FILED

NOT FOR PUBLICATION

MAR 5 2024

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CONSUELO EMPERATRIZ No. 22-607

NAVARRETE-GONZALEZ ET AL,

Agency Nos. A209-234-823 Petitioner, A209-234-824

v.

MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Argued and Submitted February 14, 2024 Pasadena, California

Before: W. FLETCHER, NGUYEN, and LEE, Circuit Judges. Partial Dissent by Judge LEE.

Petitioners Consuelo Emperatriz Navarrete-Gonzalez and her minor

daughter (“Petitioners” or “Navarrete-Gonzalez”), natives and citizens of El

Salvador, seek review of the Board of Immigration Appeals’ (“BIA”) decision

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. denying their applications for asylum, withholding of removal, and protection

under the regulations implementing the Convention Against Torture (“CAT”). We

have jurisdiction under 8 U.S.C.§ 1252.

Navarrete-Gonzalez testified that members of the 18th Street gang in El

Salvador extorted her, threatening to kill her and her daughter if she failed to pay

them. On May 30, 2016, two gang members came to her house, and threatened to

kill her and her family if she did not pay them $3000. A couple of weeks later,

gang members accosted Navarrete-Gonzalez and her daughter again. After

Navarrete-Gonzalez told the gang members she could not pay, one gang member

pulled out a gun, threatened to kill her and her daughter, and told her that “they

were not playing” and that “this was [her] last warning.” She believed the gang

members would follow through on their threats. She testified that her cousin had

been killed for ignoring death threats, as well as her neighbor and his son. She

subsequently fled to the United States with her minor daughter.

Though the Immigration Judge (“IJ”) found Navarrete-Gonzalez’s testimony

credible, the IJ and BIA denied her applications for asylum, withholding of

removal, and relief under CAT. We review for substantial evidence factual

findings that an applicant has not established eligibility for asylum, withholding of

removal, or CAT relief. 8 U.S.C. § 1252(b)(4)(B); Plancarte Sauceda v. Garland,

2 23 F.4th 824, 831 (9th Cir. 2022). We deny in part and grant in part the petition

for review, and remand.

1. The BIA’s denial of Navarrete-Gonzalez’s claims for asylum and

withholding of removal is supported by substantial evidence. The BIA found that

Navarrete-Gonzalez was not persecuted on account of a protected ground—a

necessary element of both asylum and withholding claims. 8 U.S.C. §

1158(b)(1)(B)(i); 8 U.S.C. § 1231(b)(3)(A). The BIA held that economic gain

rather than a protected ground motivated the gang members. Substantial evidence

supports that holding. Navarrete-Gonzalez testified that the gang members

targeted her because they knew her parents lived in the United States and were

sending her money.

2. To obtain relief 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.” 8 C.F.R. § 1208.16(c)(2). A CAT claim also requires a showing of

government acquiescence. Madrigal v. Holder, 716 F.3d 499, 509 (9th Cir. 2013)

(citing 8 C.F.R. § 208.18(a)(7)). The BIA rejected the CAT claim, holding that

Navarrete-Gonzalez had not shown either a likelihood of torture or government

acquiescence. However, in reaching both holdings, the BIA neglected highly

probative evidence supporting Navarrete-Gonzalez’s CAT claim.

3 The BIA concluded that there was no likelihood of torture because

Navarrete-Gonzalez’s fear that she and her daughter would be killed was based on

“a chain of assumptions and speculation.” While mere speculation alone cannot

establish a risk of torture, Navarrete-Gonzalez testified that her family was

threatened on two occasions by a gang that is known to carry out death threats.

She also testified that three other individuals she knew—her cousin, her neighbor

and his son—were killed for defying the gangs. The BIA also found that

Navarrete-Gonzalez did not “present[] sufficient particularized evidence to show

any state actor would be willfully blind to her feared torture.” However, in

addition to providing country conditions evidence, Navarrete-Gonzalez testified

that the police are infiltrated by and cooperate with gang members and that she had

previously called the police about robbers and no police ever came to investigate

her calls. Neither the IJ nor the BIA acknowledged the existence of any of this

evidence in denying relief under CAT.

This Court has been clear that “all evidence relevant to the possibility of

future torture shall be considered” in the evaluation of a CAT claim. Cole v.

Holder, 659 F.3d 762, 770 (9th Cir. 2011) (citing 8 C.F.R. § 1208.16(c)(3)). While

the BIA need not discuss each piece of evidence submitted,“where there is any

indication that the BIA did not consider all of the evidence before it, a catchall

4 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.” Id. at 771–72; see also Diaz-Reynoso v. Barr, 968 F.3d

1070, 1089 (9th Cir. 2020). Here, the IJ and the BIA entirely failed to mention,

much less give “reasoned consideration” to, any of Navarrete-Gonzalez’s

particularized evidence showing risk of future torture or the acquiescence of a state

official. Cole, 659 F.3d at 772.

When the BIA justifies the denial of relief with conclusory boilerplate

language, and neglects highly probative evidence to the contrary, “the decision

cannot stand.” Id. Accordingly, we grant the petition and remand on the CAT

claim.

PETITION FOR REVIEW DENIED IN PART AND GRANTED IN

PART; REMANDED.

Each party shall bear its own costs.

5

FILED

Navarette-Gonzalez, et al. v. Garland, No. 22-607: MAR 5 2024 LEE, Circuit Judge, dissenting in part. MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I respectfully dissent from the majority’s decision to partially grant the petition

on the Convention Against Torture (CAT) claim. The majority stresses the agency’s

failure to specifically address Consuelo Navarrete-Gonzalez’s testimony that her

cousin, neighbor, and neighbor’s son were killed by gang members for ignoring death

threats. But when reviewing the agency’s decision, “we apply a ‘presumption that the

BIA did review the record.’” Hernandez v. Garland, 52 F.4th 757, 771 (9th Cir. 2022)

(quoting Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir. 2006)). And “if evidence

is neither ‘highly probative nor potentially dispositive,’ the [BIA] need not expressly

discuss it.” Id. (quoting Castillo v. Barr, 980 F.3d 1278, 1283 (9th Cir. 2020)).

Navarrete-Gonzalez’s declaration about the gang killings was vague. For

example, she did not explain why those individuals were threatened or ultimately killed

by gangs. Without more, a general assertion of criminal activity cannot be considered

highly probative or dispositive of Navarrete-Gonzalez’s likelihood of future torture,

especially given the substantial and countervailing evidence. For example, neither

Navarrete-Gonzalez nor her daughter was ever harmed in El Salvador, and she has

adduced no evidence that anyone is looking for her. Indeed, Navarrete-Gonzalez’s

grandmother and sister currently reside in El Salvador unharmed. Thus, I do not

believe the agency erred in failing to specifically address this claim.

The majority opinion also points out that the agency did not address Navarrete-

1 Gonzalez’s assertion that the police had failed to investigate her report that robbers

wanted to (but did not ultimately enter) her home. But that claim of “general

ineffectiveness on the government’s part to investigate” is also insufficiently probative

and dispositive of government acquiescence to criminal activity. Id. at 770.

Because we presume that the agency reviewed the record, and as it did not ignore

highly probative or potentially dispositive evidence, I do not believe the record compels

reversal of the denial of CAT relief. I respectfully dissent.

2