                                                                              FILED
                            NOT FOR PUBLICATION
                                                                               JUN 18 2018
                    UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


KENY YAJAIRA ALVAREZ-MOLINA,                     No.   15-73134
AKA Keny Alvarez-Molina,
                                                 Agency No. A200-881-871
              Petitioner,

 v.                                              MEMORANDUM*

JEFFERSON B. SESSIONS III, Attorney
General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                        Argued and Submitted June 4, 2018
                               Seattle, Washington

Before: BYBEE and N.R. SMITH, Circuit Judges, and ANTOON,** District
Judge.

      Keny Yajaira Alvarez-Molina (“Alvarez”), native and citizen of El Salvador,

petitions for review of a decision of the Board of Immigration Appeals (“BIA”),


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable John Antoon II, United States District Judge for the
Middle District of Florida, sitting by designation.
which affirmed an immigration judge’s (“IJ”) denial of her applications for

withholding of removal and protection under the Convention Against Torture

(“CAT”). We have jurisdiction under 8 U.S.C. § 1252.

1.    The BIA did not abuse its discretion when it concluded that Alvarez’s

conviction for robbery under Indiana Code § 35-42-5-1 was a particularly serious

crime barring her from relief from withholding of removal. See Arbid v. Holder,

700 F.3d 379, 383 (9th Cir. 2012). The BIA considered Alvarez’s age when she

committed the offense and her role in the crime. After reviewing the

circumstances of the crime, the BIA determined that, despite her young age at the

time, she was a danger to the community. Nothing in the record suggests that the

BIA’s decision was “illogical, implausible, or without support in inferences that

may be drawn from the record.” United States v. Hinkson, 585 F.3d 1247, 1262

(9th Cir. 2009) (en banc).

2.    Because we are unable to determine whether the BIA properly analyzed

whether the government officials in Ahuachapán, El Salvador would acquiesce in

acts of torture against Alvarez, we remand to the BIA to reconsider this issue. Our

problem: Alverez presented credible testimony that, on one occasion, the police

arrived at the scene when MS-13 members were beating her and her cousin.

Instead of intervening in the altercation, the police waited until the perpetrators had


                                           2
gone, and then threatened Alvarez and her cousin with further harm if they did not

leave.1 Alvarez truthfully testified that the police did not respond to her and her

cousin, because the police thought they were gang members. Alvarez’s testimony

was also supported by (a) Alvarez’s expert’s testimony that “[t]he police are

hesitant and sometimes not at all willing to intervene in any gang related activities

and they would be most hesitant and least likely to intervene to protect a gang

member” and the police are “only too happy to see gang members disposed of or

eliminated”; and (b) the country reports that indicated that El Salvador “struggles

with police and official corruption and ties to gangs and criminal activity” and “the

police will murder suspected gang members with impunity.” After reviewing this

evidence, the BIA merely described the actions of the police as rude and

unfortunate, and concluded there was no evidence that “the police would turn a

blind eye to torturous conduct.” Then to buttress this conclusion, the BIA cited

generally to the efforts of the Salvadoran government to combat gangs, gang

violence, and corruption in the police force. The BIA never specifically addressed

whether “public officials at the state and local level in [El Salvador] would

acquiesce in any torture [Alvarez] is likely to suffer.” Madrigal v. Holder, 716


      1
        “Acts constituting torture under CAT are varied, and include beatings and
killings.” Cole v. Holder, 659 F.3d 762, 771 (9th Cir. 2011) (quotation marks
omitted) (quoting Bromfield v. Mukasey, 543 F.3d 1071, 1079 (9th Cir. 2008)).
                                          3
F.3d 499, 510 (9th Cir. 2013). Thus, the BIA’s decision appears to misconstrue the

facts and misapply our precedent.

      Although the BIA cited to Madrigal, the BIA “failed to state with sufficient

particularity and clarity the reasons” that local police would not acquiesce in acts

of torture (in light of their failure to intervene), and “so does not provide an

adequate basis for this court to conduct its review.”2 Id. at 509 (quotation marks

and citation omitted). As we noted in Madrigal, to determine whether the local

government is unwilling or unable to prevent acts of torture, the BIA must

“examin[e] the efficacy of the government’s efforts to stop the [gang] violence,”

which is “affected by the degree of corruption that exists in [El Salvador’s]

government.” Id. The BIA’s decision does not explain how the Salvadoran

government’s efforts would affect (if at all) the local officers’ actions here.




      2
         The government argues and the BIA’s opinion suggests that there was an
inability to track down the perpetrators. Therefore, there was no evidence of
acquiescence. See Garcia-Milian v. Holder, 755 F.3d 1026, 1034 (9th Cir. 2014)
(“Evidence that the police were aware of a particular crime, but failed to bring the
perpetrators to justice, is not in itself sufficient to establish acquiescence in the
crime.”). Although the police may have been provided insufficient evidence with
regard to the first beating, the second beating was different. Regarding the second
incident, the credible evidence presented established that the police were present,
failed to intervene to prevent or stop the attack, and instead threatened Alvarez and
her cousin with further harm. This behavior suggests an unwillingness to act rather
than an inability.
                                           4
      Further, after the BIA issued its decision, we issued Barajas-Romero v.

Lynch, wherein we reaffirmed Madrigal and further emphasized the importance of

analyzing whether local government officials (including rogue officials) would

acquiesce in torture, even if the national government has taken action to combat

crime and corruption. 846 F.3d 351, 363-64 (9th Cir. 2017). Because the record

raises an issue with regard to whether “a public official would so acquiesce” in

Alvarez’s torture, see Madrigal, 716 F.3d at 509 (citation and quotation marks

omitted) (emphasis added), we remand to the BIA to consider, in light of Madrigal

and Barajas-Romero, whether local government officials would be unwilling “to

intervene to prevent the [torturous] activity” against Alvarez, Barajas-Romero, 846

F.3d at 363 (citation omitted).

3.    The BIA did not err in concluding that the IJ did not violate Alvarez’s due

process rights. A review of the record shows that the IJ was asking clarifying

questions and did not engage in any improper treatment of her or her witness. Cf.

Reyes-Melendez v. INS, 342 F.3d 1001, 1006 (9th Cir. 2003).

      We GRANT the petition as to the CAT claim and otherwise DENY the

petition for review. We VACATE the BIA’s decision and REMAND to the BIA

for reconsideration consistent with this disposition. The parties shall bear their

own costs on appeal.


                                          5
                                                                                FILED
Alvarez-Molina v. Sessions, No. 15-73134
                                                                                JUN 18 2018
BYBEE, Circuit Judge, concurring in part and dissenting in part:            MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS


      I agree that the BIA’s determination that Alvarez’s conviction for robbery

was a particularly serious crime was not an abuse of discretion, and that the IJ did

not violate Alvarez’s due process rights. I therefore concur in the denial of

Alvaraz’s petition for review on those grounds.

      But I disagree with the decision to grant the petition as to the CAT claim.

Substantial evidence supports the BIA’s determination that the harm Alvarez

suffered at the hands of her fellow MS-13 gang members did not rise to the level of

torture, and the majority does not contend otherwise. Yet it relies on the failure of

the police to intervene while Alvarez was being beaten one time by gang members

to find that the BIA did not sufficiently state why Alvarez failed to establish it was

more likely than not she would be tortured with the acquiescence of the Salvadoran

government. As the BIA explained, the failure of the police to intervene in this

one incident—in which the IJ and the BIA determined Alvarez was not being

tortured—“does not demonstrate that the police would turn a blind eye to torturous

conduct.” The BIA then considered Alvarez’s evidence of police corruption, the

evidence of government efforts to combat that corruption, and the absence of any

police involvement in the harm Alvarez suffered in El Salvador. In my view, the

BIA has already conducted the inquiry for which we remand, and substantial
evidence supports the denial of CAT relief.

      I respectfully dissent as to the CAT claim.
