Unreported / Non-Citable
Background
Petitioner, a native and citizen of El Salvador, asked the Ninth Circuit to review a Board of Immigration Appeals decision dismissing his appeal from an immigration judge's order. The immigration judge had denied his applications for cancellation of removal, withholding of removal, and protection under the Convention Against Torture. The Board affirmed without opinion, so the court treated the immigration judge's decision as the final agency determination.
His claims rested on his testimony that he received threats from gang members at work in El Salvador, that coworkers were killed, and that incidents involving his family occurred. He also contended that removal would cause exceptional and extremely unusual hardship to his U.S. citizen children, including because of poverty, crime, and a son's earlier hearing impairment. The panel decided the case without oral argument in an unpublished memorandum.
The Court’s Holding
The court denied the petition in full. It first rejected the argument that the Board's summary affirmance was legally insufficient, explaining that circuit precedent holds such affirmance does not violate due process and that a separate challenge to the decision to streamline duplicates the merits. On cancellation of removal, the court found substantial evidence that the children's likely hardship was not exceptional and extremely unusual. The immigration judge had misstated the evidentiary requirement by demanding concrete evidence of specific future harm, but the court held that error harmless because relevant evidence was not ignored. Economic decline and generalized crime did not exceed the ordinary consequences of removal, the claim of heightened danger because the father was a known informant was not made in his testimony, and the son's hearing problem appeared resolved.
On withholding of removal, the court considered only the proposed group of former security officers who reported gang members, because the government timely raised that only this group was exhausted before the Board. It said the immigration judge's social-distinction analysis was flawed to the extent it read Henriquez-Rivas too narrowly and did not clearly apply the evidence-based inquiry, but any error was harmless. The judge alternatively assumed a cognizable group and found the record did not show the gang members would remember or target him decades later, and substantial evidence supported that finding. The political-opinion theory failed because the court has repeatedly declined to treat general opposition to gangs as a political opinion, and the record suggested retaliation for reporting crimes rather than a perceived political view.
On Convention Against Torture relief, the court found no past torture. It held that threats from unidentified gang members and the passage of decades did not make future torture more likely than not. It also found no evidence that he sought police protection and was refused, or that officials participated in or condoned harm. Government inaction or general ineffectiveness against crime is not acquiescence. The court also denied his stay-of-removal motion as moot.
Key Takeaways
- A Board summary affirmance without opinion leads the Ninth Circuit to review the immigration judge's decision directly, and the court rejected a due process challenge to that procedure.
- An immigration judge's misstatement of the evidentiary standard on hardship may be harmless where the decision shows relevant evidence was considered and the hardship shown was ordinary.
- A court will consider only the proposed social groups exhausted before the Board when the government timely raises exhaustion.
- A flawed social-distinction analysis does not require remand if the immigration judge alternatively assumed a cognizable group and reasonably found no likelihood of future harm.
- Convention Against Torture relief requires showing likely torture with official consent or acquiescence, and general government ineffectiveness against crime does not meet that test.
Why It Matters
This is a nonprecedential memorandum under Ninth Circuit Rule 36-3, so it binds no later panel, though it illustrates how the court applies existing authority on summary affirmance, hardship, and gang-related claims. Its emphasis is on the passage of time: threats that went unfulfilled decades earlier, with no evidence the gang members remain interested in the applicant, undercut both persecution and torture claims.
The ruling leaves the removal order in place; the court did not remand for further proceedings, and it did not decide whether other proposed social groups could qualify because they were not exhausted. Practitioners should note the exhaustion lesson and the need to put claims of heightened danger, such as informant status, into the testimony itself.