Deysi Escobar de Henriquez and her son, Jose Fernando Henriquez-Escobar, natives of El Salvador, sought asylum, withholding of removal, and relief under the Convention Against Torture (CAT). They alleged that in 2015, a gang leader known as La Escopeta threatened them. The petitioners argued this persecution was based on their membership in a particular social group: Salvadorians who had testified against MS-13 members and were now perceived as police informants. They also claimed the government was unable or unwilling to control the gang. An Immigration Judge denied their applications, and the Board of Immigration Appeals affirmed the decision without issuing a separate opinion. The petitioners appealed to the Ninth Circuit, challenging the IJ's findings on the nexus to a protected ground and the government's inability to control the persecutors.
The panel reviewed the denial of asylum and withholding of removal for substantial evidence, meaning they must uphold the agency's decision unless the evidence compels a contrary conclusion. The court first addressed procedural forfeiture. It held that petitioners forfeited any challenge to the IJ's determinations regarding the nexus to a protected ground and government control because they failed to properly argue these points in their opening brief. Under Ninth Circuit precedent, issues not raised in the opening brief are deemed abandoned. Even if the arguments had not been forfeited, the court found substantial evidence supported the IJ's factual findings. Regarding the nexus, the record showed that while the petitioners testified against gang members Yesenia and Edenilson in 2008, the gang leader La Escopeta did not mention them when issuing threats in 2015, nor did the original victims confront the petitioners about their involvement. Thus, the record did not compel a finding that the 2015 threats were motivated by the petitioners' prior testimony. Regarding government control, the court noted that Salvadoran authorities had investigated and successfully prosecuted the original gang members in 2007. Furthermore, the IJ observed that the petitioners had no issues with gang members between 2008 and 2015, and local police occasionally intervened to force gang members out of the area. Finally, the court held that the petitioners forfeited any challenge to the denial of CAT relief by failing to meaningfully challenge it in their opening brief and failing to exhaust the claim before the BIA, invoking the mandatory exhaustion requirement under 8 U.S.C. § 1252(d)(1).
The petition for review is denied, and the BIA's dismissal of the asylum, withholding, and CAT claims stands. The motion to stay removal is denied, but the existing temporary stay of removal remains in place until the mandate issues. The decision reinforces the strict forfeiture rules in immigration appeals, requiring petitioners to raise all substantive arguments in their opening briefs, and confirms that the Ninth Circuit will not overturn factual findings regarding gang motive and government control absent a compelling record showing the agency was clearly wrong.
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