Alan Quijano Serrano v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 9 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALAN CARLOS QUIJANO SERRANO, No. 19-71845
Petitioner, Agency No. A216-576-695
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 7, 2020
Portland, Oregon
Before: PAEZ and RAWLINSON, Circuit Judges, and ANTOON,** District
Judge.
Alan Carlos Quijano Serrano (“Quijano”) petitions for review of the denial
of his applications for asylum and withholding of removal. The immigration judge
(“IJ”) denied relief, and the Board of Immigration Appeals (“BIA”) affirmed, on
the ground that Quijano failed to establish that the government of El Salvador was
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable John Antoon II, United States District Judge for the
Middle District of Florida, sitting by designation.
“unwilling or unable” to control his persecutors, members of a local gang known
as La Colombia Clique. We have jurisdiction under 8 U.S.C. § 1252, and we
review findings of fact for substantial evidence and questions of law de novo. See
Madrigal v. Holder, 716 F.3d 499, 503 (9th Cir. 2013). “Where, as here, the BIA
agrees with the IJ decision and also adds its own reasoning, we review the decision
of the BIA and those parts of the IJ’s decision upon which it relies.” Duran-
Rodriguez v. Barr, 918 F.3d 1025, 1027–28 (9th Cir. 2019). We grant the petition
and remand for further proceedings.
1. First, the IJ erred in failing to consider whether the Salvadoran
government was able to control Quijano’s persecutors. Because the gang members
are private actors, the IJ was required to assess whether the government was either
unwilling or unable to control them. See Baghdasaryan v. Holder, 592 F.3d 1018,
1023 (9th Cir. 2010). “Willingness to control persecutors” does not establish
ability to do so because “authorities may nevertheless be powerless to stop them.”
J.R. v. Barr, 975 F.3d 778, 782 (9th Cir. 2020) (internal quotation marks omitted).
Here, the IJ found only that the police “took action” against the persecutors. Such
a finding is insufficient to support the conclusion that the police “action” was
effective. See Madrigal, 716 F.3d at 506–07 (remanding where agency “cited
various statistics on the efforts of the . . . government to combat drug violence” but
failed to “examine the efficacy” of those efforts).
2
2. Second, substantial evidence does not support the BIA’s conclusion that
the Salvadoran government was able to control the gang violence. “Some official
responsiveness to complaints of violence, although relevant, does not automatically
equate to governmental ability.” J.R., 975 F.3d at 782. Although the police
demonstrated some responsiveness to the violence, such as by imprisoning one of
the gang members who shot Quijano’s brother, their actions were grossly
ineffective. “Right after” the shooter was incarcerated, other gang members began
to threaten and stalk Quijano, later both original shooters attempted to murder
Quijano and, ultimately, the violence forced Quijano into hiding for his own
survival. See J.R., 975 at 782, 83 (concluding that the Salvadoran government was
“unable” to control the persecutors because the petitioner continued to suffer
attacks from gang members, despite the arrest and imprisonment of one gang
member). Indeed, the government’s control over the gang was so deficient that
gang members successfully pressured both Quijano and his brother to stop
cooperating with the police out of fear for their lives.1 Quijano’s credible
1
The BIA’s statement that Quijano “did not report . . . receiving further
threats from the gang” is flatly contradicted by the record. In his asylum
application, Quijano wrote, “After I was told that me and my family would be
killed if we don’t remove the [police] report . . . I told [the police investigator] I
can’t continue with the accusation or I would be killed along with my family.”
Accordingly, because Quijano disclosed the threats to the police, there was no “gap
in proof,” contrary to the BIA’s and government’s suggestion. Regardless, we
“superseded” our older “gap-in-proof” case law in Bringas-Rodriguez v. Sessions,
850 F.3d at 1069–70, and have held since that it is error “to require [a petitioner]
3
testimony is further bolstered by the country conditions evidence—record evidence
neither the IJ nor the BIA discussed. See Bringas-Rodriguez v. Barr, 850 F.3d
1051, 1069 (9th Cir. 2017) (en banc) (“[O]ur law is clear 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.”); Davila, 968
F.3d at 1143.
In sum, the record evidence compels the conclusion that the Salvadoran
government was unable, even if willing, to protect Quijano. We grant the petition
for review and remand to the BIA to determine whether Quijano otherwise
established past persecution.
PETITION FOR REVIEW GRANTED AND REMANDED.
to make an additional report of subsequent abuse.” Davila v. Barr, 968 F.3d 1136,
1143 (9th Cir. 2020).
4