21-6382

B-A. v. Garland

BIA

Palmer, IJ

A213 140 772/773

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY 

ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF 

APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY 

ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL 

APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY 

CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY 

COUNSEL.

At a stated term of the United States Court of Appeals for the Second

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 

Square, in the City of New York, on the 28th day of February, two thousand

twenty-four.

PRESENT:

ROBERT D. SACK,

RICHARD J. SULLIVAN,

EUNICE C. LEE,

Circuit Judges.

_____________________________________

Y. M. B-A., MARIA ERMELINDA 

BAIRES-AREVALO,

Petitioners,

v. 21-6382

NAC

MERRICK B. GARLAND, UNITED 

STATES ATTORNEY GENERAL,

Respondent.

_____________________________________
2

FOR PETITIONERS: Bruno J. Bembi, Hempstead, NY.

FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant

Attorney General; Kohsei Ugumori, Senior 

Litigation Counsel; Aric A. Anderson, Trial 

Attorney, Office of Immigration Litigation, 

United States Department of Justice, 

Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a Board of 

Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND 

DECREED that the petition for review is DENIED.

Petitioners Maria Ermelinda Baires-Arevalo (“Baires-Arevalo”) and her 

minor child Y.M., natives and citizens of El Salvador, seek review of a decision of 

the BIA affirming a decision of an Immigration Judge (“IJ”) that denied Petitioners’ 

request for asylum, withholding of removal, and relief under the Convention 

Against Torture (“CAT”).1 In re Maria Ermelinda Baires-Arevalo, Y. M. B-A., Nos. 

A 213 140 772/773 (B.I.A. June 11, 2021), aff’g Nos. A 213 140 772/773 (Immigr. Ct. 

N.Y.C. Mar. 27, 2019). We assume the parties’ familiarity with the underlying 

facts and procedural history.

1 Because Y.M. was a derivative applicant on Baires-Arevalo’s asylum application, we primarily 

refer only to Baires-Arevalo throughout this Order, as Y.M.’s eligibility for relief is based on his 

mother’s claims.
3

Where the BIA adopts and affirms the IJ’s decision, we review the IJ’s 

decision as if it were that of the BIA. See Mei Chai Ye v. U.S. Dep’t of Just., 489 F.3d 

517, 523 (2d Cir. 2007). We review questions of law and the application of law to 

facts de novo and review the agency’s factual findings to determine whether they 

are supported by substantial evidence. See Ojo v. Garland, 25 F.4th 152, 159–60 (2d 

Cir. 2022). “[T]he administrative findings of fact are conclusive unless any 

reasonable adjudicator would be compelled to conclude to the contrary.” 

8 U.S.C. § 1252(b)(4)(B).

In her asylum application, Baires-Arevalo claimed that an MS-13 gang 

member – known as “El Seco” – stalked her in an attempt to convince her to 

consent to a sexual relationship with him, threatened to kill her and Y.M. when 

she refused, and attempted to kidnap Y.M. She argues that she is eligible for 

asylum and withholding of removal because of her membership in the social 

group of “young Salvadoran wom[e]n who ha[ve] resisted the sexual advances of 

a gang member” and because of her imputed anti-gang political opinion. 

Certified Admin. Record at 91; see also Pet. Br. at 8–23. She additionally argues 

that she is entitled to CAT relief in light of the “past persecution” she suffered and 

the “extensive background country information in the record regarding femicide 
4

and rape perpetrated on young women by . . . gangs.” Pet. Br. at 27.

I. Asylum and Withholding of Removal

An applicant for asylum and withholding of removal must establish past 

persecution or a well-founded fear of future persecution – or, in the case of 

withholding of removal, a likelihood of future persecution – and that “race, 

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

was or will be at least one central reason for persecuting the applicant.” 8 U.S.C. 

§ 1158(b)(1)(B)(i); see also id. § 1231(b)(3)(A); 8 C.F.R. §§ 1208.13(b), 1208.16(b); 

Quituizaca v. Garland, 52 F.4th 103, 113–14 (2d Cir. 2022) (holding that the “one 

central reason” standard applies to both asylum and withholding of removal

claims). In order to qualify as persecution, the conduct identified must be 

“attributable to the government, whether directly because engaged in by 

government officials, or indirectly because engaged in by private persons whom 

the government is unable or unwilling to control.” Scarlett v. Barr, 957 F.3d 316, 

328 (2d Cir. 2020) (internal quotation marks omitted). An applicant can show that 

the relevant government was unable or unwilling to control private acts through 

“evidence of an inability on the part of the government to prevent the acts” or 

“evidence that government actors condoned the acts.” Aliyev v. Mukasey, 549 F.3d 
5

111, 116 (2d Cir. 2008) (internal quotation marks omitted).

Baires-Arevalo testified that, shortly after she moved to San Salvador to be 

closer to Y.M.’s cancer treatment center, El Seco began making vulgar remarks and 

gestures towards her when she passed him in the neighborhood. She further

testified that, as time went on, El Seco became more aggressive and began 

following her, telling her that if she did not “give him what he wanted,” he would 

kill her and her son. Certified Admin. Record at 98–99. According to BairesArevalo, her last interaction with El Seco was when he followed her to the bus stop 

and grabbed her son, threatening to kidnap him if she did not accede to his sexual 

advances. She claimed that, upon seeing a police car, El Seco “withdrew” from 

this altercation and “fled” the scene. Id. at 101, 110. When she told the police 

officers about the incident, they declined to take any action because they were “off 

duty” and instructed her “to go to the police station to make a complaint.” Id. at 

103. Baires-Arevalo asserted that she never made a formal complaint because she 

thought it would be too “difficult to get [the police] to do something.” Id.

Because Baires-Arevalo’s claims concern the conduct of a private actor, she 

had the burden of establishing that governmental authorities were unwilling or 

unable to intervene. See Scarlett, 957 F.3d at 328. The agency did not err in 
6

concluding that she failed to meet this burden. Here, the record reflects that 

police officers instructed Baires-Arevalo to file a formal complaint against El Seco, 

thereby demonstrating a willingness to protect her. See id. at 330 (concluding that 

police were willing to control gangs because they warned petitioner about 

impending gang violence). Moreover, Baires-Arevalo’s testimony that El Seco 

fled the scene upon seeing the police car indicates that the police were able to 

effectively protect her from gang violence. Given this record evidence – as well 

as the fact that Baires-Arevalo chose not to file a formal incident report despite the 

officers’ recommendation – we cannot say that the agency erred in concluding that 

Baires-Arevalo’s assertions that the police were unwilling to help her at the time 

of the altercation and would have been unwilling to help her after the fact were 

speculative. See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In the 

absence of solid support in the record . . . [an applicant’s] fear is speculative at 

best.”). 

Furthermore, contrary to Petitioners’ contention, the country conditions 

evidence did not establish that the authorities would be unable or unwilling to 

protect someone in Baires-Arevalo’s position. Indeed, although the country 

reports in the record reflect that homicide rates for women are among the highest 
7

in the region and that women are afraid to report incidents of domestic violence 

out of fear that gangs are monitoring police units, they also reflect that the 

government has taken steps to combat gang violence and to protect women by, 

among other things, creating special police units, courts, shelters, and support 

centers.

Baires-Arevalo’s failure to show that authorities would be unable or 

unwilling to control El Seco is dispositive of her asylum and withholding of 

removal claims. See Scarlett, 957 F.3d at 333 (“[W]hen an applicant’s 

well-founded fear pertains to private violence . . . h[er] ability to claim persecution 

depends on showing that the government is unwilling or unable to protect h[er] 

against that violence.”). We therefore need not reach the agency’s alternative 

determination that Baires-Arevalo failed to establish that her persecution was or 

would be connected to a protected ground. See INS v. Bagamasbad, 429 U.S. 24, 25 

(1976) (“As a general rule courts and agencies are not required to make findings 

on issues the decision of which is unnecessary to the results they reach.”).

II. CAT Relief

An applicant for CAT relief must demonstrate that “it is more likely than 

not that . . . she would be tortured if removed to the proposed country of removal.” 
8

8 C.F.R. § 1208.16(c)(2). “Torture is defined as any act by which severe pain or 

suffering, whether physical or mental, is intentionally inflicted on a person for 

such purposes as obtaining from . . . her or a third person information or a 

confession, punishing . . . her for an act . . . she or a third person has committed or 

is suspected of having committed, intimidating or coercing . . . her or a third 

person, or for any reason based on discrimination of any kind, when such pain or 

suffering is inflicted by, or at the instigation of, or with the consent or acquiescence 

of, a public official acting in an official capacity or other person acting in an official 

capacity.” Id. § 1208.18(a)(1).2 “In assessing whether it is more likely than not 

that an applicant would be tortured,” the agency must consider “all evidence 

relevant to the possibility of future torture,” including “[e]vidence of past torture 

inflicted upon the applicant,” the applicant’s ability to relocate within the country, 

“[e]vidence of gross, flagrant[,] or mass violations of human rights within the 

country of removal,” and “[o]ther relevant information regarding conditions in 

the country of removal.” Id. § 1208.16(c)(3).

Baires-Arevalo testified that El Seco verbally harassed her, followed her,

2 We refer to the version of the regulations in place at the time of the agency’s decision. See Garcia 

v. Garland, 64 F.4th 62, 67 n.3 (2d Cir. 2023).
9

threatened her, occasionally grabbed her hands, and once grabbed her son. Her 

testimony was clear, however, that El Seco only began targeting her after she 

moved to San Salvador. She also testified that El Seco approached her mother 

after she left El Salvador, but indicated that he only inquired as to her whereabouts

without making any threats. Given the lack of evidence demonstrating that El 

Seco ever harmed Baires-Arevalo in a manner that would constitute torture or, as 

discussed above, that any public official would acquiesce in such conduct, the IJ 

did not err in concluding that Baires-Arevalo did not establish that it was more 

likely than not that El Seco would torture her with the government’s acquiescence

if she returned to El Salvador. See Savchuck v. Mukasey, 518 F.3d 119, 123 (2d Cir. 

2008) (“It is the likelihood of all necessary events coming together that must more 

likely than not lead to torture, and a chain of events cannot be more likely than its 

least likely link.” (internal quotation marks omitted)).

* * *
10

For the foregoing reasons, the petition for review is DENIED. All pending 

motions and applications are DENIED and stays VACATED.

FOR THE COURT: 

Catherine O’Hagan Wolfe,

Clerk of Court