Wilver Alexander De La Rosa Martinez, a citizen of El Salvador, sought protection in the United States by applying for asylum, withholding of removal, and protection under the Convention Against Torture. He claimed he feared persecution from the MS-13 gang due to his relationship with his brother, a police informant, and also feared persecution by the Salvadoran government due to perceived gang affiliations. An immigration judge denied his applications, and the Board of Immigration Appeals dismissed his appeal. The petitioner then petitioned the Ninth Circuit for review, arguing that the immigration judge committed procedural errors and that the agency's factual findings were not supported by substantial evidence.
The Ninth Circuit reviewed the case de novo for due process violations and for substantial evidence regarding the asylum and withholding claims. The court addressed three primary issues. First, regarding the alleged error of admitting DHS interview notes, the court applied the harmless error standard. The court noted that the immigration judge did not accept the notes' assertion that the petitioner was a gang member as true, instead crediting the petitioner's contrary testimony. Because the petitioner could not show that the outcome would have been different had the notes been excluded, the error was harmless. Second, the court addressed the rejection of expert testimony from Dr. Boerman regarding Salvadoran witness protection laws. The court reiterated that immigration judges are free to credit part of a witness's testimony without accepting it all. The expert's testimony that witness protection laws are ineffective contradicted the petitioner's claim that his brother was effectively protected. Additionally, the expert did not explain whether the specific interview notes were part of any information-sharing protocol with the Salvadoran government. Thus, the judge's decision to discount those portions of the testimony was reasonable. Third, the court analyzed the two theories of persecution. For the claim that the government cannot control the gang, the court found the record showed police had protected the petitioner on multiple occasions, meaning the government was not unable or unwilling to control the gang. For the claim that the government would persecute him for gang affiliation, the court found no evidence that the government would detain him, as he had never been detained despite his brother's history. The court also found it unlikely that the 'for official use only' interview notes would be shared with Salvadoran authorities. Consequently, the petitioner failed to show that no reasonable factfinder could reject his claims.
The petition for review is denied, leaving the Board of Immigration Appeals' dismissal order in effect. The petitioner's motion for a stay of removal is also denied, though the temporary stay remains in place until the mandate issues. The decision reinforces the high burden placed on asylum applicants to prove that the agency's factual findings are clearly unreasonable and clarifies that procedural errors are not reversible if they did not affect the outcome of the proceeding.
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