Unreported / Non-Citable
Background
Berenice Hernandez Martinez, a native and citizen of Mexico, petitioned for review of the Board of Immigration Appeals' (BIA) decision denying her applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Her two daughters were derivative beneficiaries on the asylum application. The agency denied relief after concluding that Hernandez Martinez had not demonstrated that the Mexican government would be unwilling or unable to protect her from private actors, nor that she faced a particularized threat of torture with government acquiescence. The Ninth Circuit had jurisdiction under 8 U.S.C. § 1252 and reviewed the BIA's legal conclusions de novo and factual findings for substantial evidence.
Hernandez Martinez testified to several incidents in Mexico, including robberies and threats, but acknowledged she did not report most of them to the police. At various points during her hearing before the Immigration Judge (IJ), she suggested both that the police could have assisted her and that reporting would have been futile. The IJ and BIA relied on country conditions evidence indicating that while crime and corruption persist in Mexico, the government is taking credible steps to address criminal activity. The BIA dismissed her appeal, and she timely petitioned the Ninth Circuit for review.
The Court’s Holding
The Ninth Circuit denied the petition for review. Regarding asylum and withholding of removal, the court held that substantial evidence supported the agency's conclusion that Hernandez Martinez failed to prove the Mexican government was unwilling or unable to protect her. The court affirmed that while reporting persecution is not an absolute requirement, an applicant's failure to report is a relevant factor, and a subjective belief in the futility of reporting is insufficient without additional evidence to establish government inability or unwillingness. The court also rejected the argument that the BIA misapplied the legal standard regarding government unwillingness, finding that despite a single misstatement, the BIA correctly stated and applied the law at multiple points and considered evidence of government efforts to combat crime.
On the CAT claim, the court held that substantial evidence supported the denial because Hernandez Martinez did not identify specific evidence showing a particularized threat of torture inflicted by or with the acquiescence of a public official. The generalized evidence of violence and crime in Mexico was not particular to her, and the incidents she described—robberies and threats—did not constitute past torture. The court further held that the agency satisfied its obligation to consider all evidence, noting that the IJ explicitly analyzed the testimony and country conditions and stated he had considered and weighed the record. The court declined to address remaining arguments regarding the IJ's analysis because the BIA did not reach those issues, limiting review to the grounds explicitly relied upon by the BIA.
Key Takeaways
- Substantial evidence supported the agency's finding that Mexico is taking credible steps to combat crime, undermining the claim that the government is unable or unwilling to protect the petitioner.
- An applicant's failure to report persecution to authorities is a permissible factor for the agency to weigh, and a subjective belief that reporting would be futile is insufficient without corroborating evidence.
- A single misstatement of the legal standard by the BIA does not require remand if the decision as a whole correctly states and applies the law.
- CAT protection requires a particularized threat of torture with government acquiescence; generalized country conditions evidence of crime and violence is insufficient.
- The agency need not discuss every piece of evidence so long as the record indicates it considered all evidence, and a general statement to that effect may suffice absent indication that highly probative evidence was ignored.
Why It Matters
This decision reinforces the high bar for establishing government unwillingness or inability to control private persecutors in asylum cases, particularly where country conditions show governmental efforts to address crime. It clarifies that while failure to report is not dispositive, it remains a significant factor, and speculative claims of futility cannot substitute for concrete evidence. The ruling also affirms that CAT claims require particularized evidence of torture risk and government acquiescence, not merely generalized violence. Practitioners should note the court's willingness to overlook isolated legal misstatements by the BIA when the overall analysis is sound, and the limited scope of review when the BIA does not adopt all of the IJ's reasoning.