Unreported / Non-Citable
Background
Sandra Nunez Monge petitioned the Ninth Circuit to review a Board of Immigration Appeals decision that affirmed an immigration judge's denial of her applications for asylum, withholding of removal, and protection under the Convention Against Torture. The case concerned removal to El Salvador, and the panel decided it without oral argument in an unpublished memorandum disposition. The court reviewed the BIA's factual determinations for substantial evidence and its legal determinations de novo.
Nunez Monge argued that she suffered past persecution at the hands of Oscar Ovidio, her daughter's father, with whom she lived. She described how he yelled at her, made threatening gestures toward her, and once kicked her. She also expressed concern that gangs targeting Ovidio would recognize their association and harm her too. On the CAT claim, she contended that the BIA overlooked background documentation showing the scale of ongoing violence in El Salvador. The BIA had denied that claim because she had not meaningfully argued that a public official would acquiesce in, or be willfully blind to, the claimed harm.
The Court’s Holding
The Ninth Circuit denied the petition for review. On past persecution, it explained that persecution is an extreme concept that does not include every kind of treatment society regards as offensive. Relying on Sharma v. Garland, the panel concluded that the harm Nunez Monge described, while disgraceful, did not compel a finding of past persecution, because physical abuse that did not cause significant injury, verbal abuse, and threats did not collectively rise to that level. Substantial evidence therefore supported the BIA.
Without past persecution, she needed a well-founded fear of future persecution that was both subjectively genuine and objectively reasonable. The court found her concern that gangs would harm her because of her association with Ovidio too speculative on this record. She was never herself harmed or threatened by the gang, and the threats against Ovidio and his mother never escalated into harm, even as his mother continued living in El Salvador. The asylum claim therefore failed. Because she showed no reversible error in the BIA's asylum analysis, she necessarily could not meet the higher burden for withholding of removal.
On the CAT claim, the panel held that she cited no specific record evidence about acquiescence that the BIA should have considered, and that some of her own country-conditions evidence showed government efforts to combat gang violence and root out corruption. The record therefore did not compel a finding that the government would acquiesce in any future harm. The court also denied her motion to stay removal.
Key Takeaways
- Verbal abuse, threats, and physical abuse that did not cause significant injury, considered together, did not compel a finding of past persecution in this case.
- A fear that gangs targeting a partner will recognize and harm the petitioner was too speculative where she was never threatened by the gang and the threats against the partner and his mother never escalated.
- Because the petitioner showed no reversible error on asylum, her withholding of removal claim, which carries a higher burden, failed as well.
- A CAT petitioner who says the agency ignored background evidence must identify the specific record evidence on government acquiescence that was overlooked or misstated, rather than pointing generally to country documentation.
- The decision is an unpublished memorandum and is not precedent except as provided by Ninth Circuit Rule 36-3.
Why It Matters
This memorandum applies established Ninth Circuit authority to a fact pattern combining mistreatment by a partner with fear of gang retaliation. Because it is unpublished, it has no precedential weight, but it shows how the court applies the deferential substantial-evidence standard. Under that standard, relief requires that the record compel a contrary conclusion, not merely permit one.
The disposition resolves only the petition before the panel. The panel did not address particular social groups or nexus, and its ruling rests on the severity of the harm, the speculative nature of the feared future harm, and the lack of acquiescence evidence. The petition and the motion to stay removal were both denied, so the BIA's order stands. For CAT litigants, the memorandum underscores that background evidence must be tied to acquiescence by a public official.