts authorized by the Law Against Domestic
Violence.”). The two Reports paint very similar pictures, so ultimately
the dissent is left with just Velasquez-Gaspar’s testimony.
VELASQUEZ-GASPAR V. BARR 13
reviewing an administrative record containing an IJ’s
unrebutted adverse credibility finding.
The REAL ID Act significantly altered testimonial
credibility standards in immigration cases. See generally
Shrestha v. Holder, 590 F.3d 1034, 1039–45 (9th Cir. 2010).
One example is the language in 8 U.S.C.
§ 1158(b)(1)(B)(iii): “There is no presumption of credibility,
however, if no adverse credibility determination is explicitly
made, the applicant or witness shall have a rebuttable
presumption of credibility on appeal.” As Dai v. Sessions
points out, the BIA—and not the Court of Appeals—hears
an alien’s appeal from an adverse ruling by an Immigration
Judge. 884 F.3d 858, 868–69 (2018). So if the IJ makes no
adverse credibility determination, the BIA presumes the
testimony is credible; or the BIA can make its own adverse
credibility determination if it concludes the “totality of the
circumstances” rebut the presumption. 8 U.S.C.
§ 1158(b)(1)(B)(iii). That’s simple enough.
The question is, what do we do when the IJ makes an
explicit adverse credibility determination, but the BIA
affirms the IJ’s conclusion without directly addressing the
IJ’s adverse credibility determination? In other words, what
do we do in a case like this?
I think the rule is straightforward and apparent in our
“substantial evidence” standard of review. Our review of the
agency’s findings is “extremely deferential.” Farah v.
Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003) (citing
8 U.S.C. § 1252(b)(4)(B)). Indeed, “[t]he BIA’s
determination [that an alien is ineligible for asylum] must be
upheld if supported by reasonable, substantial, and probative
evidence on the record considered as a whole.” Elias-
Zacarias, 502 U.S. at 481 (internal quotation marks omitted
& emphasis added). Because we are reviewing an
14 VELASQUEZ-GASPAR V. BARR
administrative decision—and not a district court decision—
“we must decide whether to grant or deny the petition for
review based on the Board’s or IJ’s reasoning rather than our
own independent analysis of the record.” Ali v. Holder,
637 F.3d 1025, 1029 (9th Cir. 2011) (alteration marks and
internal quotation marks omitted) (quoting Azanor v.
Ashcroft, 364 F.3d 1013, 1021 (9th Cir. 2004)).
“That does not mean, however, that our review may
consider only evidence expressly identified in the BIA’s
decision.” Ramirez-Villalpando v. Holder, 645 F.3d 1035,
1039 (9th Cir. 2011). Rather, while our review is limited
“only [to] the administrative record,” 8 U.S.C.
§ 1252(b)(4)(A), and “we consider only the grounds relied
upon by” the BIA, Andia v. Ashcroft, 359 F.3d 1181, 1184
(9th Cir. 2004) (per curiam), we must determine whether the
record evidence “considered as a whole”—as the BIA
encountered it—“compels” us to reverse the BIA’s decision.
Elias-Zacarias, 502 U.S. at 481 & n.1; Melkonian v.
Ashcroft, 320 F.3d 1061, 1065 (9th Cir. 2003). Properly
understood, our role is to review the basis for the BIA’s
decision by meeting all the relevant evidence as the BIA
found it and then decide whether a “reasonable BIA” would
be “compelled” to reach a different conclusion.
Under our case law then, “grounds” and “evidence” are
two different things. 3 Accordingly, we may affirm the BIA
3
The dissent simply ignores this legal and logical distinction,
arguing that, like the BIA, we “must assume that Velasquez-Gaspar
testified credibly” because we “‘cannot affirm the BIA on a ground on
which [the BIA] did not rely.’” (Emphasis added and citation omitted.)
But the latter has nothing to do with the former. Concluding that
Velasquez-Gaspar’s noncredible testimony does not undermine the
BIA’s stated ground of its decision is hardly upholding the BIA’s
decision on a different ground. It is classic substantial evidence review,
VELASQUEZ-GASPAR V. BARR 15
on its decisional grounds by looking to the entirety of the
evidence—including record evidence it may not have
expressly relied on. Ramirez-Villalpando, 645 F.3d at 1039.
This principle has a logical inverse corollary: we may not
reverse the BIA by ignoring or recasting the evidence that
was before it.
When the BIA affirms an IJ’s denial of relief but does
not explicitly address the IJ’s adverse credibility finding, the
BIA is not tacitly reversing that finding; on the contrary, it
remains a “conclusive” finding in the administrative record.
8 U.S.C. § 1252(b)(4)(B); 8 C.F.R. § 1003.1(d)(3)(i). That
same BIA could affirm the IJ’s conclusion that an alien
failed to meet her evidentiary burdens while “[a]ssuming
arguendo that the [alien] testified credibly.” But it defies
logic (and the governing statute and regulation) to assume
that this banal method of appellate decision-making is
tantamount to the BIA’s repudiation of the IJ’s explicit
adverse credibility finding or constitutes a positive
credibility finding. In other words, the evidentiary record
remains just where the IJ left it, regardless of whether the
BIA relies upon each and every IJ fact finding to reach its
conclusion. 4
Momentarily setting aside the credibility issue that has
bedeviled our immigration jurisprudence, an illustration
proves the point. Assume, for example, that an IJ properly
where our court reviews the entire evidentiary record—including the IJ’s
adverse credibility finding—and determines whether that entire
evidentiary record compels the conclusion that the BIA’s ground of
decision was wrong.
4
The BIA may only repudiate the IJ’s findings if clearly erroneous.
8 C.F.R. § 1003.1(d)(3)(i). It follows that we may not interpret the BIA’s
silence as a reversal of the IJ’s findings.
16 VELASQUEZ-GASPAR V. BARR
makes five findings and relies upon them all in denying an
asylum request on a single ground. On appeal, assume the
BIA affirms on the same ground as the IJ, but only relies
upon two of the five findings without discussing the other
three. While this court must limit its review to the ground
of the BIA’s decision, it is not required to consider only the
two evidentiary findings that the BIA considered. Nor can
this court on review simply assume the BIA reversed those
three unaddressed findings. Certainly, this court on review
cannot construe the facts to be diametrically opposite of the
IJ’s undisturbed findings. To the contrary, this court is
statutorily obligated to consider all five conclusive findings,
together with the rest of the “administrative record,” to
determine whether “the evidence . . . considered as a whole
. . . . compels” the conclusion that the BIA’s ground of
decision was wrong. Elias-Zacarias, 502 U.S. at 481 & n.1
(emphasis in original); 8 U.S.C. § 1252(b)(4)(A)–(B).
Practically then, if the court concludes that the two findings
relied upon are themselves insufficient to support the BIA’s
conclusion, this court must still uphold the BIA’s decision if
the other three findings support the BIA’s decision by
“substantial evidence.”
This straightforward method of review does not
somehow mystically change just because part of the
evidence before the BIA is the IJ’s adverse credibility
finding. The dissent argues—with nary a single citation in
support—that “the IJ’s credibility determination is not itself
record evidence.” It is a factual finding that is part of the
evidentiary record before the BIA and us. 5 “The same
5
The dissent’s attempt to paint an IJ’s credibility determination as
something that we can just ignore in our substantial evidence review (but
only, of course, if the IJ made an adverse credibility finding) is
particularly odd since the dissent acknowledges, literally one sentence
VELASQUEZ-GASPAR V. BARR 17
standard applies to the IJ’s credibility findings” as to the IJ’s
other factual findings. Farah, 348 F.3d at 1156; 8 C.F.R.
§ 1003.1(d)(3)(i) (“Facts determined by the immigration
judge, including findings as to the credibility of testimony,
shall be reviewed only to determine whether . . . clearly
erroneous.”) (emphasis added).
Accordingly, where the BIA has not expressly reversed
the IJ’s explicit adverse credibility finding, we, who
encounter the evidence just as the BIA did, must consider
that finding as a fixed feature of the record. 8 U.S.C.
§ 1252(b)(1)(4)(A). 6 In determining whether “the evidence
on the record considered as a whole . . . . compels” a
different conclusion than that reached by the BIA, we cannot
ignore the part of that evidence that included the fact-
finder’s adverse credibility finding. Elias-Zacarias,
502 U.S. at 481 & n.1 (emphasis in original). To conclude
otherwise is to ignore the Supreme Court’s and Congress’s
clear admonition to accept the BIA’s conclusion unless all
of the evidence before the BIA—including credibility
findings—“compels” a different conclusion than the BIA.
Id.; 8 U.S.C. § 1252(b)(4). Ignoring the fact-finder’s
adverse credibility finding attributes an energetic potency to
the BIA’s silence that finds no basis in the statutory text,
forces this court to blink reality by counter-factually
rearranging the deck chairs of the evidentiary record, and
later, that the BIA must review the IJ’s credibility findings for clear
error—just as the BIA does with all factual findings by the IJ.
6
Of course, just like any other factual finding, we are not barred
from reversing an adverse credibility finding if it is unsupported by
substantial evidence. See Shrestha, 590 F.3d at 1042; see also Zhiqiang
Hu v. Holder, 652 F.3d 1011, 1016 n.4 (9th Cir. 2011). But we must
actually determine that it isn’t supported by substantial evidence. We
don’t get to just pretend the adverse credibility finding doesn’t exist.
18 VELASQUEZ-GASPAR V. BARR
jettisons the deference we owe the fact-finder under the
REAL ID Act. 8 U.S.C. § 1252(b)(1)(4)(B) (“the
administrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to
the contrary”).
This method of review is not inconsistent with the
“distinct rule” this court relied on in Dai “that in the absence
of an adverse credibility finding by either the IJ or the BIA,
we are required to treat the petitioner’s testimony as
credible.” 884 F.3d at 869 n.8. There, this court credited the
alien’s testimony “[b]ecause neither the IJ nor the BIA made
an adverse credibility determination . . . .” Id. at 870
(emphasis added); 7 see also Ornelas-Chavez v. Gonzales,
458 F.3d 1052, 1054 n.2 (9th Cir. 2006) (same); Zheng v.
Ashcroft, 332 F.3d 1186, 1189 n.4 (9th Cir. 2003) (same).
Of course, that is a very different situation than the one
presented in this case, where the IJ did clearly make an
adverse credibility finding supported by a lengthy analysis,
and the BIA never rejected that finding as “clearly
erroneous.” In a case like Dai, there is no adverse credibility
finding in the record that this court must consider when
deciding whether the whole record “compels” reversal of the
BIA. Elias-Zacarias, 502 U.S. at 481 & n.1. 8
7
Dai’s unsupported stray remark that “when the BIA has on appeal
[not] affirmed an adverse credibility finding made by the IJ . . . we may
not deny the petition for review based on lack of credibility,” 884 F.3d
at 869, is dictum divorced from that case’s facts and disposition. In Dai,
“the IJ did not make an adverse credibility finding.” Id. at 865.
8
Indeed, this court in Dai acknowledged that “the IJ’s decision not
to make an explicit adverse credibility finding means that there is no
finding to which we can defer.” 884 F.3d at 868 (citations, alteration
marks, and internal quotation marks omitted).
VELASQUEZ-GASPAR V. BARR 19
But in a case like this, there is. This court is ill-suited to
make credibility findings in the first instance—adverse or
otherwise. Shrestha, 590 F.3d at 1041 (the deference
required by the REAL ID Act “makes sense because IJs are
in the best position to assess demeanor and other credibility
cues that we cannot access on review”). And where such
findings are part of the record, we cannot presume to ignore
or reverse them while pretending to properly review the
“record . . . as a whole.” Elias-Zacarias, 502 U.S. at 481.
Beyond cases like Dai where the fact-finder made no
adverse credibility finding, I am aware of two post-REAL
ID Act cases from this court that ostensibly suggest we take
a remarkable evidentiary tack: that we tacitly reverse an IJ’s
adverse credibility finding when reviewing the record as a
whole, unless the BIA has explicitly adopted that finding.
See Zhiqiang Hu v. Holder, 652 F.3d 1011 (9th Cir. 2011);
Singh v. Holder, 753 F.3d 826 (9th Cir. 2014). This
suggestion runs directly counter to the REAL ID Act, itself;
moreover, the statement in both cases was unnecessary and
non-binding.
In Hu, the court determined “the IJ’s adverse credibility
finding is not supported by substantial evidence.” 652 F.3d
at 1016 n.4. A fact-finder’s adverse credibility finding
unsupported by substantial evidence is reversable error, and
thus cannot properly be relied on by this court as part of the
evidentiary record “as a whole,” regardless of what the BIA
did with it. Therefore, Hu’s statement—that “[t]he BIA’s
decision is silent on the issue of credibility, despite the IJ’s
explicit adverse credibility finding, so we may assume that
the BIA found Hu to be credible”—is, in addition to being
an obvious logical fallacy, pure dictum. That statement
made no difference to the case’s disposition. 652 F.3d at
1016. To support this dictum, Hu cites a pre-REAL ID Act
20 VELASQUEZ-GASPAR V. BARR
case, Krotova v. Gonzales, 416 F.3d 1080, 1084 (9th Cir.
2005). Krotova says that “[w]hen the BIA’s decision is
silent on the issue of credibility, despite an IJ’s explicit
adverse credibility finding, we may presume that the BIA
found the petitioner to be credible.” Id. But just like in Hu,
Krotova’s statement too is dictum; in its very next sentence,
Krotova declared: “the IJ’s adverse credibility finding is not
supported by substantial evidence.” Id. 9
Singh similarly recited the Krotova dictum but did not
rely upon it. 753 F.3d at 828, 835. Like Hu and the present
case, the IJ in Singh determined the alien’s testimony was
not credible, and the BIA did not expressly adopt that
finding. Id. at 828. Yet both the IJ and the BIA weighed the
alien’s testimony against other record evidence and denied
relief. Id. at 830, 83–37. On one hand, the panel in Singh
purportedly credited the testimony (pursuant to Krotova),
but on the other, affirmed the BIA’s and IJ’s decision to
weigh and discount that testimony, which was contradicted
by compelling record evidence. Id. at 835–36. Ultimately,
Singh merely reaffirmed the agency’s right to weigh
conflicting evidence. Id. at 837. According to the court, the
IJ weighed the very testimony it found non-credible and
reached a conclusion supported by substantial evidence. Id.
at 835. Like the other cases that purport to embrace the
Krotova dictum, it made no difference to Singh’s outcome.
Id. at 837.
9
It is also worth emphasizing that Krotova is a pre-REAL ID Act
case. And the earlier cases Krotova cites for its dictum do not,
themselves, support it. 416 F.3d at 1084 (citing Maldonado-Cruz v.
I.N.S., 883 F.2d 788, 789 (9th Cir. 1989) (neither the IJ nor the BIA made
an adverse credibility finding) and Damaize-Job v. I.N.S., 787 F.2d 1332,
1337 (9th Cir. 1986) (finding the IJ’s adverse credibility finding
unsupported by substantial evidence).
VELASQUEZ-GASPAR V. BARR 21
Admittedly, that is a lot of unnecessary recitation of
dicta. One might suppose that if dicta is repeated enough,
even as dicta, it eventually becomes law. But that isn’t the
rule. See In re Magnacom Wireless, LLC, 503 F.3d 984,
993–94 (9th Cir. 2007) (“In our circuit, statements made in
passing, without analysis, are not binding precedent.”); see
also Estate of Magnin v. C.I.R., 184 F.3d 1074, 1077 (9th
Cir. 1999) (“When a case assumes a point without
discussion, the case does not bind future panels.”).
That is a good thing—at least in this case—because the
Krotova dictum, if it ever had merit, clearly has none in the
post-REAL ID Act world. “[D]icta distilled from dicta,”
Poventud v. City of New York, 715 F.3d 57 (2d Cir. 2013)
(Jacobs, C.J., dissenting), even copiously imbibed, remains
too low-proof a spirit to wheedle our court into ignoring
clear statutory and Supreme Court directives.
I’ve already noted how such a rule would not be
consistent with 8 U.S.C. § 1252(b)(4) and the Supreme
Court’s clear command that we must not reverse the BIA
unless the evidentiary record “considered as a whole . . .
compels it.” Elias-Zacarias, 502 U.S. at 481 & n.1.
Moreover, it is obvious that actual application of the Krotova
dictum in a case where it mattered would undermine either
the BIA’s proper role on appeal or ours on review, or both.
The BIA’s “Scope of Review” regulations bear this out:
The Board will not engage in de novo review
of findings of fact determined by an
immigration judge. Facts determined by the
immigration judge, including findings as to
the credibility of testimony, shall be reviewed
only to determine whether the findings of the
immigration judge are clearly erroneous.
22 VELASQUEZ-GASPAR V. BARR
8 C.F.R. § 1003.1(d)(3)(i) (emphasis added). In this case,
the BIA inherited the IJ’s explicit adverse credibility finding,
and never found it “clearly erroneous.” That adverse
credibility finding thus remains part of the record, even
though the BIA ruled in reliance on evidence that did not
hinge upon the non-credibility of the petitioner’s testimony.
Likewise, that finding remains part of the record this court
inherits on review. “[T]he court of appeals shall decide the
petition only on the administrative record on which the order
of removal is based, [and] the administrative findings of fact
are conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(1)(4)(A)–(B).
It follows that when this court sua sponte “assumes” or
“presumes” the truthfulness of testimony the IJ has explicitly
found non-credible (which the BIA has not found “clearly
erroneous”), we flagrantly disregard 8 U.S.C. § 1252 and
8 C.F.R. § 1003.1. That is precisely what the dissent has
done here. Velasquez-Gaspar’s testimony, according to the
dissent, is the dispositive factor that pushes her petition over
the evidentiary hurdle and distinguishes this case from
Castro-Perez. 10 But we may not revive and credit non-
credible testimony by presumptive fiat.
The dissent’s willingness to do so here ignores the law
by permitting the court to rewrite conclusive findings of the
administrative record through the power of presumption
rather than substantial evidence review. But the only
presumption we may legitimately draw here is that the law
means what it says. This court does not deem testimony
credible, for that would be doing what even the BIA may
10
It is notable that in Castro-Perez, “the IJ expressly determine[d]
the petitioner [wa]s credible.” 409 F.3d at 1071.
VELASQUEZ-GASPAR V. BARR 23
not: “engag[ing] in de novo review of findings of fact.”
8 C.F.R. § 1003.1(d)(3)(i). Rather, the court reviews the
BIA’s decision in the context of the entire record as the BIA
received it, adverse credibility findings and all.
PAEZ, Circuit Judge, dissenting:
Although our standard of review is deferential, as the
majority states, “deference does not mean blindness.” Li v.
Ashcroft, 356 F.3d 1153, 1158 (9th Cir. 2004) (en banc).
Velasquez-Gaspar presented unrebutted evidence that the
Guatemalan government systematically fails to hold
perpetrators of gender-based violence accountable for their
crimes. Because this evidence and her personal experiences
compel the conclusion that the Guatemalan government was
unable or unwilling to protect her from further abuse, I
would grant the petition for review and remand for further
proceedings.
The agency relied principally on the 2014 State
Department Country Report (“2014 Report”) to find that the
Guatemalan government is able and willing to protect
victims of domestic violence. The 2014 Report found that
Guatemalan law authorizes prison sentences for perpetrators
of gender-based violence and that the government secured a
number of convictions under those statutes.
In principle, Guatemalan law criminalizes rape and
domestic violence. In practice, it does not. Contrary to the
agency’s interpretation of the 2014 Report, the State
Department was clear on this point: it noted that police have
“minimal training or capacity to investigate sexual crimes or
assist survivors of such crimes, and the government did not
enforce the law effectively.” This systemic failure has
24 VELASQUEZ-GASPAR V. BARR
created an environment in which victims “frequently d[o]
not report crimes due to lack of confidence in the justice
system, social stigma, and fear of reprisal.”
The agency, in my view, mischaracterized the contents
of the 2014 Report. Specifically, as evidence that “the
Guatemalan government does investigate and prosecute
domestic violence crimes,” the IJ noted that the government
had secured “976 convictions in cases of intrafamily
violence against women and children as of the end of
September [of 2014].”
The IJ failed to note, however, that the 2014 Report also
indicated that the government received 48,132 official
reports of these crimes over the same time period. Assuming
that each survivor of domestic violence reported their abuser
to the police, these statistics indicate that ninety-eight
percent of abusers faced no consequences for their crimes,
even when their victims went to the police for help. The IJ
likewise observed that the Guatemalan government
successfully prosecuted 304 sexual assault cases. But again,
the IJ failed to include context for this number: during the
same period of analysis, the government received 8,871
reports of these crimes, indicating that over ninety-six
percent of reported sexual assaults went unpunished. The
same page of the 2014 Report detailing these statistics also
notes that homicides of women resulted in convictions “1 to
2 percent” of the time.
Ultimately, this evidence compels the conclusion that the
Guatemalan government is utterly unable to protect the
overwhelming majority of women from men like Gonzalez.
To be sure, the BIA also noted that the Guatemalan
government has created specialized law-enforcement units
and programs to address the violence against women. But
these efforts suggest only that the Guatemalan government
VELASQUEZ-GASPAR V. BARR 25
is willing to address these crimes. The hard evidence
compels the conclusion that it is unable to do so.
The majority’s reliance on Castro-Perez v. Gonzales is
misplaced. 409 F.3d 1069 (9th Cir. 2005). In Castro-Perez,
the applicant—a survivor of rape at the hands of her
boyfriend—testified that she did not report the attack to the
Honduran police because she did not think they would do
anything to help her. Id. at 1072. She further feared that her
father would beat her if she reported her boyfriend to the
police. Id. We held that the BIA did not err in finding that
the petitioner failed to meet the unable-or-unwilling element
of proving past persecution. Id.In so holding, we specifically noted that the country
report in that case was “not particularly enlightening.” Id.Indeed, the report did not include any information on the
efficacy of Honduran law enforcement; it merely noted that
Honduran law criminalized rape. Id. Because the report did
not suggest that the Honduran government failed to enforce
the law, Castro-Perez could not meet her burden of proof.
Id.Velasquez-Gaspar presented the concrete evidence that
Castro-Perez did not. In contrast to the Honduran Country
Report in Castro-Perez, the 2014 Report for Guatemala
establishes that the government fails to protect women like
Velasquez-Gaspar. And Velasquez-Gaspar supplemented
this evidence with her own testimony (assumed credible by
the BIA) about her abuse and why she did not report it to the
police—she feared specific, targeted threats of reprisal from
her abuser. Velasquez-Gaspar further testified that she
believed the police would likely be of little help given their
susceptibility to bribes and their prejudice against
indigenous people like herself. For these reasons, Castro-
Perez provides little guidance.
26 VELASQUEZ-GASPAR V. BARR
Bringas-Rodriguez v. Sessions instead controls.
850 F.3d 1051, 1072 (9th Cir. 2017) (en banc). In that case,
we made clear that Castro-Perez did not establish a bright-
line rule applicable to all or even most survivors of rape at
the hands of an intimate partner. 850 F.3d at 1066 n.9. We
explained that because Castro-Perez did not offer any
concrete evidence that the Honduran government failed to
enforce its rape laws, her “reasons for not reporting . . .
[were] insufficient to establish governmental inability or
unwillingness to protect her.” Id. (citing Ornelas-Chavez v.
Gonzalez, 458 F.3d 1052, 1057–58 (9th Cir. 2006)).
Bringas-Rodriguez stands for the principle that on-the-
ground conditions—not official policies or programs—are
what matter. Id. at 1072 (declining to afford weight to
Mexico’s “laud[able] . . . efforts” to protect gay and lesbian
people because “it is well recognized that a country’s laws
are not always reflective of actual country conditions”). The
BIA thus erred when it “falsely equated legislative and
executive enactments prohibiting persecution with on-the-
ground progress.” Id. at 1075. Just so here. 1
The concurrence makes much of the fact that the IJ found
Velasquez-Gaspar not credible. But her credibility is not
properly before us. When the BIA issues its own decision
instead of simply adopting the IJ’s decision, “our review ‘is
limited to the BIA's decision, except to the extent the IJ's
opinion is expressly adopted.’” Hosseini v. Gonzales,
1
The concurrence misunderstands my position on Castro-Perez.
According to the concurrence, I treat Velasquez-Gaspar’s testimony as
“the dispositive factor that pushes her petition over the evidentiary
hurdle and distinguishes this case from Castro-Perez.” Concurrence 22
(emphasis in original). That characterization is plainly wrong.
Velasquez-Gaspar’s testimony alone does not differentiate her case from
Castro-Perez. Rather, it is the 2014 Report’s statistical evidence on
Guatemalan law enforcement that does so.
VELASQUEZ-GASPAR V. BARR 27
471 F.3d 953, 957 (9th Cir. 2006) (quoting Cordon-Garcia
v. INS, 204 F.3d 985, 990 (9th Cir. 2000)). We “cannot
affirm the BIA on a ground upon which it did not rely.”
Arrey v. Barr, 916 F.3d 1149, 1157 (9th Cir. 2019) (quoting
Navas v. I.N.S., 217 F.3d 646, 658 n.16 (9th Cir. 2000)).
Although Velasquez-Gaspar challenged the IJ’s adverse
credibility finding on appeal, the BIA did not address her
argument. Instead, the BIA explicitly assumed that
Velasquez-Gaspar testified credibly. Accordingly, we
review the BIA’s decision based on its assumption that
Velasquez-Gaspar was a credible witness.
The concurrence errs in classifying the IJ’s credibility
finding as part of the “evidentiary record before the BIA”
which we must consider in deciding the petition for review.
Concurrence 16. But the IJ’s credibility determination is not
itself record evidence. Rather, it reflects the weight the IJ
ascribed to certain record evidence—Velasquez-Gaspar’s
testimony. And it is subject to clear-error review by the BIA.
Ridore v. Holder, 696 F.3d 907, 911 (9th Cir. 2012);
8 C.F.R. § 1003.1(d)(3)(i).
In my view, the record evidence as a whole compels the
conclusion that the Guatemalan government was unable to
protect Velasquez-Gaspar from Gonzalez. Parada v.
Sessions, 902 F.3d 901, 908–09 (9th Cir. 2018) (quoting
Afriyie v. Holder, 613 F.3d 924, 931 (9th Cir. 2010)). The
evidence relied upon by the agency in concluding otherwise,
when fully considered, actually shows that almost all
perpetrators of gender-based violence in Guatemala carry
out their crimes undisturbed by law enforcement, even when
their victims reach out for help. Accordingly, substantial
evidence does not support the BIA’s decision dismissing
Velasquez-Gaspar’s appeal. I respectfully dissent.