Unreported / Non-Citable
Background
A Honduran man, his wife, and their minor child petitioned the Ninth Circuit to review a Board of Immigration Appeals decision affirming an immigration judge's denial of asylum and withholding of removal. The judge also denied Convention Against Torture relief, but the family did not appeal that ruling to the Board or challenge it in court. The family said MS-13 members threatened to kill the father unless he paid a "war tax." The gang had not demanded payment while his brother belonged to it, and the demands began after the brother was killed.
In its first decision, the Board affirmed the finding of no past persecution, dismissed that part of the appeal, and remanded for the judge to consider the risk of future persecution. After the judge again found the family could safely and reasonably relocate, the family tried to raise past persecution again, and the Board said that issue was not before the judge on remand. The Ninth Circuit issued an unpublished memorandum disposition, which is not precedent except as Ninth Circuit Rule 36-3 allows.
The Court’s Holding
The majority denied the petition. It first held the past persecution ruling was reviewable, reading the Board's decisions together as a limited remand that left the original affirmance in place. Reviewing facts for substantial evidence, it found the record did not compel a different result. The death threats tied to the war tax, though troubling, did not compel a finding of persecution even considered cumulatively, because unfulfilled threats generally amount to harassment, and threats to the brother were not directed at the family. On nexus, the gang's earlier forbearance and later demands showed the family lost protection when the brother died rather than being targeted because of the family relationship. The family did not challenge the rulings on other protected grounds. Because past persecution was not shown, the family had to prove a well-founded fear of future persecution, and the finding that they had not shown the gang could find them anywhere in Honduras was supported, partly because relatives, including a father who was a direct target of an earlier threat, lived safely elsewhere in the country.
The panel rejected the improper factfinding claim, finding every fact the Board relied on reflected in the immigration judge's findings. It noted the government failed to answer that argument and forfeited its response, but excused the forfeiture because only pure legal questions were presented and remand would be uneconomical. It presumed the agency considered the record, lifted the temporary administrative stay, and denied the motion to stay removal.
Judge De Alba dissented. He would grant the petition and remand because the Board, rather than reviewing for clear error, substituted its own view of the evidence on nexus, for example by finding the gang did not kill the brother out of animus against his family, which the judge had not found. He argued that at minimum the ambiguity required remand and that none of the grounds for excusing forfeiture applied.
Key Takeaways
- A limited remand does not necessarily strip a court of review of the Board's earlier affirmance on past persecution; the panel read the Board's decisions together to find it was left in place.
- Death threats tied to extortion may still be treated as harassment rather than persecution when the record does not compel a finding of significant actual suffering or harm.
- Losing a relative's protection within a gang is not the same as being targeted because of a family relationship for nexus purposes.
- Applicants who fail to show past persecution carry the burden on future fear, and relatives' safe residence elsewhere can support a relocation finding.
- A party's failure to answer an argument forfeits its response, but the court may excuse forfeiture when only pure legal questions remain.
Why It Matters
Because the disposition is unpublished, it carries no precedential weight, though it shows how panels may apply substantial evidence review in gang-extortion asylum cases and where the Board's role ends and the immigration judge's factfinding begins. Nothing was remanded: the petition was denied and the stay of removal was dissolved.
The dissent shows the panel divided on whether the Board's nexus reasoning amounted to new factfinding and on whether to excuse the government's forfeiture, issues that could recur in other cases.