Lozano-Membreno v. Garland
23-998
9th Cir.Dec 9, 2024Background
- Maria Consuelo Lozano-Membreno, a Salvadoran national, sought asylum, withholding of removal, and protection under the Convention Against Torture (CAT) in the U.S.
- She alleged persecution due to threats and violence from gangs in El Salvador.
- After a reported shooting incident involving her partner Castillo, Salvadoran authorities responded promptly, collected evidence, and escorted him to the prosecutor’s office.
- Additional non-criminal threats were also reported, and Lozano-Membreno acknowledged the government took these seriously.
- Gang members expressed awareness of law enforcement involvement, suggesting concern over official actions.
- The Board of Immigration Appeals (BIA) dismissed her appeal; she petitioned for review by the Ninth Circuit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the Salvadoran government unwilling or unable to protect? | Government protection was insufficient after threats/violence | Authorities responded, investigated, took threats seriously | Lozano-Membreno did not show government unwillingness or inability |
| Eligibility for asylum or withholding of removal | Entitled due to risk of persecution | Not eligible as government provided reasonable protection | Not entitled to asylum or withholding of removal |
| CAT claim (risk of torture with government acquiescence) | Faces harm upon return, state involved | No sufficient state action; authorities responded | CAT claim fails |
| Sufficiency of record evidence | Evidence compels reversal | Substantial evidence supports agency decision | Petition denied |
Key Cases Cited
- Haile v. Holder, 658 F.3d 1122 (9th Cir. 2011) (sets substantial evidence standard for factual findings in immigration cases)
- Truong v. Holder, 613 F.3d 938 (9th Cir. 2010) (addresses government response sufficiency in protection cases)
- Nahrvani v. Gonzales, 399 F.3d 1148 (9th Cir. 2005) (evaluates government’s ability to offer protection from persecution)
- J.R. v. Barr, 975 F.3d 778 (9th Cir. 2020) (gang fear of police as evidence of government power to protect)
- Navas v. INS, 217 F.3d 646 (9th Cir. 2000) (standards for asylum eligibility and government protection)
- Castro-Perez v. Gonzales, 409 F.3d 1069 (9th Cir. 2005) (criteria for withholding of removal based on persecution claims)
- Garcia-Milian v. Holder, 755 F.3d 1026 (9th Cir. 2010) (CAT claim and state action requirement)