J.R. v. William Barr
975 F.3d 778
| 9th Cir. | 2020Background
- JR, an El Salvadoran, and his family were targeted by the Mara-18 gang: his nephew (a gang member) severed two of JR’s fingers; JR was later shot seven times (losing a lung); and JR’s son was murdered in 2016. JR reported the crimes and identified local gang leaders.
- Salvadoran authorities arrested the nephew and several gang members; three were convicted for the son’s murder and two others were killed by police; four perpetrators fled to the United States. The prosecutor’s office relocated JR’s family pre-trial to Usulután; after JR testified, the government withdrew protection.
- JR fled El Salvador in September 2017 and sought asylum on arrival to the U.S. in December 2017. The IJ found JR credible but denied asylum, withholding, and CAT relief, reasoning the government was willing and able to protect him; the BIA affirmed on that basis and did not reach whether JR belongs to a particular social group or whether he suffered persecution.
- The Ninth Circuit majority held that substantial evidence does not support the BIA’s conclusion that El Salvador was both willing and able to control Mara-18, emphasizing (a) the withdrawal of protection after JR testified and (b) country‑conditions evidence showing pervasive gang power; the court granted the petition and remanded for further proceedings.
- A dissent argued the government’s arrests, prosecutions, convictions, killings of two suspects, and relocation of the family showed sufficient willingness and ability to protect, and that the majority failed to apply the deferential substantial‑evidence standard.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether El Salvador was "unable or unwilling" to control Mara‑18 | JR: government withdrew protection after his testimony and country conditions show gangs remain powerful; therefore gov't unwilling/unable | Gov't: arrests, prosecutions, convictions, killings, and relocation show willingness and ability to protect | Majority: BIA’s conclusion not supported by substantial evidence; withdrawal of protection and country conditions compel remand |
| Whether JR is a member of a particular social group (witnesses who testify against gangs) | JR: witnesses who testify against gangs form a cognizable particular social group (per Henriquez‑Rivas) | Gov't: (not decided below on this point) | Not decided by court in first instance; remanded to BIA for determination |
| Whether JR suffered harm rising to the level of persecution | JR: shootings, loss of lung, murder of his son, and sustained death threats constitute past persecution | Gov't: (BIA did not find need to address since it decided protection issue) | Not decided by court; remanded to BIA for determination |
| Whether the BIA decision is supported by substantial evidence | JR: the record compels contrary conclusion because protection was withdrawn and gang power persisted | Gov't: record shows active, effective government responses undermining JR’s claim | Court: petition granted — substantial evidence does not support BIA’s willing/able finding; remand required |
Key Cases Cited
- Bringas‑Rodriguez v. Sessions, 850 F.3d 1051 (9th Cir. 2017) (standard: review legal conclusions de novo and factual findings for substantial evidence)
- Henriquez‑Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (witnesses who testify against gang members can constitute a particular social group)
- Afriyie v. Holder, 613 F.3d 924 (9th Cir. 2010) (police reports or responsiveness do not alone establish government ability to protect; inability may stem from lack of resources)
- Doe v. Holder, 736 F.3d 871 (9th Cir. 2013) (police inability to solve a crime does not prove unwillingness or inability where applicant failed to provide specific information to permit investigation)
- Rahimzadeh v. Holder, 613 F.3d 916 (9th Cir. 2010) (applicant must show government both could and would provide protection)
- Madrigal v. Holder, 716 F.3d 499 (9th Cir. 2013) (remand where corruption and local conditions undermine national‑level efforts to control gangs)
- Kaiser v. Ashcroft, 390 F.3d 653 (9th Cir. 2004) (post‑threat harmless period does not necessarily defeat asylum claim when threats are escalating and perpetrators are violent)
- INS v. Ventura, 537 U.S. 12 (2002) (court of appeals should not decide factual issues or legal claims in the first instance when agency has not ruled)
- Wakkary v. Holder, 558 F.3d 1049 (9th Cir. 2009) (when BIA adopts IJ decision and adds analysis, review extends to both decisions)