United States Court of Appeals

for the Fifth Circuit

No. 19-60914

Summary Calendar

Sergio Perez-Tobar, 

Petitioner,

versus

Merrick Garland, U.S. Attorney General, 

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A099-483-389

Before Haynes, Willett, and Ho, Circuit Judges.

Per Curiam:*

Sergio Perez-Tobar, a native and citizen of El Salvador, seeks review

of the denial of his application for withholding of removal. To qualify for 

withholding of removal, an applicant must establish that he is more likely 

than not to be persecuted in the proposed country of removal due to his race, 

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

March 29, 2021

Lyle W. Cayce

Clerk

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religion, nationality, membership in a particular social group, or political 

opinion. 8 U.S.C. § 1231(b)(3); Gonzales-Veliz v. Barr, 938 F.3d 219, 224 (5th 

Cir. 2019). The applicant must show that the persecution was inflicted by the 

government or by private actors that the government is unable or unwilling 

to control. Gonzales-Veliz, 938 F.3d at 233. A showing of past persecution 

creates a rebuttable presumption of future persecution. 8 C.F.R. 

§ 1208.16(b)(1).

The Immigration Judge found that Perez-Tobar, a gay man, was a 

member of a particular social group. However, the IJ found that Perez-Tobar 

had not been persecuted on account of his sexuality. The Board of 

Immigration Appeals disagreed with the latter finding and remanded for the 

IJ to consider whether El Salvador was unable or unwilling to protect PerezTobar. On remand, the IJ found that this element was not proven. In making 

its finding, the IJ took administrative notice of a State Department country 

report that was not available during the original hearing. The BIA affirmed.

Perez-Tobar challenges the finding that El Salvador was not unable or 

unwilling to protect him. We review the IJ and BIA’s factual findings for 

substantial evidence and will reverse “only when the evidence compels us to 

do so.” Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir. 2007). Here, the IJ and 

BIA explained that the Salvadoran police accepted Perez-Tobar’s report of 

an assault; they further explained that there is no evidence that the police 

refused or failed to investigate. The IJ and BIA additionally noted that, 

although the police officer who took the report made unprofessional 

comments about Perez-Tobar’s sexuality, El Salvador has a functioning 

system to discipline police misconduct. Finally, the IJ and BIA considered 

that, according to the country report, the Salvadoran government held a 

signing ceremony to celebrate the Institutional Policy for the Protection of 

the LGBTI Community, which aims to ensure that LGBTI individuals in El 

Salvador are treated in accordance with international standards. Perez-Tobar 

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emphasizes that the record includes mixed information about the treatment 

of gay individuals in El Salvador. Even so, the evidence does not compel us 

to reach the opposite result as the IJ and BIA about El Salvador’s ability or 

willingness to protect Perez-Tobar.

Perez-Tobar also argues that the IJ deprived him of due process by 

taking administrative notice of the country report without giving him an 

opportunity to submit rebuttal evidence. Agencies have wide latitude to 

notice official documents, including country reports. See Enriquez-Gutierrez 

v. Holder, 612 F.3d 400, 410 (5th Cir. 2010). We have never required an IJ to 

inform an applicant in advance of its intent to take administrative notice. To 

the contrary, we have recognized that the opportunities to challenge the IJ’s 

reliance on noticed facts before the BIA and to file a motion to reopen satisfy 

due process. Venturini v. Mukasey, 272 F. App’x, 397, 401–02 (5th Cir. 

2008); Paul v. Ashcroft, 109 F. App’x 695, 697 (5th Cir. 2004). Perez-Tobar

did raise the issue with the BIA, though he chose not to file a motion to 

reopen. In any event, to succeed on his due process claim, Perez-Tobar must 

“make a prima facie showing that the alleged violation affected the outcome 

of the proceedings.” See Okpala v. Whitaker, 908 F.3d 965, 971 (5th Cir. 

2018). By failing to identify any rebuttal evidence that he would have 

introduced, Perez-Tobar has failed to show prejudice. See id.

The petition for review is DENIED.

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