Unreported / Non-Citable
Background
Heidi Noemi Cardona Hernandez and her minor child, A.A.C.H., petitioned the Ninth Circuit for review of two Board of Immigration Appeals decisions. The first upheld an Immigration Judge's denial of their applications for asylum, withholding of removal, and protection under the Convention Against Torture; the second denied their motion to reopen the BIA's prior decision. The consolidated memorandum, argued and submitted on September 17, 2026 in Pasadena, California, bears appellate Nos. 24-1579 and 25-4466 and invokes jurisdiction under 8 U.S.C. § 1252.
The petitioners argued that the BIA applied the wrong standard of review to the IJ's nexus determination. Their CAT claim turned on whether the record compelled a conclusion that the Guatemalan government would acquiesce in their torture. Their reopening request relied on Cardona Hernandez's declaration and a police report describing an incident involving one of their family members, together with assertions about changed country conditions.
The Court’s Holding
The court rejected the standard-of-review challenge. The BIA must review de novo whether a persecutor's motives meet the legal nexus standards for asylum and withholding of removal, but it must review the IJ's underlying factual findings for clear error. Because the finding at issue was that there was no evidence anyone would harm Cardona Hernandez because of her family membership or because she witnessed a crime, the BIA correctly applied the clear-error standard.
On CAT protection, the court applied substantial-evidence review and held that the record did not compel the conclusion that the Guatemalan government would acquiesce to petitioners' torture. The police assisted Cardona Hernandez after she reported being threatened by gang members, including promising to patrol near where she lived, and the country-conditions report showing some police corruption was too general to establish acquiescence, since general governmental ineffectiveness in investigating and preventing crime will not suffice.
The court also found no abuse of discretion in the BIA's denial of the motion to reopen. The police report belied the declaration's statement that the family member could not report gang violence to the police and reflected indiscriminate rather than targeted violence, while statements about a separate attack on a different family member were vague and did not even say when the attack occurred. Even accepting those statements as true, the BIA determined that petitioners failed to show country conditions had changed sufficiently. The court denied both petitions for review, denied the stay motion in No. 25-4466, and lifted the temporary stay of removal.
Key Takeaways
- The BIA reviews the legal nexus question de novo but reviews the IJ's underlying factual findings only for clear error.
- Evidence that police assisted a threatened petitioner, including promising patrols near her home, can defeat a claim that the record compels a finding of Guatemalan government acquiescence in torture.
- General evidence of police corruption or governmental ineffectiveness does not by itself establish acquiescence for CAT protection.
- On a changed-country-conditions motion to reopen, new evidence considered with the original record must establish prima facie eligibility, and the BIA may not make ordinary credibility determinations but need not accept inherently unbelievable facts as true.
- The court denied both petitions for review, denied the stay motion in No. 25-4466, and expressly lifted the temporary stay of removal.
Why It Matters
The memorandum applies a distinct standard of review to each stage of the immigration case: de novo and clear-error review for the nexus question, substantial-evidence review for CAT acquiescence, and abuse-of-discretion review for the reopening denial. It illustrates how an inconsistency between a declaration and a supporting police report can defeat a reopening request without treating the BIA as free to make ordinary credibility determinations.
The disposition is expressly not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3, so its value is limited to the parties and similarly situated petitioners.