Ana D. Guardado de Rodriguez, a citizen of El Salvador, sought asylum, withholding of removal, and relief under the Convention Against Torture after suffering abuse from her husband, her son, and gang members associated with her son-in-law. She testified that her husband beat her frequently, including an incident requiring hospitalization, and that she feared her son and son-in-law. Despite these claims, she never reported the abuse to the Salvadoran police, citing a lack of courage regarding her husband and concern for her son's incarceration. The Immigration Judge denied her application, concluding she failed to prove the government was unable or unwilling to control her abusers. The Board of Immigration Appeals upheld this decision, and the Ninth Circuit now reviews the petition.
The court reviewed the agency's factual findings for substantial evidence, meaning the findings are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary. To qualify for asylum or withholding of removal, a petitioner must show persecution by the government or forces the government is unable or unwilling to control. The court found substantial evidence supported the agency's conclusion that the Salvadoran government was not unable or unwilling to control the alleged persecutors. A key factor was the petitioner's failure to report the abuse to the police. The court noted that had she reported her husband's violence, the police could have protected her by taking him to jail. Additionally, the record showed the Salvadoran government was making efforts to combat gang violence. Regarding the Convention Against Torture claim, the court found the petitioner waived the issue because her brief to the BIA contained only a conclusory assertion that failed to engage with the IJ's findings or reasoning. While the Supreme Court in Santos-Zacaria v. Garland overruled the view that such failures are jurisdictional defects, the exhaustion requirement remains a mandatory claim-processing rule that the government timely invoked.
The order of removal remains in effect. The decision reinforces that failure to report domestic violence to local authorities can be fatal to an asylum claim based on private persecution, as it suggests the government is capable of providing protection. It also clarifies that exhaustion of administrative remedies for Convention Against Torture claims is a mandatory claim-processing rule that must be enforced when raised by the government, even if not jurisdictional.
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