Emilia Velasquez-Gaspar v. William Barr

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EMILIA VELASQUEZ-GASPAR, No. 17-71964

Petitioner,

Agency No.

v. A200-903-039

WILLIAM P. BARR, Attorney General,

Respondent. OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted April 1, 2020

Pasadena, California

Filed September 30, 2020

Before: Richard A. Paez, Consuelo M. Callahan, and

Lawrence VanDyke, Circuit Judges.

Opinion by Judge Callahan;

Concurrence by Judge VanDyke;

Dissent by Judge Paez

2 VELASQUEZ-GASPAR V. BARR

SUMMARY *

Immigration

Denying Emilia Velasquez-Gaspar’s petition for review

of the Board of Immigration Appeals’ denial of asylum and

related relief, the panel held that substantial evidence

supported the agency’s determination that Velasquez-

Gaspar failed to establish that the Guatemalan government

was unwilling or unable to protect her from abuse by her ex-

boyfriend, and that she waived review of her claim under the

Convention Against Torture.

The panel concluded that substantial evidence supported

the agency’s determination that, had Velasquez-Gaspar

reported her abuse, the Guatemalan government could have

protected her from her abusive ex-boyfriend. The panel

noted that the State Department reports show that Guatemala

is working to curb violence against women, that the law

criminalizes rape and domestic abuse, and that officials

investigate and prosecute cases under those laws. The panel

acknowledged that conviction rates are exceptionally low,

and officers often face a lack of resources and training, but

noted that it must analyze not only whether the government

can control the attackers, but also whether it can protect the

attacked. The panel explained that, on this point, the reports

convey that justices of the peace issued restraining orders

and ordered police protection for abuse victims in an

unspecified number of cases, and that Guatemala has

established programs, offices, and shelters for female

*

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

VELASQUEZ-GASPAR V. BARR 3

victims of physical and sexual assault. The panel observed

that one such shelter operates in Quetzaltenango, where

Velasquez-Gaspar lived. The panel explained that although

the State Department reports make clear that Guatemala still

has a long way to go in addressing domestic violence, the

country’s efforts, coupled with the pleas of Velasquez-

Gaspar’s acquaintances that she seek help from police,

suggest that she could have obtained help. As a result, the

panel concluded that, as this court held in an analogous

petition in Castro-Perez v. Gonzales, 409 F.3d 1069 (9th Cir.

2005), it could not say that the record compelled a finding

that the Guatemalan authorities would have been unable or

unwilling to help Velasquez-Gaspar.

The panel also concluded that Velasquez-Gaspar waived

any argument as to her CAT claim by failing to specifically

and distinctly discuss the matter in her opening brief, but

noted that any argument would have failed in any event, as

Velasquez-Gaspar failed to show a likelihood of torture by

or with the acquiescence of public officials.

Concurring, Judge VanDyke agreed with Judge

Callahan’s opinion in full, but wrote separately to address

the dissent’s reliance on Castro-Perez and its treatment of

Velasquez-Gaspar’s testimony as credible. Judge VanDyke

noted that the dissent relies extensively on Velasquez-

Gaspar’s own testimony as supplying “concrete evidence”

that Castro-Perez did not, but Judge VanDyke observed that

the Immigration Judge in this case expressly found that

Velasquez-Gaspar was “not a credible witness,” and that the

Board never rejected that factual finding nor concluded it

was clearly erroneous. Judge VanDyke wrote that when the

Board affirms an IJ’s denial of relief, but does not explicitly

address the IJ’s adverse credibility finding, the Board is not

tacitly reversing that finding; on the contrary, it remains a

4 VELASQUEZ-GASPAR V. BARR

“conclusive” finding in the administrative record that this

court must consider a fixed feature of the record. Judge

VanDyke wrote that the dissent’s willingness to assume or

presume Velasquez-Gaspar’s credibility ignores the law by

permitting the court to rewrite conclusive findings of the

administrative record through the power of presumption

rather than substantial evidence review.

Dissenting, Judge Paez wrote that country condition

evidence and Velasquez-Gaspar’s personal experiences

compel the conclusion that the Guatemalan government was

unable or unwilling to protect her from further abuse. Judge

Paez wrote that the majority’s reliance on Castro-Perez was

misplaced because there the court specifically noted that the

country report was “not particularly enlightening,” as it did

not include any information on the efficacy of Honduran law

enforcement. Judge Paez wrote that Velasquez-Gaspar

presented the concrete evidence that Castro-Perez did not,

including unrebutted evidence that the Guatemalan

government systematically fails to hold perpetrators of

gender-based violence accountable for their crimes. Judge

Paez also wrote that this court reviews the Board’s decision

based on its assumption that Velasquez-Gaspar was a

credible witness. Noting that the concurrence makes much

of the fact that the IJ found Velasquez-Gaspar not credible,

Judge Paez wrote that Velasquez-Gaspar’s credibility is not

properly before this court because, although Velasquez-

Gaspar challenged the IJ’s adverse credibility finding on

appeal, the Board did not address her argument, and instead

explicitly assumed that Velasquez-Gaspar testified credibly.

Judge Paez would grant the petition for review and remand

for further proceedings.

VELASQUEZ-GASPAR V. BARR 5

COUNSEL

Garish Sarin (argued), Law Offices of Garish Sarin, Los

Angeles, California, for Petitioner.

Rosanne Perry (argued) and Nelle M. Seymour, Trial

Attorneys; Claire L. Workman, Senior Litigation Counsel;

Joseph H. Hunt, Assistant Attorney General; Office of

Immigration Litigation, Civil Division, United States

Department of Justice, Washington, D.C., Washington,

D.C.; for Respondent.

OPINION

CALLAHAN, Circuit Judge:

Emilia Velasquez-Gaspar, a Guatemalan native and

citizen, petitions for review of the Board of Immigration

Appeals’ (BIA) dismissal of her appeal of an immigration

judge’s (IJ) denial of her applications for asylum,

withholding of removal, and protection under the

Convention Against Torture (CAT). We have jurisdiction

under 8 U.S.C. § 1252 and deny the petition.

I.

Velasquez-Gaspar unlawfully entered the United States

near Naco, Arizona, in 2010. Later that year the U.S.

Department of Homeland Security initiated removal

proceedings against her, charging that she was present in the

United States without being admitted or paroled. See

8 U.S.C. § 212(a)(6)(A)(i)(I). Velasquez-Gaspar conceded

her removability but applied for asylum, withholding of

removal, and CAT relief. As the basis for her applications,

she claimed that, if deported, she would face persecution and

6 VELASQUEZ-GASPAR V. BARR

torture at the hands of her abusive ex-boyfriend, Brian

Alexander Gonzales.

Velasquez-Gaspar testified at her removal hearing that

Gonzales had repeatedly beaten her and that, one night, he

and his friends had raped her. She recounted that when she

threatened to report Gonzales to the police, he stated that he

would kill her if she did so. She added that the police would

not have believed her in any event, considering that she was

an indigenous woman, and that the police were susceptible

to bribes. The Guatemalan government discriminated

against indigenous people, she explained, and lacked laws

addressing domestic violence.

Velasquez-Gaspar supplemented her testimony with

several articles and U.S. Department of State human rights

reports for Guatemala, which detailed the country’s handling

of domestic abuse, rape, and femicide. She also offered

written statements from a former employer and neighbor,

who were aware of her situation and had urged her to seek

help from the police. Fearing retaliation from Gonzales,

Velasquez-Gaspar declined this advice.

The IJ denied Velasquez-Gaspar relief on several

alternative grounds. She first found Velasquez-Gaspar

incredible based on inconsistencies in her testimony. She

next determined that Velasquez-Gaspar’s proposed social

group of “women unable to leave their relationships” was

not cognizable. And finally, she found that Velasquez-

Gaspar had not established the Guatemalan government’s

inability or unwillingness to protect her from Gonzales.

Velasquez-Gaspar appealed to the BIA, and a divided panel

dismissed her appeal. The panel assumed arguendo that she

was credible and did not address her proposed social group.

It agreed, however, with the IJ that Velasquez-Gaspar failed

to establish that governmental authorities would not or could

VELASQUEZ-GASPAR V. BARR 7

not have protected her. Velasquez-Gaspar timely petitioned

for our review of that narrow question.

II.

“We review only the BIA’s opinion, except to the extent

that it expressly adopted portions of the IJ’s decision.”

Rayamajhi v. Whitaker, 912 F.3d 1241, 1243 (9th Cir. 2019)

(citation omitted). We review the agency’s factual findings

under the “extremely deferential” substantial-evidence

standard, under which we treat such findings as “conclusive

unless any reasonable adjudicator would be compelled to

conclude to the contrary.” Farah v. Ashcroft, 348 F.3d 1153,

1156 (9th Cir. 2003) (quoting 8 U.S.C. § 1252(b)(4)(B)).

III.

An alien seeking asylum must demonstrate that she is

“unable or unwilling” to return to her home country

“because of a well-founded fear of persecution on account

of race, religion, nationality, membership in a particular

social group, or political opinion.” Bringas-Rodriguez,

850 F.3d 1051, 1062 (9th Cir. 2017) (quoting Navas v. INS,

217 F.3d 646, 654 (9th Cir. 2000)). Proving past persecution

can satisfy this burden, as it gives rise to a rebuttable

presumption of future persecution. Id. But to qualify an

alien for asylum, the persecution must have been

“committed by the government” or, as relevant here, “by

forces that the government was unable or unwilling to

control.” Id.; see also Rahimzadeh v. Holder, 613 F.3d 916,

920 (9th Cir. 2010).

We conclude that substantial evidence supports the

agency’s determination that, had Velasquez-Gaspar reported

8 VELASQUEZ-GASPAR V. BARR

her abuse, 1 the Guatemalan government could have

protected her from Gonzales. The State Department reports

show that Guatemala is working to curb violence against

women. For example, Guatemalan law criminalizes rape

and domestic abuse, and officials investigate and prosecute

cases under those laws. Granted, the conviction rates are

exceptionally low, and officers often face a lack of resources

and training, but we do not limit our analysis to whether the

government can “control the attackers”; we also look to

whether it can “protect the attacked.” Bringas-Rodriguez,

850 F.3d at 1066. On this point the reports convey that

justices of the peace issued restraining orders and ordered

police protection for abuse victims in an unspecified number

of cases. In addition, Guatemala has established programs,

offices, and shelters for female victims of physical and

sexual assault. One such shelter operates in Quetzaltenango,

where Velasquez-Gaspar lived. Thus, although the State

Department reports make clear that Guatemala still has a

long way to go in addressing domestic violence, the

country’s efforts, coupled with the pleas of Velasquez-

Gaspar’s acquaintances, suggest that she could have

obtained help. 2 As a result, we cannot say that the record

compels a finding contrary to the agency’s.

1

Because she did not report Gonzales’s abuse, Velasquez-Gaspar

needed to show that doing so would have been futile or dangerous.

Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1058 (9th Cir. 2006). And

“[w]hile private threats may explain an applicant’s reluctance to go to

the authorities, the question in an asylum case is whether the police could

and would provide protection.” Rahimzadeh, 613 F.3d at 923.

2

We note that, during her testimony, Velasquez-Gaspar could not

recall any particular instance of the police ignoring women or taking

bribes.

VELASQUEZ-GASPAR V. BARR 9

Indeed, we denied an analogous petition in Castro-Perez

v. Gonzales, 409 F.3d 1069 (9th Cir. 2005). There, the

petitioner credibly testified that she did not report being

raped because the police would not have protected her and

because she feared violent reprisal from her father. Id. at

1072. Looking to the State Department report for Honduras,

we acknowledged the country’s widespread domestic

violence “despite attempts to strengthen domestic abuse

law.” Id. We nonetheless held that a reasonable trier of fact

would not be “compelled to find that the Honduran

government must bear some responsibility” for the abuse.

Id. In the end, the country-report evidence “did not

conclusively show that the Honduran government would

have ignored the report of rape.” Bringas-Rodriguez,

850 F.3d at 1066 n.9 (discussing Castro-Perez).

As in Castro-Perez, the evidence here falls short of

compelling the conclusion that Guatemalan authorities

would have been unable or unwilling to help Velasquez-

Gaspar. 3 See Lianhua Jiang v. Holder, 754 F.3d 733, 738

(9th Cir. 2014) (“[T]he petitioner must establish that the

evidence not only supports that conclusion, but compels it.”

(quotation marks and citation omitted)). Accordingly, she

has failed to demonstrate her eligibility for asylum. And

because withholding of removal also turns on this factor,

substantial evidence likewise supports the agency’s denial of

that claim. Castro-Perez, 409 F.3d at 1072. Finally,

Velasquez-Gaspar waived any argument as to her CAT

claim by failing to “specifically and distinctly” discuss the

matter in her opening brief. See id. (quoting Arpin v. Santa

Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir.

3

Considering that substantial evidence supports the agency’s

findings even crediting Velasquez-Gaspar’s testimony, we need not

consider the IJ’s adverse credibility finding.

10 VELASQUEZ-GASPAR V. BARR

2001)); Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079–80

(9th Cir. 2013). Such an argument would have failed in any

event, as she has not shown a likelihood of torture by or with

the acquiescence of public officials. See Bromfield v.

Mukasey, 543 F.3d 1071, 1079 (9th Cir. 2008). We therefore

deny her petition.

PETITION DENIED.

VANDYKE, Circuit Judge, concurring:

I join Judge Callahan’s opinion in full. Given the

considerable deference this court owes to the BIA’s

weighing of the evidence, the evidence here certainly does

not “compel[]” reversal. I.N.S. v. Elias-Zacarias, 502 U.S.

478, 481 n.1 (1992) (“To reverse the BIA finding we must

find that the evidence not only supports that conclusion, but

compels it . . . .”); 8 U.S.C. § 1252(b)(4). Looking to the

2014 Country Report, the BIA identified Guatemalan

progress in protecting domestic violence victims. 1 The BIA

also weighed the uncontested relevant, but non-dispositive,

fact that Petitioner never sought police assistance. Citing to

and affirming the Immigration Judge’s findings on both

counts, the BIA reasonably concluded that Petitioner failed

to carry her burden of proof.

Notwithstanding slower-than-preferred progress in the

2014 Country Report, the BIA’s conclusion is clearly

supported by “reasonable, substantial, and probative

1

Importantly, neither the IJ nor the BIA ignored Guatemala’s

lingering problems in preventing and punishing domestic violence, but

rather weighed those difficulties against the Report’s indications of

improvement.

VELASQUEZ-GASPAR V. BARR 11

evidence on the record considered as a whole.” Elias-

Zacarias, 502 U.S. at 481. The BIA and IJ properly weighed

the mixed evidence within the Country Reports, and the

court should not second-guess that appraisal unless the

evidence compels it. Aden v. Holder, 589 F.3d 1040, 1046

(9th Cir. 2009) (“Our standard of review, though, does not

enable us to substitute our judgment . . . for the BIA’s” when

it comes to reasonably weighing the persuasiveness of

administrative record evidence.). “We have repeatedly

recognized that the IJ and the BIA are entitled to rely on

country reports that contain mixed messages, ambiguities, or

inconsistencies.” Singh v. Holder, 753 F.3d 826, 831 (9th

Cir. 2014) (“[S]low and uneven progress in prosecuting

those responsible for past persecution is troubling. But it

does not mean that the Board’s decision is not supported by

substantial evidence.”). It is of course true, as the dissent

notes, that “deference does not mean blindness.” Li v.

Ashcroft, 356 F.3d 1153, 1158 (9th Cir. 2004) (en banc). But

deference does mean deference, and Li’s truism cannot

empower this court to substitute its judgment for that of the

BIA’s. Deference only counts when judges uphold a

decision they disagree with. And agree with it or not,

Castro-Perez v. Gonzales, 409 F.3d 1069 (9th Cir. 2005), is

directly applicable and controls this case.

I write separately to respond to the dissent. It argues that

Castro-Perez “provides little guidance” in deciding this

case, but ultimately offers only one basis to distinguish it. 2

2

The dissent suggests that both Velasquez-Gaspar’s testimony and

the 2014 Country Report distinguish this case from Castro-Perez. But

there is no meaningful difference between the Country Report in Castro-

Perez and the one the BIA considered here. Castro-Perez v. Gonzales,

409 F.3d at 1072 (“[D]omestic violence is widespread despite attempts

to strengthen domestic abuse law.”) (discussing U.S Dep’t of State’s

Country Reports on Human Rights Practices for 2000, Honduras (“2000

12 VELASQUEZ-GASPAR V. BARR

The dissent relies extensively on Velasquez-Gaspar’s own

testimony as supplying “concrete evidence that Castro-Perez

did not.” Only by pointing to Velasquez-Gaspar’s testimony

can the dissent attempt to distinguish Castro-Perez to

conclude that “the Guatemalan government was unable to

protect Velasquez-Gaspar . . . .”

But the Immigration Judge in this case expressly found

that Velasquez-Gaspar was “not a credible witness.” The

BIA never rejected that factual finding nor concluded it was

clearly erroneous. Therefore, the IJ’s adverse credibility

finding is part of the “record evidence” that the dissent

insists “compels” a different conclusion than that reached in

Castro-Perez. The dissent never explains how non-credible

testimony can do that. Nor does it attempt to show that the

IJ’s credibility determination was clearly erroneous. Rather,

it simply treats Velasquez-Gaspar’s testimony as wholly

credible, literally ignoring the fact-finder’s contrary

conclusion.

I think that is wrong—obviously as a matter of statutory

law and the Supreme Court’s caselaw; perhaps less

obviously as a matter of our circuit’s confused statements.

So I write to clarify what the law requires of this court when

Honduras Report”)). Both Reports reveal government efforts and de jure

reforms intended to protect women from violence. And both reveal that

public funding, training, and other factors have metered progress toward

that goal and failed to remediate the problem as quickly as desired. See

2000 Honduras Report (“In March the Public Ministry reported that it

receives an average of 200 allegations of domestic violence each month,

but that many cases remain pending because the Government has not yet

created the special courts authorized by the Law Against Domestic

Violence.”). The two Reports paint very similar pictures, so ultimately

the dissent is left with just Velasquez-Gaspar’s testimony.

VELASQUEZ-GASPAR V. BARR 13

reviewing an administrative record containing an IJ’s

unrebutted adverse credibility finding.

The REAL ID Act significantly altered testimonial

credibility standards in immigration cases. See generally

Shrestha v. Holder, 590 F.3d 1034, 1039–45 (9th Cir. 2010).

One example is the language in 8 U.S.C.

§ 1158(b)(1)(B)(iii): “There is no presumption of credibility,

however, if no adverse credibility determination is explicitly

made, the applicant or witness shall have a rebuttable

presumption of credibility on appeal.” As Dai v. Sessions

points out, the BIA—and not the Court of Appeals—hears

an alien’s appeal from an adverse ruling by an Immigration

Judge. 884 F.3d 858, 868–69 (2018). So if the IJ makes no

adverse credibility determination, the BIA presumes the

testimony is credible; or the BIA can make its own adverse

credibility determination if it concludes the “totality of the

circumstances” rebut the presumption. 8 U.S.C.

§ 1158(b)(1)(B)(iii). That’s simple enough.

The question is, what do we do when the IJ makes an

explicit adverse credibility determination, but the BIA

affirms the IJ’s conclusion without directly addressing the

IJ’s adverse credibility determination? In other words, what

do we do in a case like this?

I think the rule is straightforward and apparent in our

“substantial evidence” standard of review. Our review of the

agency’s findings is “extremely deferential.” Farah v.

Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003) (citing

8 U.S.C. § 1252(b)(4)(B)). Indeed, “[t]he BIA’s

determination [that an alien is ineligible for asylum] must be

upheld if supported by reasonable, substantial, and probative

evidence on the record considered as a whole.” Elias-

Zacarias, 502 U.S. at 481 (internal quotation marks omitted

& emphasis added). Because we are reviewing an

14 VELASQUEZ-GASPAR V. BARR

administrative decision—and not a district court decision—

“we must decide whether to grant or deny the petition for

review based on the Board’s or IJ’s reasoning rather than our

own independent analysis of the record.” Ali v. Holder,

637 F.3d 1025, 1029 (9th Cir. 2011) (alteration marks and

internal quotation marks omitted) (quoting Azanor v.

Ashcroft, 364 F.3d 1013, 1021 (9th Cir. 2004)).

“That does not mean, however, that our review may

consider only evidence expressly identified in the BIA’s

decision.” Ramirez-Villalpando v. Holder, 645 F.3d 1035,

1039 (9th Cir. 2011). Rather, while our review is limited

“only [to] the administrative record,” 8 U.S.C.

§ 1252(b)(4)(A), and “we consider only the grounds relied

upon by” the BIA, Andia v. Ashcroft, 359 F.3d 1181, 1184

(9th Cir. 2004) (per curiam), we must determine whether the

record evidence “considered as a whole”—as the BIA

encountered it—“compels” us to reverse the BIA’s decision.

Elias-Zacarias, 502 U.S. at 481 & n.1; Melkonian v.

Ashcroft, 320 F.3d 1061, 1065 (9th Cir. 2003). Properly

understood, our role is to review the basis for the BIA’s

decision by meeting all the relevant evidence as the BIA

found it and then decide whether a “reasonable BIA” would

be “compelled” to reach a different conclusion.

Under our case law then, “grounds” and “evidence” are

two different things. 3 Accordingly, we may affirm the BIA

3

The dissent simply ignores this legal and logical distinction,

arguing that, like the BIA, we “must assume that Velasquez-Gaspar

testified credibly” because we “‘cannot affirm the BIA on a ground on

which [the BIA] did not rely.’” (Emphasis added and citation omitted.)

But the latter has nothing to do with the former. Concluding that

Velasquez-Gaspar’s noncredible testimony does not undermine the

BIA’s stated ground of its decision is hardly upholding the BIA’s

decision on a different ground. It is classic substantial evidence review,

VELASQUEZ-GASPAR V. BARR 15

on its decisional grounds by looking to the entirety of the

evidence—including record evidence it may not have

expressly relied on. Ramirez-Villalpando, 645 F.3d at 1039.

This principle has a logical inverse corollary: we may not

reverse the BIA by ignoring or recasting the evidence that

was before it.

When the BIA affirms an IJ’s denial of relief but does

not explicitly address the IJ’s adverse credibility finding, the

BIA is not tacitly reversing that finding; on the contrary, it

remains a “conclusive” finding in the administrative record.

8 U.S.C. § 1252(b)(4)(B); 8 C.F.R. § 1003.1(d)(3)(i). That

same BIA could affirm the IJ’s conclusion that an alien

failed to meet her evidentiary burdens while “[a]ssuming

arguendo that the [alien] testified credibly.” But it defies

logic (and the governing statute and regulation) to assume

that this banal method of appellate decision-making is

tantamount to the BIA’s repudiation of the IJ’s explicit

adverse credibility finding or constitutes a positive

credibility finding. In other words, the evidentiary record

remains just where the IJ left it, regardless of whether the

BIA relies upon each and every IJ fact finding to reach its

conclusion. 4

Momentarily setting aside the credibility issue that has

bedeviled our immigration jurisprudence, an illustration

proves the point. Assume, for example, that an IJ properly

where our court reviews the entire evidentiary record—including the IJ’s

adverse credibility finding—and determines whether that entire

evidentiary record compels the conclusion that the BIA’s ground of

decision was wrong.

4

The BIA may only repudiate the IJ’s findings if clearly erroneous.

8 C.F.R. § 1003.1(d)(3)(i). It follows that we may not interpret the BIA’s

silence as a reversal of the IJ’s findings.

16 VELASQUEZ-GASPAR V. BARR

makes five findings and relies upon them all in denying an

asylum request on a single ground. On appeal, assume the

BIA affirms on the same ground as the IJ, but only relies

upon two of the five findings without discussing the other

three. While this court must limit its review to the ground

of the BIA’s decision, it is not required to consider only the

two evidentiary findings that the BIA considered. Nor can

this court on review simply assume the BIA reversed those

three unaddressed findings. Certainly, this court on review

cannot construe the facts to be diametrically opposite of the

IJ’s undisturbed findings. To the contrary, this court is

statutorily obligated to consider all five conclusive findings,

together with the rest of the “administrative record,” to

determine whether “the evidence . . . considered as a whole

. . . . compels” the conclusion that the BIA’s ground of

decision was wrong. Elias-Zacarias, 502 U.S. at 481 & n.1

(emphasis in original); 8 U.S.C. § 1252(b)(4)(A)–(B).

Practically then, if the court concludes that the two findings

relied upon are themselves insufficient to support the BIA’s

conclusion, this court must still uphold the BIA’s decision if

the other three findings support the BIA’s decision by

“substantial evidence.”

This straightforward method of review does not

somehow mystically change just because part of the

evidence before the BIA is the IJ’s adverse credibility

finding. The dissent argues—with nary a single citation in

support—that “the IJ’s credibility determination is not itself

record evidence.” It is a factual finding that is part of the

evidentiary record before the BIA and us. 5 “The same

5

The dissent’s attempt to paint an IJ’s credibility determination as

something that we can just ignore in our substantial evidence review (but

only, of course, if the IJ made an adverse credibility finding) is

particularly odd since the dissent acknowledges, literally one sentence

VELASQUEZ-GASPAR V. BARR 17

standard applies to the IJ’s credibility findings” as to the IJ’s

other factual findings. Farah, 348 F.3d at 1156; 8 C.F.R.

§ 1003.1(d)(3)(i) (“Facts determined by the immigration

judge, including findings as to the credibility of testimony,

shall be reviewed only to determine whether . . . clearly

erroneous.”) (emphasis added).

Accordingly, where the BIA has not expressly reversed

the IJ’s explicit adverse credibility finding, we, who

encounter the evidence just as the BIA did, must consider

that finding as a fixed feature of the record. 8 U.S.C.

§ 1252(b)(1)(4)(A). 6 In determining whether “the evidence

on the record considered as a whole . . . . compels” a

different conclusion than that reached by the BIA, we cannot

ignore the part of that evidence that included the fact-

finder’s adverse credibility finding. Elias-Zacarias,

502 U.S. at 481 & n.1 (emphasis in original). To conclude

otherwise is to ignore the Supreme Court’s and Congress’s

clear admonition to accept the BIA’s conclusion unless all

of the evidence before the BIA—including credibility

findings—“compels” a different conclusion than the BIA.

Id.; 8 U.S.C. § 1252(b)(4). Ignoring the fact-finder’s

adverse credibility finding attributes an energetic potency to

the BIA’s silence that finds no basis in the statutory text,

forces this court to blink reality by counter-factually

rearranging the deck chairs of the evidentiary record, and

later, that the BIA must review the IJ’s credibility findings for clear

error—just as the BIA does with all factual findings by the IJ.

6

Of course, just like any other factual finding, we are not barred

from reversing an adverse credibility finding if it is unsupported by

substantial evidence. See Shrestha, 590 F.3d at 1042; see also Zhiqiang

Hu v. Holder, 652 F.3d 1011, 1016 n.4 (9th Cir. 2011). But we must

actually determine that it isn’t supported by substantial evidence. We

don’t get to just pretend the adverse credibility finding doesn’t exist.

18 VELASQUEZ-GASPAR V. BARR

jettisons the deference we owe the fact-finder under the

REAL ID Act. 8 U.S.C. § 1252(b)(1)(4)(B) (“the

administrative findings of fact are conclusive unless any

reasonable adjudicator would be compelled to conclude to

the contrary”).

This method of review is not inconsistent with the

“distinct rule” this court relied on in Dai “that in the absence

of an adverse credibility finding by either the IJ or the BIA,

we are required to treat the petitioner’s testimony as

credible.” 884 F.3d at 869 n.8. There, this court credited the

alien’s testimony “[b]ecause neither the IJ nor the BIA made

an adverse credibility determination . . . .” Id. at 870

(emphasis added); 7 see also Ornelas-Chavez v. Gonzales,

458 F.3d 1052, 1054 n.2 (9th Cir. 2006) (same); Zheng v.

Ashcroft, 332 F.3d 1186, 1189 n.4 (9th Cir. 2003) (same).

Of course, that is a very different situation than the one

presented in this case, where the IJ did clearly make an

adverse credibility finding supported by a lengthy analysis,

and the BIA never rejected that finding as “clearly

erroneous.” In a case like Dai, there is no adverse credibility

finding in the record that this court must consider when

deciding whether the whole record “compels” reversal of the

BIA. Elias-Zacarias, 502 U.S. at 481 & n.1. 8

7

Dai’s unsupported stray remark that “when the BIA has on appeal

[not] affirmed an adverse credibility finding made by the IJ . . . we may

not deny the petition for review based on lack of credibility,” 884 F.3d

at 869, is dictum divorced from that case’s facts and disposition. In Dai,

“the IJ did not make an adverse credibility finding.” Id. at 865.

8

Indeed, this court in Dai acknowledged that “the IJ’s decision not

to make an explicit adverse credibility finding means that there is no

finding to which we can defer.” 884 F.3d at 868 (citations, alteration

marks, and internal quotation marks omitted).

VELASQUEZ-GASPAR V. BARR 19

But in a case like this, there is. This court is ill-suited to

make credibility findings in the first instance—adverse or

otherwise. Shrestha, 590 F.3d at 1041 (the deference

required by the REAL ID Act “makes sense because IJs are

in the best position to assess demeanor and other credibility

cues that we cannot access on review”). And where such

findings are part of the record, we cannot presume to ignore

or reverse them while pretending to properly review the

“record . . . as a whole.” Elias-Zacarias, 502 U.S. at 481.

Beyond cases like Dai where the fact-finder made no

adverse credibility finding, I am aware of two post-REAL

ID Act cases from this court that ostensibly suggest we take

a remarkable evidentiary tack: that we tacitly reverse an IJ’s

adverse credibility finding when reviewing the record as a

whole, unless the BIA has explicitly adopted that finding.

See Zhiqiang Hu v. Holder, 652 F.3d 1011 (9th Cir. 2011);

Singh v. Holder, 753 F.3d 826 (9th Cir. 2014). This

suggestion runs directly counter to the REAL ID Act, itself;

moreover, the statement in both cases was unnecessary and

non-binding.

In Hu, the court determined “the IJ’s adverse credibility

finding is not supported by substantial evidence.” 652 F.3d

at 1016 n.4. A fact-finder’s adverse credibility finding

unsupported by substantial evidence is reversable error, and

thus cannot properly be relied on by this court as part of the

evidentiary record “as a whole,” regardless of what the BIA

did with it. Therefore, Hu’s statement—that “[t]he BIA’s

decision is silent on the issue of credibility, despite the IJ’s

explicit adverse credibility finding, so we may assume that

the BIA found Hu to be credible”—is, in addition to being

an obvious logical fallacy, pure dictum. That statement

made no difference to the case’s disposition. 652 F.3d at

1016. To support this dictum, Hu cites a pre-REAL ID Act

20 VELASQUEZ-GASPAR V. BARR

case, Krotova v. Gonzales, 416 F.3d 1080, 1084 (9th Cir.

2005). Krotova says that “[w]hen the BIA’s decision is

silent on the issue of credibility, despite an IJ’s explicit

adverse credibility finding, we may presume that the BIA

found the petitioner to be credible.” Id. But just like in Hu,

Krotova’s statement too is dictum; in its very next sentence,

Krotova declared: “the IJ’s adverse credibility finding is not

supported by substantial evidence.” Id. 9

Singh similarly recited the Krotova dictum but did not

rely upon it. 753 F.3d at 828, 835. Like Hu and the present

case, the IJ in Singh determined the alien’s testimony was

not credible, and the BIA did not expressly adopt that

finding. Id. at 828. Yet both the IJ and the BIA weighed the

alien’s testimony against other record evidence and denied

relief. Id. at 830, 83–37. On one hand, the panel in Singh

purportedly credited the testimony (pursuant to Krotova),

but on the other, affirmed the BIA’s and IJ’s decision to

weigh and discount that testimony, which was contradicted

by compelling record evidence. Id. at 835–36. Ultimately,

Singh merely reaffirmed the agency’s right to weigh

conflicting evidence. Id. at 837. According to the court, the

IJ weighed the very testimony it found non-credible and

reached a conclusion supported by substantial evidence. Id.

at 835. Like the other cases that purport to embrace the

Krotova dictum, it made no difference to Singh’s outcome.

Id. at 837.

9

It is also worth emphasizing that Krotova is a pre-REAL ID Act

case. And the earlier cases Krotova cites for its dictum do not,

themselves, support it. 416 F.3d at 1084 (citing Maldonado-Cruz v.

I.N.S., 883 F.2d 788, 789 (9th Cir. 1989) (neither the IJ nor the BIA made

an adverse credibility finding) and Damaize-Job v. I.N.S., 787 F.2d 1332,

1337 (9th Cir. 1986) (finding the IJ’s adverse credibility finding

unsupported by substantial evidence).

VELASQUEZ-GASPAR V. BARR 21

Admittedly, that is a lot of unnecessary recitation of

dicta. One might suppose that if dicta is repeated enough,

even as dicta, it eventually becomes law. But that isn’t the

rule. See In re Magnacom Wireless, LLC, 503 F.3d 984,

993–94 (9th Cir. 2007) (“In our circuit, statements made in

passing, without analysis, are not binding precedent.”); see

also Estate of Magnin v. C.I.R., 184 F.3d 1074, 1077 (9th

Cir. 1999) (“When a case assumes a point without

discussion, the case does not bind future panels.”).

That is a good thing—at least in this case—because the

Krotova dictum, if it ever had merit, clearly has none in the

post-REAL ID Act world. “[D]icta distilled from dicta,”

Poventud v. City of New York, 715 F.3d 57 (2d Cir. 2013)

(Jacobs, C.J., dissenting), even copiously imbibed, remains

too low-proof a spirit to wheedle our court into ignoring

clear statutory and Supreme Court directives.

I’ve already noted how such a rule would not be

consistent with 8 U.S.C. § 1252(b)(4) and the Supreme

Court’s clear command that we must not reverse the BIA

unless the evidentiary record “considered as a whole . . .

compels it.” Elias-Zacarias, 502 U.S. at 481 & n.1.

Moreover, it is obvious that actual application of the Krotova

dictum in a case where it mattered would undermine either

the BIA’s proper role on appeal or ours on review, or both.

The BIA’s “Scope of Review” regulations bear this out:

The Board will not engage in de novo review

of findings of fact determined by an

immigration judge. Facts determined by the

immigration judge, including findings as to

the credibility of testimony, shall be reviewed

only to determine whether the findings of the

immigration judge are clearly erroneous.

22 VELASQUEZ-GASPAR V. BARR

8 C.F.R. § 1003.1(d)(3)(i) (emphasis added). In this case,

the BIA inherited the IJ’s explicit adverse credibility finding,

and never found it “clearly erroneous.” That adverse

credibility finding thus remains part of the record, even

though the BIA ruled in reliance on evidence that did not

hinge upon the non-credibility of the petitioner’s testimony.

Likewise, that finding remains part of the record this court

inherits on review. “[T]he court of appeals shall decide the

petition only on the administrative record on which the order

of removal is based, [and] the administrative findings of fact

are conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary.” 8 U.S.C.

§ 1252(b)(1)(4)(A)–(B).

It follows that when this court sua sponte “assumes” or

“presumes” the truthfulness of testimony the IJ has explicitly

found non-credible (which the BIA has not found “clearly

erroneous”), we flagrantly disregard 8 U.S.C. § 1252 and

8 C.F.R. § 1003.1. That is precisely what the dissent has

done here. Velasquez-Gaspar’s testimony, according to the

dissent, is the dispositive factor that pushes her petition over

the evidentiary hurdle and distinguishes this case from

Castro-Perez. 10 But we may not revive and credit non-

credible testimony by presumptive fiat.

The dissent’s willingness to do so here ignores the law

by permitting the court to rewrite conclusive findings of the

administrative record through the power of presumption

rather than substantial evidence review. But the only

presumption we may legitimately draw here is that the law

means what it says. This court does not deem testimony

credible, for that would be doing what even the BIA may

10

It is notable that in Castro-Perez, “the IJ expressly determine[d]

the petitioner [wa]s credible.” 409 F.3d at 1071.

VELASQUEZ-GASPAR V. BARR 23

not: “engag[ing] in de novo review of findings of fact.”

8 C.F.R. § 1003.1(d)(3)(i). Rather, the court reviews the

BIA’s decision in the context of the entire record as the BIA

received it, adverse credibility findings and all.

PAEZ, Circuit Judge, dissenting:

Although our standard of review is deferential, as the

majority states, “deference does not mean blindness.” Li v.

Ashcroft, 356 F.3d 1153, 1158 (9th Cir. 2004) (en banc).

Velasquez-Gaspar presented unrebutted evidence that the

Guatemalan government systematically fails to hold

perpetrators of gender-based violence accountable for their

crimes. Because this evidence and her personal experiences

compel the conclusion that the Guatemalan government was

unable or unwilling to protect her from further abuse, I

would grant the petition for review and remand for further

proceedings.

The agency relied principally on the 2014 State

Department Country Report (“2014 Report”) to find that the

Guatemalan government is able and willing to protect

victims of domestic violence. The 2014 Report found that

Guatemalan law authorizes prison sentences for perpetrators

of gender-based violence and that the government secured a

number of convictions under those statutes.

In principle, Guatemalan law criminalizes rape and

domestic violence. In practice, it does not. Contrary to the

agency’s interpretation of the 2014 Report, the State

Department was clear on this point: it noted that police have

“minimal training or capacity to investigate sexual crimes or

assist survivors of such crimes, and the government did not

enforce the law effectively.” This systemic failure has

24 VELASQUEZ-GASPAR V. BARR

created an environment in which victims “frequently d[o]

not report crimes due to lack of confidence in the justice

system, social stigma, and fear of reprisal.”

The agency, in my view, mischaracterized the contents

of the 2014 Report. Specifically, as evidence that “the

Guatemalan government does investigate and prosecute

domestic violence crimes,” the IJ noted that the government

had secured “976 convictions in cases of intrafamily

violence against women and children as of the end of

September [of 2014].”

The IJ failed to note, however, that the 2014 Report also

indicated that the government received 48,132 official

reports of these crimes over the same time period. Assuming

that each survivor of domestic violence reported their abuser

to the police, these statistics indicate that ninety-eight

percent of abusers faced no consequences for their crimes,

even when their victims went to the police for help. The IJ

likewise observed that the Guatemalan government

successfully prosecuted 304 sexual assault cases. But again,

the IJ failed to include context for this number: during the

same period of analysis, the government received 8,871

reports of these crimes, indicating that over ninety-six

percent of reported sexual assaults went unpunished. The

same page of the 2014 Report detailing these statistics also

notes that homicides of women resulted in convictions “1 to

2 percent” of the time.

Ultimately, this evidence compels the conclusion that the

Guatemalan government is utterly unable to protect the

overwhelming majority of women from men like Gonzalez.

To be sure, the BIA also noted that the Guatemalan

government has created specialized law-enforcement units

and programs to address the violence against women. But

these efforts suggest only that the Guatemalan government

VELASQUEZ-GASPAR V. BARR 25

is willing to address these crimes. The hard evidence

compels the conclusion that it is unable to do so.

The majority’s reliance on Castro-Perez v. Gonzales is

misplaced. 409 F.3d 1069 (9th Cir. 2005). In Castro-Perez,

the applicant—a survivor of rape at the hands of her

boyfriend—testified that she did not report the attack to the

Honduran police because she did not think they would do

anything to help her. Id. at 1072. She further feared that her

father would beat her if she reported her boyfriend to the

police. Id. We held that the BIA did not err in finding that

the petitioner failed to meet the unable-or-unwilling element

of proving past persecution. Id.

In so holding, we specifically noted that the country

report in that case was “not particularly enlightening.” Id.

Indeed, the report did not include any information on the

efficacy of Honduran law enforcement; it merely noted that

Honduran law criminalized rape. Id. Because the report did

not suggest that the Honduran government failed to enforce

the law, Castro-Perez could not meet her burden of proof.

Id.

Velasquez-Gaspar presented the concrete evidence that

Castro-Perez did not. In contrast to the Honduran Country

Report in Castro-Perez, the 2014 Report for Guatemala

establishes that the government fails to protect women like

Velasquez-Gaspar. And Velasquez-Gaspar supplemented

this evidence with her own testimony (assumed credible by

the BIA) about her abuse and why she did not report it to the

police—she feared specific, targeted threats of reprisal from

her abuser. Velasquez-Gaspar further testified that she

believed the police would likely be of little help given their

susceptibility to bribes and their prejudice against

indigenous people like herself. For these reasons, Castro-

Perez provides little guidance.

26 VELASQUEZ-GASPAR V. BARR

Bringas-Rodriguez v. Sessions instead controls.

850 F.3d 1051, 1072 (9th Cir. 2017) (en banc). In that case,

we made clear that Castro-Perez did not establish a bright-

line rule applicable to all or even most survivors of rape at

the hands of an intimate partner. 850 F.3d at 1066 n.9. We

explained that because Castro-Perez did not offer any

concrete evidence that the Honduran government failed to

enforce its rape laws, her “reasons for not reporting . . .

[were] insufficient to establish governmental inability or

unwillingness to protect her.” Id. (citing Ornelas-Chavez v.

Gonzalez, 458 F.3d 1052, 1057–58 (9th Cir. 2006)).

Bringas-Rodriguez stands for the principle that on-the-

ground conditions—not official policies or programs—are

what matter. Id. at 1072 (declining to afford weight to

Mexico’s “laud[able] . . . efforts” to protect gay and lesbian

people because “it is well recognized that a country’s laws

are not always reflective of actual country conditions”). The

BIA thus erred when it “falsely equated legislative and

executive enactments prohibiting persecution with on-the-

ground progress.” Id. at 1075. Just so here. 1

The concurrence makes much of the fact that the IJ found

Velasquez-Gaspar not credible. But her credibility is not

properly before us. When the BIA issues its own decision

instead of simply adopting the IJ’s decision, “our review ‘is

limited to the BIA's decision, except to the extent the IJ's

opinion is expressly adopted.’” Hosseini v. Gonzales,

1

The concurrence misunderstands my position on Castro-Perez.

According to the concurrence, I treat Velasquez-Gaspar’s testimony as

“the dispositive factor that pushes her petition over the evidentiary

hurdle and distinguishes this case from Castro-Perez.” Concurrence 22

(emphasis in original). That characterization is plainly wrong.

Velasquez-Gaspar’s testimony alone does not differentiate her case from

Castro-Perez. Rather, it is the 2014 Report’s statistical evidence on

Guatemalan law enforcement that does so.

VELASQUEZ-GASPAR V. BARR 27

471 F.3d 953, 957 (9th Cir. 2006) (quoting Cordon-Garcia

v. INS, 204 F.3d 985, 990 (9th Cir. 2000)). We “cannot

affirm the BIA on a ground upon which it did not rely.”

Arrey v. Barr, 916 F.3d 1149, 1157 (9th Cir. 2019) (quoting

Navas v. I.N.S., 217 F.3d 646, 658 n.16 (9th Cir. 2000)).

Although Velasquez-Gaspar challenged the IJ’s adverse

credibility finding on appeal, the BIA did not address her

argument. Instead, the BIA explicitly assumed that

Velasquez-Gaspar testified credibly. Accordingly, we

review the BIA’s decision based on its assumption that

Velasquez-Gaspar was a credible witness.

The concurrence errs in classifying the IJ’s credibility

finding as part of the “evidentiary record before the BIA”

which we must consider in deciding the petition for review.

Concurrence 16. But the IJ’s credibility determination is not

itself record evidence. Rather, it reflects the weight the IJ

ascribed to certain record evidence—Velasquez-Gaspar’s

testimony. And it is subject to clear-error review by the BIA.

Ridore v. Holder, 696 F.3d 907, 911 (9th Cir. 2012);

8 C.F.R. § 1003.1(d)(3)(i).

In my view, the record evidence as a whole compels the

conclusion that the Guatemalan government was unable to

protect Velasquez-Gaspar from Gonzalez. Parada v.

Sessions, 902 F.3d 901, 908–09 (9th Cir. 2018) (quoting

Afriyie v. Holder, 613 F.3d 924, 931 (9th Cir. 2010)). The

evidence relied upon by the agency in concluding otherwise,

when fully considered, actually shows that almost all

perpetrators of gender-based violence in Guatemala carry

out their crimes undisturbed by law enforcement, even when

their victims reach out for help. Accordingly, substantial

evidence does not support the BIA’s decision dismissing

Velasquez-Gaspar’s appeal. I respectfully dissent.