FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EMILIA VELASQUEZ-GASPAR,

Petitioner,

v.

WILLIAM P. BARR, Attorney General,

Respondent.

No. 17-71964

Agency No.

A200-903-039

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 VelasquezGaspar failed to establish that the Guatemalan government 

was unwilling or unable to protect her from abuse by her exboyfriend, 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 VelasquezGaspar’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 VelasquezGaspar’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 VelasquezGaspar 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 VelasquezGaspar 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 VelasquezGaspar’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 VelasquezGaspar.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.” EliasZacarias, 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 CastroPerez 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.” EliasZacarias, 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 factfinder’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 noncredible 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, CastroPerez 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 brightline 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-theground 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-theground 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.