Emilia Velasquez-Gaspar v. William Barr
976 F.3d 1062
| 9th Cir. | 2020Background
- Emilia Velasquez-Gaspar, a Guatemalan citizen, entered the U.S. unlawfully in 2010 and conceded removability; she applied for asylum, withholding of removal, and CAT protection based on abuse by her ex‑boyfriend, Brian Gonzales.
- She testified to repeated beatings, a rape, death threats if she reported him, and fears that police would not help because she is indigenous and officers take bribes; she never reported the abuse.
- She submitted U.S. State Department country reports and witness statements describing Guatemala’s handling of domestic violence, including laws, low conviction rates, resource gaps, restraining orders, shelters (including near her town), and widespread under‑enforcement.
- The IJ denied relief primarily on adverse credibility findings, non‑cognizability of her proposed social group, and that Guatemala could have protected her; the BIA dismissed the appeal in a divided panel, assuming arguendo credibility and relying on the protection finding.
- The Ninth Circuit reviewed only the BIA’s reasoning and denied the petition, holding substantial evidence supports the BIA’s conclusion that the Guatemalan government could have protected her; a concurrence emphasized deference to the BIA and treatment of IJ credibility findings as part of the record; a dissent would have granted review based on country‑report statistics showing pervasive nonprosecution.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether record compels finding Guatemala was unable or unwilling to protect Velasquez‑Gaspar from her abuser (asylum/withholding) | Velasquez‑Gaspar: police biased/bribable and ineffective; reporting would have been futile or dangerous, so she faces future persecution | Government/BIA: Guatemala has laws, prosecutions, restraining orders, shelters and programs; record does not compel finding inability or unwillingness to protect | Court: Denied petition — substantial evidence supports BIA that government could have protected her |
| Proper treatment of IJ adverse credibility finding on review | Velasquez‑Gaspar: BIA assumed her testimony credible; appellate court should treat testimony as credited | Majority/concurring: IJ’s explicit adverse credibility finding remains part of the administrative record unless the BIA clearly rejects it; court must review record as BIA did, deferentially | Court: Majority treats IJ credibility finding as part of record for substantial‑evidence review; BIA’s assumption of credibility did not compel reversal; dissent disagreed |
| Cognizability of proposed particular social group (“women unable to leave relationships”) | Velasquez‑Gaspar argued this social group qualifies for asylum | IJ found group non‑cognizable; BIA did not rule on this issue explicitly | Held: BIA did not decide the social‑group question on appeal and the court did not resolve it (case decided on protection ground) |
| CAT claim and waiver | Velasquez‑Gaspar sought CAT relief | Government: petitioner failed to brief CAT adequately on appeal | Held: CAT claim waived for failure to brief; alternatively would fail absent evidence of public‑official acquiescence to torture |
Key Cases Cited
- Bringas‑Rodriguez v. Sessions, 850 F.3d 1051 (9th Cir. 2017) (past persecution requires it be by government or by forces government cannot control; on‑the‑ground enforcement matters)
- Castro‑Perez v. Gonzales, 409 F.3d 1069 (9th Cir. 2005) (country reports that do not show government failure to enforce laws do not compel government responsibility for private violence)
- Elias‑Zacarias v. I.N.S., 502 U.S. 478 (1992) (standard that BIA factual findings stand unless evidence compels contrary conclusion)
- Ornelas‑Chavez v. Gonzales, 458 F.3d 1052 (9th Cir. 2006) (applicant who did not report must show reporting would have been futile or dangerous)
- Farah v. Ashcroft, 348 F.3d 1153 (9th Cir. 2003) (extremely deferential substantial‑evidence review of agency factual findings)
- Dai v. Sessions, 884 F.3d 858 (9th Cir. 2018) (BIA presumption of credibility applies when neither IJ nor BIA makes an adverse credibility finding)
- Shrestha v. Holder, 590 F.3d 1034 (9th Cir. 2010) (REAL ID Act changed credibility review; deference to IJ demeanor findings)