NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 21 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

YESENIA ELIZABETH AGUILAR DE No. 23-1256 PALACIOS; JONATHAN VLADIMIR Agency Nos.

PALACIOS AGUILAR; JOSE A206-894-345

ALEJANDRO PALACIOS AGUILAR, A206-894-344

A206-894-343

Petitioners,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted June 6, 2024** Pasadena, California

Before: CLIFTON and COLLINS, Circuit Judges, and RODRIGUEZ, District Judge.***

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Xavier Rodriguez, United States District Judge for the Western District of Texas, sitting by designation. Petitioners Yesenia E. Aguilar-De Palacios (“Ms. Aguilar”), and her two

minor children (Jonathan and Jose), petition for review of the decision of the Board

of Immigration Appeals (the “BIA”) affirming the Immigration Judge’s (“IJ”)

denial of their applications for asylum, withholding of removal, and Convention

Against Torture (“CAT”) protection. Petitioners are natives and citizens of El

Salvador. Ms. Aguilar and Jonathan filed applications for asylum, for withholding

of removal, and for CAT relief based on threats to their lives by members of the

Mara Salvatrucha (“MS”) gang. Jonathan was also a derivative beneficiary on his

mother’s application for asylum, as was Jose. See Ali v. Ashcroft, 394 F.3d 780,

782 n.1 (9th Cir. 2005) (stating that, unlike asylum, withholding of removal and

relief under the Torture Convention “may not be derivative”). As the parties are

familiar with the facts, we do not recount them further here. We have jurisdiction

under 8 U.S.C. § 1252, and we deny the petition.

This court’s “review is limited to the BIA’s decision except where the IJ’s

opinion is expressly adopted.” Plancarte Sauceda v. Garland, 23 F.4th 824, 831

(9th Cir. 2022) (citing Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th Cir. 2000)).

Where the BIA appears to rely on the IJ’s reasoning, we look to the IJ’s decision

“as a guide to what lay behind the BIA’s conclusion.” Bingxu Jin v. Holder, 748

F.3d 959, 964 (9th Cir. 2014) (citation and internal quotation marks omitted).

This court reviews questions of law de novo and reviews the agency’s

2 23-1256 factual findings for substantial evidence. Perez-Portillo v. Garland, 56 F.4th 788,

792 (9th Cir. 2022). Under the latter standard, the agency’s action should be

upheld “unless any reasonable adjudicator would be compelled to conclude to the

contrary.” Dai v. Garland, 9 F.4th 1142, 1144 (9th Cir. 2021) (citation omitted).

1. Asylum and withholding of removal. To be eligible for asylum, a

petitioner bears the burden of demonstrating a likelihood of “persecution or a well-

founded fear of persecution on account of race, religion, nationality, membership

in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). “To

be eligible for withholding of removal, the petitioner must discharge this burden by

a ‘clear probability.’” Sharma v. Garland, 9 F.4th 1052, 1059 (9th Cir. 2021)

(citation omitted); see 8 U.S.C. § 1231(b)(3).

Eligibility for asylum based on a well-founded fear of future persecution

requires an applicant to satisfy both a subjective and an objective test. Singh v.

INS, 134 F.3d 962, 966 (9th Cir. 1998). Applicants satisfy the subjective test by

credibly testifying that they genuinely fear persecution by their government, or

private actors their government is unable or unwilling to control, on account of a

statutorily-protected ground. Id. The objective component is satisfied where

“credible, direct, and specific evidence in the record” supports a reasonable fear of

persecution. Id. (citation omitted).

3 23-1256 Petitioners argue that the BIA overlooked evidence that the Salvadoran

government, even if willing to control MS, could not meaningfully protect its

citizens in any part of the country from gang violence. This court has previously

held that an agency commits legal error by “focus[ing] only on the . . .

government’s willingness to control” alleged persecutors and “not [the

government’s] ability to do so.” Madrigal v. Holder, 716 F.3d 499, 506 (9th Cir.

2013) (emphasis in original) (remanding to allow the BIA to consider “significant

evidence” that the Mexican government was unable to control Los Zetas).

“[W]here there is any indication that the [agency] did not consider all of the

evidence before it, a catchall phrase does not suffice, and the decision cannot

stand. Such indications include misstating the record and failing to mention

highly probative or potentially dispositive evidence.” Cole v. Holder, 659 F.3d

762, 771–72 (9th Cir. 2011). Still, when reviewing the agency’s analysis, the

court presumes that the agency considered all of the evidence in the record, even

if some evidence is not explicitly mentioned. Hernandez v. Garland, 52 F.4th

757, 770–71 (9th Cir. 2022). “And if evidence is neither ‘highly probative [n]or

potentially dispositive,’ the [agency] need not expressly discuss it.” Id. at 771

(citations omitted).

Although the IJ and BIA could have devoted greater attention to the

efficacy of the Salvadoran government’s gang-related initiatives, Petitioners have

4 23-1256 not shown that the agency ignored evidence that might compel a contrary

conclusion as to the government’s ability to control violence by members of MS.

The evidence of generalized violence in El Salvador does not compel the

conclusion that the Salvadoran government is unable to control gang members in

particular.

Petitioners mistakenly assert that these generalized conditions compel

reversal of the BIA’s decision because they are identical to the conditions cited in

J.R. v. Barr, 975 F.3d 778, 783 (9th Cir. 2020). That case, however, is best

understood as an analysis of the government’s willingness to provide protection.

J.R., 975 F.3d at 783 (“Given its withdrawal of protection, the El Salvadoran

government was, in fact, ‘unwilling to protect’ J.R.” (citation omitted)). The

country conditions cited in J.R. merely demonstrated that the gang was willing to

use violence to advance its objectives, not that the government was unable to

control gang violence. See id.

2. CAT. “To establish entitlement to protection under CAT, an applicant

must show ‘it is more likely than not that he or she would be tortured if removed to

the proposed country of removal.’” Plancarte Sauceda, 23 F.4th at 834 (quoting 8

C.F.R. § 1208.16(c)(2)). “The torture must be ‘inflicted by, or at the instigation of,

or with the consent or acquiescence of, a public official acting in an official

5 23-1256 capacity or other person acting in an official capacity.’” Id. (quoting 8 C.F.R.

§ 1208.18(a)(1)).

“Acquiescence of a public official requires that the public official, prior to

the activity constituting torture, have awareness of such activity and thereafter

breach his or her legal responsibility to intervene to prevent such activity.” 8

C.F.R. § 208.18(a)(7). An applicant need not show that the entire foreign

government would consent to or acquiesce in his torture; he need show only that

“a public official” would so acquiesce. Madrigal, 716 F.3d at 509. “It is

sufficient that the public official be aware that torture of the sort feared by the

applicant occurs and remain willfully blind to it.” Id.

“Evidence that the police were aware of a particular crime, but failed to

bring the perpetrators to justice, is not in itself sufficient to establish acquiescence

in the crime.” Garcia-Milian v. Holder, 755 F.3d 1026, 1034 (9th Cir. 2014).

Rather, this court has reversed agency determinations as to acquiescence “only

when the agency failed to take into account significant evidence establishing

government complicity in the criminal activity.” Andrade-Garcia v. Lynch, 828

F.3d 829, 836 (9th Cir. 2016) (emphasis added). Evidence of complicity must be

sufficiently related to the particular sources of the applicant’s likely torture. See

B.R. v. Garland, 26 F.4th 827, 844 (9th Cir. 2022) (“For example, if the torture is

6 23-1256 likely to arise from violence by the [MS-13] gang, the evidence must show public

officials acquiesce in gang or specifically MS-13 torture.”).

Substantial evidence supports the denial of CAT relief.1 While the country

conditions evidence cited in Petitioners’ briefing chronicles corruption, gang-

affiliated crime, and violence throughout El Salvador, those generalized reports

do not compel the conclusion that Jonathan is likely to be tortured by MS

members with the acquiescence of government agents. See Delgado-Ortiz v.

Holder, 600 F.3d 1148, 1152 (9th Cir. 2010). Petitioners have not presented

evidence of government complicity in MS gang activity in particular. To the

contrary, the country conditions evidence outlines the extensive measures that the

Salvadoran government has taken to address gang violence and official

corruption. Even if those measures have had limited success, evidence that a

government has been generally ineffective in preventing or investigating criminal

activities does not raise an inference that public officials are likely to acquiesce in

torture. Garcia-Milian, 755 F.3d at 1034; see also B.R., 26 F.4th at 845

(“troubling reports” that “on occasion some corrupt officials may turn a blind eye

to cartel activity” could not overcome evidence that “the Mexican government,

1 Petitioners have not contested the BIA’s determination that Ms. Aguilar failed to challenge the IJ’s denial of her application for CAT relief.

7 23-1256 rather than being willfully blind to cartel violence and torture, actively combats

and prosecutes cartel activity”).

PETITION DENIED.

8 23-1256