Tania Lizeth Gonzalez-Lara, a native of El Salvador, fled to the United States in 2017 after threats from rival gangs, specifically the 18th Street and Mara Salvatrucha gangs, due to her relationship with a police officer and her cousin's alleged gang affiliations. She sought asylum, withholding of removal, and protection under the Convention Against Torture, claiming persecution based on her membership in particular social groups, including family members of police officers and Salvadoran women. Her Notice to Appear (NTA) did not initially list the time and date of her hearing. During her appeal to the Board of Immigration Appeals (BIA), the law changed with the Ninth Circuit's decision in Posos-Sanchez v. Garland, which held that an NTA omitting the time and date of proceedings does not terminate a noncitizen's continuous physical presence for voluntary departure eligibility. Gonzalez-Lara moved to remand to apply for voluntary departure, arguing she now met the one-year physical presence requirement. The BIA denied the motion, ruling that she could not benefit from the new law because she had never applied for voluntary departure before the Immigration Judge, and affirmed the denial of her other claims, finding her fear of future harm speculative.
The panel addressed two primary issues. First, regarding the motion to remand for voluntary departure, the court agreed with Gonzalez-Lara that the BIA erred in its legal standard. The BIA had held that a noncitizen must have applied for voluntary departure before the Immigration Judge to benefit from a subsequent change in law. The Ninth Circuit clarified that nothing in Posos-Sanchez or the relevant statutes requires such a prior application. The court reasoned that a motion to remand is akin to a motion to reopen and can be used to submit new applications for relief based on intervening changes in law. The court emphasized that the law does not require parties to engage in futile acts, noting that requiring exhaustion where the agency's position is already set would be unreasonable. However, the court then analyzed whether the BIA's error was harmless. To obtain voluntary departure, a noncitizen must meet all statutory criteria, including having the means to depart, the intent to depart, and good moral character. The court found that Gonzalez-Lara failed to allege facts satisfying these additional elements, and the record did not independently establish her prima facie eligibility. Therefore, even if the BIA had applied the correct legal standard, the result would have been the same, rendering the error harmless. Second, regarding asylum and withholding of removal, the court applied the substantial evidence standard. The BIA found that Gonzalez-Lara's fear of future persecution was not objectively reasonable because she presented no evidence that the gangs had shown interest in her, her former partner, or her family since she left El Salvador in 2017. The court found this conclusion supported by substantial evidence, noting that widespread random violence is insufficient to establish a well-founded fear of persecution without specific targeting. Finally, the court held that Gonzalez-Lara waived any challenge to the denial of Convention Against Torture protection by failing to meaningfully argue the issue in her brief to the BIA, as a general challenge does not satisfy the exhaustion requirement.
The petition for review is denied, leaving the BIA's order dismissing Gonzalez-Lara's claims for relief intact. While the decision clarifies that noncitizens do not need to exhaust remedies by applying for relief before an Immigration Judge if a change in law makes the application futile, it reinforces that a remand is only granted if the petitioner can demonstrate prima facie eligibility for the requested relief. Practically, this means that while the legal barrier regarding prior application is removed, petitioners must still prove they meet all substantive requirements for voluntary departure, such as good moral character and intent to depart, to succeed on remand. The decision also reaffirms the high bar for asylum claims based on gang violence, requiring specific evidence of targeting rather than general country conditions.
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