USCA4 Appeal: 21-2367 Doc: 77 Filed: 02/19/2025 Pg: 1 of 28

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-2367

BRYAN ALEXIS MOLINA-DIAZ; CONY VANESSA PASCUAL DE MOLINA

Petitioners

v.

PAMELA JO BONDI, Attorney General

Respondent

No. 23-1923

BRYAN ALEXIS MOLINA-DIAZ; CONY VANESSA PASCUAL DE MOLINA

Petitioners

v.

PAMELA JO BONDI, Attorney General

Respondent

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

Argued: September 27, 2024 Decided: February 19, 2025

Before GREGORY, QUATTLEBAUM, and BERNER, Circuit Judges. USCA4 Appeal: 21-2367 Doc: 77 Filed: 02/19/2025 Pg: 2 of 28

Petitions denied by published opinion. Judge Quattlebaum wrote the opinion, in which Judge Berner joined. Judge Gregory wrote a dissenting opinion.

ARGUED: Benjamin Ross Winograd, IMMIGRANT & REFUGEE APPELLATE CENTER, LLC, Alexandria, Virginia, for Petitioners. Spencer Stephen Shucard, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Lauren Vogt, L&L IMMIGRATION LAW, PLLC, Alexandria, Virginia, for Petitioners. Brian Boynton, Principal Deputy Assistant Attorney General, Keith I. McManus, Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

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QUATTLEBAUM, Circuit Judge:

Bryan Alexis Molina-Diaz and his wife Cony Vanessa Pasqual de Molina fled El

Salvador after witnessing the murder of Cony’s cousin Jose. Bryan applied for asylum and

withholding of removal. An Immigration Judge (“IJ”) denied relief and the Board of

Immigration Appeals (“Board”) affirmed. Bryan moved for reconsideration, and to reopen

based on his prior counsel’s ineffective assistance. The Board denied both motions.

Now Bryan petitions for review of both Board decisions. While his petitions

challenge those decisions for several reasons, the decisive issue is the requirement that a

petitioner show the home government is unable or unwilling to control the non-state

persecutor. Bryan claims that after the Supreme Court decided Loper Bright Enterprises v.

Raimondo,

(2024), we should abandon that requirement. Alternatively, he

argues that even if a petitioner must show the home government’s inability or

unwillingness to control a non-state persecutor, the IJ and Board conflated inability with

unwillingness. Finally, Bryan contends that the IJ and Board ignored evidence about

conditions in his home country that satisfies the “unable or unwilling” requirement.

We reject these arguments. First, regardless of Loper Bright, binding Fourth Circuit

precedent requires an applicant to show the home government’s inability or unwillingness

to control a non-state persecutor. Second, rather than conflating inability with

unwillingness, the IJ and the Board relied on evidence showing the home government’s

ability and willingness to control non-state persecutors. Third, while the IJ and the Board

are not required to address every piece of evidence a petitioner introduces, here they

addressed Bryan’s generalized country conditions evidence, reasoning that it was

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outweighed by evidence specific to Bryan. And substantial evidence supports the Board’s

government control finding. Thus, we deny the petitions for review.

I.

A. Legal Background

A foreigner physically present in the United States may apply for asylum under the

Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101–1537. To qualify, the

applicant must establish that he meets the definition of “refugee.” Id. § 1158(b)(1)(B)(i).

To do so, he must be “unable or unwilling to return to, and [] unable or unwilling to avail

himself or herself of the protection of, that country because of persecution or a well-

founded fear of persecution.” Id. § 1101(a)(42)(A). The persecution must be “on account

of race, religion, nationality, membership in a particular social group, or political opinion.”

Id. In other words, a statutorily protected ground must be “at least one central reason” for

the claimed persecution. Id. § 1158(b)(1)(B)(i). We have described these statutory

requirements as a three-element test: the applicant must show (1) he “suffered past

persecution or has a well-founded fear of future persecution”; (2) “the persecution is ‘on

account of’ his race, religion, nationality, membership in a particular social group, or

political opinion”; and (3) “the persecution is perpetrated by” the applicant’s home

government or a non-state actor whom the government is “unable or unwilling to control.”

Portillo Flores v. Garland,

, 626 (4th Cir. 2021) (en banc) (cleaned up).

Separately, a petitioner may seek withholding of removal. See

. The

Attorney General may withhold removal to a country if a petitioner’s “life or freedom

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would be threatened in that country because of [his] race, religion, nationality, membership

in a particular social group, or political opinion.”

§ 1231(b)(3)(A).1 In the Fourth

Circuit, a withholding-of-removal petition requires an even stricter persecution showing

than an asylum application. See Lopez-Benitez v. Garland,

, 768 (4th Cir.

2024) (withholding of removal requires “a clear probability of persecution,” a higher

standard than the one applied to asylum applicants (quoting Mirisawo v. Holder,

(4th Cir. 2010))).

With that background in mind, we turn to the facts here.

B. Factual Background2

In June 2015, Bryan and Cony sat on a patio at the house of Cony’s mother in La

Libertad, El Salvador.3 On the street below, three individuals stopped Cony’s cousin Jose.

Their conversation grew heated before one individual pulled out a gun and shot Jose in the

head and chest. Bryan saw the killing from the patio. Cony—pregnant at the time—did not

1 Although the current withholding-of-removal statute lacks the word “persecution,” the pre-1980 statute prohibited removal when the petitioner faced persecution in his home country. In re McMullen,

(BIA 1980). Because Congress only amended the language to comply with treaty obligations, the Board still requires a showing of persecution by the home government or “at the hands of an organization or person from which the government cannot or will not protect the alien.”

The Fourth Circuit also requires a showing of persecution. See, e.g., Lopez-Benitez v. Garland,

, 768 (4th Cir. 2024). 2 The case-specific facts derive largely from Bryan’s and Cony’s testimony at a hearing before the IJ. 3 The Joint Appendix refers at times to Connie. But since the official, government records use Cony, we use that spelling.

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see the shooting. Bryan quickly instructed her to go inside. He remained on the patio, in

shock. One of the individuals, carrying a gun, ran down a nearby alley. He and Bryan saw

each other. Bryan thought these individuals were members of the MS-13 gang.

Bryan went inside after several minutes to call 911. Police responded to the call,

closed the street and began investigating. Bryan did not speak to the police out of fear that

corrupt police officers would report him to the gang likely responsible for Jose’s killing:

MS-13. This fear stemmed from a prior run-in between Bryan and a corrupt police officer,

who beat Bryan and revealed a tattoo of an opposing gang. Jose’s family did speak with

the police officers on the scene.

The family planned a funeral to honor Jose. An MS-13 member texted Jose’s

brother, warning him that “[t]here were no men allowed to be there on that day.” J.A. 280.

Jose’s brother informed family members and friends about the text. Ultimately, Bryan

attended. The police secured the funeral and it proceeded without incident. As Bryan

explained, “nothing happened because the family had requested security.” J.A. 281.

MS-13 members threatened Bryan several times later that summer. In early July,

two individuals intercepted Bryan while he delivered a gas cylinder for work. They told

him that they knew he witnessed Jose’s murder. And they warned that if he talked, he

would have problems. Several weeks later, three individuals—wearing masks and carrying

firearms—confronted Bryan. One individual handed Bryan a cell phone. An MS-13 leader

on the phone told Bryan not to talk about Jose’s murder. Then his tone changed and he

said, “I don’t want to see you in . . . this area anymore. Leave this place.” J.A. 288. The

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leader told Bryan that if he did not leave, the gang would kill him “as it happened to Jose.”

J.A. 289.

Bryan and Cony fled to the United States. They were detained upon arrival. The

United States issued them both Notices to Appear. Bryan applied for asylum, withholding

of removal and relief under the Convention Against Torture. Cony did not file her own

application but is a derivative beneficiary of Bryan’s application. J.A. 221; see

(b)(3)(A) (granting asylum to the spouse or child of an applicant who is granted

asylum).

C. Procedural Background

An IJ held a hearing on January 31, 2019. Bryan and Cony both testified. Bryan’s

counsel entered “country conditions” evidence about El Salvador into the record. This

evidence included an expert affidavit from Professor Eric Hershberg, 2017 and 2018 State

Department reports, a 2016 Canadian Immigration and Refugee Board report and a 2018

Freedom House report.4

The IJ found Bryan’s and Cony’s testimony credible and corroborated by the

supporting documentary evidence. But ultimately, he rejected their asylum and

withholding-of-removal claims. The IJ noted Bryan’s purported particular social groups:

(1) the family of Jose; (2) male members of Jose’s family; (3) Cony’s immediate family;

4 The IJ gave the expert report reduced evidentiary weight because the government was unable to cross-examine Professor Hershberg and he never met with Bryan. J.A. 253– 56.

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and (4) El Salvadoran witnesses to gang murders. Although he rejected El Salvadoran

witnesses to gang murders as neither particular nor socially distinct, the IJ found the first

three groups valid under Fourth Circuit precedent recognizing familial relationships as

particular social groups. He concluded, however, that Bryan failed to show that “even one

central reason for the harm suffered or feared . . . is on account of [his] membership in any

of these purported family based particular social groups.” J.A. 223. The individuals

threatened Bryan, the IJ reasoned, not because of his family relationship but because “he

was the only one who had witnessed Jose’s murder.”

Also, the IJ explained that the text

message banning men from attending the funeral had unclear motivations and was

insufficient on its own to satisfy the nexus requirement. The IJ independently found that

Bryan failed to show El Salvador’s inability or unwillingness to control the non-

governmental actors. According to the IJ, police responded promptly after Bryan called

911 and began investigating the murder. They also provided effective security at Jose’s

funeral.5

Bryan challenged the IJ’s decision in an appeal to the Board. The Board reviews all

the IJ’s findings of fact, including credibility determinations, for clear error.

(d)(3)(i). And it reviews all other issues de novo.

§ 1003.1(d)(3)(ii). Applying

these standards, the Board “adopt[ed] and affirm[ed] the decision of the Immigration

5 The IJ also denied relief under the Convention Against Torture because Bryan did not demonstrate that he faces a “more likely than not chance of torture” upon return to El Salvador. J.A. 224. Bryan waived this issue by not appealing it to the Board. J.A. 177 n.2.

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Judge.” J.A. 178. First, the Board found that the IJ did not clearly err when finding that

“the individuals who threatened [Bryan], were, or are motivated in any respect by any of

these familial relationships.” Id. Second, the Board affirmed the IJ’s finding that Bryan

cannot satisfy the “unable or unwilling” government control requirement. According to the

Board, the specific facts in the case demonstrated the authorities’ effective response to the

murder and protection at the funeral. And the Board was unpersuaded by the general

country conditions evidence in light of the specific case evidence.

Bryan, represented by new counsel, moved for reconsideration. He challenged the

Board’s application of clear error review to the nexus finding and the existence of the

“unable or unwilling” government control requirement. He also moved to reopen, alleging

that his prior attorney provided ineffective assistance by failing to file an asylum

application on behalf of Cony. The Board denied both motions. First, the Board determined

that it had properly applied clear error review to the factual finding of the persecutor’s

motive, even though that factual finding undergirds the legal “nexus” conclusion. Second,

the Board explained that it and the Fourth Circuit have long applied the government control

requirement “based upon the statutory definitions of ‘refugee’ and ‘persecution.’” J.A. 4.

According to the Board, the IJ did not err in finding Bryan failed to meet this burden.

Finally, the Board held that Bryan had not shown prejudice for his ineffective assistance

claim. Cony’s hypothetical asylum application would also fail the “unable or unwilling”

government control requirement. Last, the Board felt prior counsel persuasively argued

that he strategically chose not to file an application for Cony.

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Bryan now petitions for review of the IJ’s and Board’s decisions. 6 See Cordova v.

Holder,

(4th Cir. 2014) (“When, as here, the BIA adopts and affirms the

IJ’s decision and supplements it with its own opinion, we review both decisions.”). He

argues that we should not apply the “unable or unwilling” government control requirement

after the Supreme Court overturned the Chevron doctrine in Loper Bright.7 Molina-Diaz

Suppl. Br. 1. Even if we apply the requirement, Bryan alleges legal error because the Board

conflated inability with unwillingness and ignored the country conditions evidence.

Molina-Diaz Br. 19–30. Bryan also renews his challenges regarding ineffective assistance

of counsel and the Board’s review of the nexus determination.

at 31–56.8

II.

We deny the petitions for review. First, binding Fourth Circuit precedent, which

does not defer to the Board under Chevron, requires a petitioner to show that the home

government is “unable or unwilling” to control non-state persecutors. Second, the Board

did not conflate inability with unwillingness or ignore the country conditions evidence.

And because a reasonable adjudicator would not be compelled to find Bryan showed El

6 Bryan petitioned for our review of the Board’s initial decision, see Case No. 21- 2367. He subsequently petitioned for our review of the Board’s denial of his motions to reconsider and reopen, see Case No. 23-1923. We resolve both petitions in this appeal. 7 See Chevron, U.S.A., Inc. v. Nat’l Res. Def. Council, Inc.,

(1984). 8 We have jurisdiction pursuant to

(a)(1) and (b)(6).

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Salvador’s inability or unwillingness, substantial evidence supports the Board’s

determination.

A. Existence of Government Control Requirement

In Loper Bright, the Supreme Court overturned the Chevron doctrine. Loper Bright,

144 S. Ct. at 2273. Section 706 of the APA requires courts to decide “‘all relevant questions

of law’ arising on review of agency action.” Id. at 2261 (quoting

). A court

may give weight to an agency’s authoritative interpretation but ultimately must rule on

matters of law.

at 2262 (citing Skidmore v. Swift & Co.,

(1944)).

Bryan claims we adopted the “unable or unwilling” government control requirement

without any independent judgment. Molina-Diaz Suppl. Br. 5. Allegedly, we adopted the

requirement only because the Board did.

He argues that we should keep the test but root

it in the INA’s “well-founded” fear of persecution language. Id. at 6.9 We review this legal

question de novo. Portillo Flores, 3 F.4th at 625.

9 The government argues that Bryan failed to exhaust this argument. Gov. Suppl. Br. 9 n.5.

(d)(1) imposes a non-jurisdictional but mandatory exhaustion requirement. See Santos-Zacaria v. Garland,

(2023); Tepas v. Garland,

, 213 (4th Cir. 2023). If a petitioner raises an issue in an appeal to the Board and the Board “goes on to ‘address’ that issue, we possess jurisdiction to review it.” Portillo Flores, 3 F.4th at 632. And the exhaustion requirement does not bar “specific, subsidiary legal arguments, or arguments by extension, that were not made below.” Ramirez v. Sessions,

(4th Cir. 2018). In his motion to reconsider, Bryan argued that the INA does not include any “unable or unwilling” government control requirement. Now Bryan argues that the INA includes the requirement, but elsewhere in the statute. Molina-Diaz Suppl. Br. 6–12. The second argument is a subsidiary legal argument of the first. The Board’s rejection of Bryan’s earlier argument—concluding that “refugee” and “persecution” require an “unable or unwilling” government control inquiry—would similarly resolve his current challenge. Thus, he has satisfied § 1252(d)(1)’s claim-processing rule.

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It is true that the Board addressed the government control requirement before any

Fourth Circuit decisions on the issue. It has long required a showing of persecution by a

government or an actor whom the government cannot control in the withholding-of-

removal context. See, e.g., In re Eusaph,

(BIA 1964); In re Tan,

(BIA 1967); In re Pierre,

(BIA 1975); see

also Rosa v. INS,

(1st Cir. 1971). After Congress amended the Refugee

Act in 1980 to conform the INA with the United Nations Protocol Relating to the Status of

Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267, the Board considered whether

an asylum applicant had to make the same showing. See In re Acosta,

(BIA 1985). The Board answered affirmatively because the meaning of “persecution”

had been well-settled, and Congress could have easily defined the term otherwise.

at

222–23. In other words, the Board “incorporated the ‘accepted construction’ of

[persecution] into the refugee definition.” Ortiz v. Garland,

, 688 (6th Cir.

2021).

We first embraced the “unable or unwilling” government control requirement in

1988. In M.A. AXXXXXXXX v. INS, we explained that a draft-dodging applicant needed to

show “the Salvadoran government is unwilling or unable to control the offending group,

here, the armed forces.”

, 218 (4th Cir. 1988), vacated

, 314 (4th

Cir. 1990) (en banc) (rejecting a government control inquiry in the draft-dodger context

because, unless the government’s non-action has been condemned by a recognized public

governmental body, the inquiry “would place [a court] in precisely the political posture

that we have attempted to avoid”). The M.A. court cited three Ninth Circuit cases for this

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requirement—without any deference or even citation to the Board. 858 F.2d at 218 (citing

Lazo-Majano v. INS,

(9th Cir. 1987); Bolanos-Hernandez v. INS,

(9th Cir. 1984); McMullen v. INS,

, 1315 n.2 (9th Cir.

1981)).10 Many subsequent Fourth Circuit decisions have restated and applied the

government control requirement. See, e.g., Lopez-Soto v. Ashcroft,

(4th

Cir. 2004), vacated sub. nom on other grounds by Lopez-Soto v. Gonzales, No. 03-1331,

, at *1 (4th Cir. July 26, 2005); Sydykov v. Gonzales, 127

Fed. App’x 100, 100–01 (4th Cir. 2005) (per curiam); Soliman v. Holder, 373 Fed. App’x

384, 385 (4th Cir. 2010) (per curiam).

While our more recent decisions note the Board’s interpretation, they still do not

defer to the Board under Chevron. We cited the Board’s In re Acosta decision in Crespin-

Valladares v. Holder,

(4th Cir. 2011). But we also cited several out-of-

circuit decisions applying the requirement.

And elsewhere in Crespin-Valladares, we

explicitly applied Chevron deference.

(deferring to the Board’s interpretation of

“particular social group” under Chevron). In contrast, we did not defer to the Board under

Chevron on the “unable or unwilling” government control requirement. In Mulyani v.

Holder, we described the requirement as “not explicit in the INA.”

(4th

Cir. 2014). It “derives from the board’s interpretations of two words with profound

significance in asylum law—namely, ‘refugee’ and ‘persecution.’”

Those references to

10 None of these cases applied Chevron deference to the Board’s interpretation of the INA. In fact, McMullen predates the Supreme Court’s Chevron decision.

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the Board’s interpretation still do not indicate Chevron deference. We never said we were

deferring, and we did not mention Chevron. To the contrary, we cited persuasive out-of-

circuit and binding Fourth Circuit precedent imposing the requirement.

at 198–99,

198n.4. And no party in Mulyani even “dispute[d] the need to establish governmental

unwillingness or inability to control private actors.”

.11

These prior decisions imposing an “unable or unwilling” government control

requirement in the INA continue to bind us. Loper Bright did not “specifically reject[] the

reasoning on which” the prior Fourth Circuit decisions were based, so we must adhere to

them. Qingyun Li v. Holder,

(4th Cir. 2011) (recognizing that prior

Fourth Circuit decisions bind this Panel). Bryan’s attack on the “unable or unwilling”

government control requirement is “simply wrong on the law.” Pineda-Perez v. Garland,

No. 22-1212,

, at *1 (4th Cir. Sept. 7, 2023) (rejecting a similar

challenge to the government control requirement).

B. Conflation of Inability and Unwillingness

Bryan argues that the IJ and Board conflated inability with unwillingness. Molina-

Diaz Br. 19–25. We review this legal question de novo. See Hernandez-Avalos v. Lynch,

(4th Cir. 2015).

11 Mulyani also confirmed that the “unable or unwilling” government control requirement applies in the withholding-of-removal context. See

(“Withholding of removal is also based on persecution . . . .” (emphasis added)); see also Lopez-Benitez, 91 F.4th at 768.

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An applicant satisfies the government control requirement if he demonstrates the

home government’s inability or unwillingness to control a private actor. See Orellana v.

Barr,

, 151 n.3 (4th Cir. 2019). Relying on the First Circuit’s Rosales Justo

decision, Bryan argues the record may support a conclusion that the government was

willing to control the gangs, but not that it was able to. See Rosales Justo v. Sessions,

, 162–63 (1st Cir. 2018). In that case, after a gang murdered respondent’s son, an

IJ determined that a police investigation demonstrated Mexico’s willingness to control the

gang.

. But country conditions evidence demonstrated Mexico’s inability to

protect respondent.

at 159–60. The Board reversed, concluding the police investigation

demonstrated both willingness and ability.

. The First Circuit then reversed the

Board because the police investigation showed Mexico’s willingness—but nothing about

its ability—to control the gang.

. The Ninth Circuit similarly concluded that the

Board relied on evidence of Mexico’s efforts to combat drug violence while failing to

“examine the efficacy of those efforts.” Madrigal v. Holder,

, 506–07 (9th

Cir. 2013) (emphasis added).

According to Bryan, the Board did the same thing here. We disagree. The record

shows that the IJ and Board sufficiently considered both willingness and ability in Bryan’s

case. As to willingness, the IJ noted the authorities’ prompt response to Bryan’s 911 call

and their launching of an investigation into Jose’s killing. As to ability, the IJ explained

that police “secured the area” of the murder and they “provided security at Jose’s funeral.”

J.A. 224. The Board cited this same evidence. The authorities’ success in securing Jose’s

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funeral, despite an explicit threat from MS-13, particularly reflects El Salvador’s ability

and distinguishes this case from Rosales Justo and Madrigal.12

C. Consideration of Country Conditions Evidence

Bryan argues that the IJ and Board ignored his country conditions evidence showing

El Salvador’s struggles to control MS-13. Molina-Diaz Br. 25–30. To the extent Bryan is

arguing that the IJ and Board legally erred by not mentioning the country conditions

evidence, we reject the argument as doubly flawed. First, the IJ and Board are “not required

to discuss every piece of evidence in the record.” Nolasco v. Garland,

, 190

(4th Cir. 2021) (cleaned up). We “presume that, in reaching their conclusions, the IJ and

the Board reviewed the evidence presented to them and made their decisions based on

relevant evidence.”

Second, Bryan’s argument overlooks important details in the record. The IJ

referenced the country conditions evidence when finding Bryan’s and Cony’s testimony

credible and “consistent with their written applications and affidavits, as well as with the

supporting corroborative evidence.” J.A. 222 (emphasis added). And in affirming the IJ’s

12 Bryan takes great issue with the IJ’s citation to In re A-B-,

(A.G. 2018) (A-B- I), where the Attorney General may have increased the stringency of the government control requirement by stating an applicant must show the government had “a complete helplessness to protect the victims.”

. After ensuing litigation, the Attorney General rescinded A-B- I. See In re A-B-,

, 309 (A.G. 2021) (A-B- III). But nothing in the IJ’s decision suggests he applied a “complete helplessness” standard. The IJ’s citation to A-B- I after discussing security at Jose’s funeral likely references A-B- I’s general point that “[n]o country provides its citizens with complete security from private criminal activity, and perfect protection is not required.” In re A-B- I,

.

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determination that Bryan had “not established that El Salvador would be unwilling or

unable to protect him or his wife,” the Board first identified evidence the IJ felt contradicted

Bryan’s claim—specifically that after Jose’s death, the police responded immediately by

securing the area, searching for fingerprints and speaking with witnesses. J.A. 178. The

Board also explained that Bryan’s family requested the police provide security at Jose’s

funeral.

Then, the Board weighed that evidence against the country condition evidence

Bryan introduced. The Board reasoned that “[g]iven the evidence in this specific case, we

are unpersuaded by [Bryan’s] assertion that general country evidence established the

Salvadoran [government]’s inability or unwillingness to protect him and his wife from

gang violence.”

Plainly, the Board considered the country conditions evidence. It

mentioned it but found it less persuasive than other evidence in the case.

To the extent Bryan is challenging the agency’s factual findings, we review only for

substantial evidence. Cordova,

. We treat the agency’s finding “as

conclusive unless the evidence was such that any reasonable adjudicator would have been

compelled to a contrary view.” Orellana,

; see

(b)(4)(B).

As explained above, the IJ and Board noted the authorities’ prompt response to Bryan’s

911 call and the launching of an investigation as examples of willingness. Additionally,

their securing of the murder scene and effective protection at Jose’s funeral demonstrated

ability. And the persecutors’ threats to Bryan exhibit some level of concern about the

authorities. Bryan points to record evidence leaning the other way: the country conditions

evidence and Bryan’s testimony about police corruption. Perhaps a reasonable adjudicator

could have weighed the record evidence differently, but a reasonable adjudicator would

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not be compelled to find El Salvador unable or unwilling to protect Bryan from MS-13.

Sufficient evidence supports the IJ’s and the Board’s findings.

The dissent states “[i]n now the fourth opinion discussing Petitioners’ asylum

applications, not a drop of ink has been spilled to address the significant, unrebutted

evidence presented that El Salvador is unable to control MS-13.” Diss. Op. at 20. And later

the dissent insists that we “extend[] the rule that an agency need not discuss each and every

piece of evidence into a rule permitting the discussion of no evidence at all so long as the

existence of evidence is mentioned.” Diss. Op. at 26. With respect, we disagree. As already

noted, the IJ (J.A. 222), the Board (J.A. 178) and this opinion all discuss the country

conditions evidence Bryan submitted. Beyond that, the Board, whose final decision we

review, did not merely mention the evidence. It explicitly weighed the evidence against

other case specific evidence, finding the case specific evidence more persuasive. Thus, the

record reveals the Board “heard and thought” about the country conditions evidence. Chen

v. Garland,

, 572 (4th Cir. 2023). What’s more, neither Cordova,

, nor Orellana, 925 F.3d at 152—both of which the dissent cites to argue that the Board

may not ignore evidence—involve a record like this one, where the Board explained that

it found the case-specific evidence more persuasive than the country conditions evidence.

In sum, while our good colleague in dissent might prefer more from the Board, the law

does not require it.

D. Ineffective Assistance and Nexus Challenges

Last, our decision on the “unable or unwilling” government control requirement

resolves Bryan’s ineffective assistance and nexus challenges. First, because Bryan failed

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to satisfy the “unable or unwilling” government control requirement, he cannot

demonstrate prejudice on the ineffective assistance claim. See Figeroa v. INS,

(4th Cir. 1989) (a claim of ineffective assistance at a deportation proceeding requires a

showing of (1) compliance with certain procedural requirements; (2) “ineffective

representation”; and (3) “prejudice to [the applicant] which occurred as a result of that

ineffectiveness”). Cony’s asylum application would fail because she cannot demonstrate

El Salvador’s inability or unwillingness to protect her from MS-13. Second, we need not

address Bryan’s nexus argument because his failure to meet the “unable or unwilling”

government control requirement disposes of his petitions for review.

III.

Accordingly, we deny the petitions for review.

PETITIONS DENIED

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GREGORY, Circuit Judge, dissenting:

While I agree with much of the analysis of my colleagues, I respectfully dissent

from the affirmance of the mere perfunctory treatment of the country conditions evidence

provided by Bryan and Cony in this case. In now the fourth opinion discussing Petitioners’

asylum applications, not a drop of ink has been spilled to address the significant, unrebutted

evidence presented that El Salvador is unable to control MS-13. The majority twists our

prior cases beyond recognition, converting a rule that IJs and the BIA need not consider all

evidence in the record into a rule that they need not consider any evidence so long as they

passingly mention that evidence exists in the ether.

Rather than following our prior cases requiring immigration authorities to provide

some discussion of countervailing evidence, the majority affirms based on a few words and

an unsupported inference that the BIA and IJ did not find the country conditions evidence

persuasive. While the BIA and IJ did not technically ignore the existence of country

conditions evidence, for the majority, a one sentence acknowledgement was somehow

sufficient to meet the requirements of our precedent. But, in the BIA and IJ decisions

before us, there is no discussion of any of the several country conditions reports: where

they came from, what they said, or why they might be outweighed by the specific facts of

this case.

I.

Before the IJ, Bryan and Cony presented several country conditions reports. Because

the IJ, the BIA, and the majority does not discuss the substance of these reports in any

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meaningful respect, I provide here a summary of the country conditions evidence presented.

This includes a detailed expert report from Dr. Eric Herschberg, professor of Government

and Latin American Studies at American University, and several government-produced

country conditions reports, including two from the United States Department of State.

These reports describe how gangs in El Salvador are effectively political actors. As

Dr. Herschberg explained, “[t]he sheer size of El Salvador’s gangs and their proclivity for

violence pose a serious threat to the prevailing economic, legal, and political structures of

El Salvador.” J.A. 415. “Today, gangs in El Salvador do in fact exercise territorial control,

collecting ‘taxes’ through widespread extortion networks and dictating social norms in the

areas under their dominion.” J.A. 416. “They actively compete with, displace, merge with

(through corruption), and fill gaps in governance where the formal state is virtually

nonexistent, entering and running community associations and regularly interacting with

local community and religious leaders.”

“Government officials and political parties at

the local and national level have treated the gangs as a political actor by entering into

negotiations with them.”

The reports also find that El Salvador’s police force is woefully ineffective in

combatting MS-13. Per the U.S. Department of State’s 2017 Human Rights Report for El

Salvador, “[i]nadequate training, failure to implement the administrative police career law,

arbitrary promotions, insufficient government funding, failure to enforce evidentiary rules

effectively, and instances of corruption and other crimes limited the [national police’s]

effectiveness.” J.A. 418. Efforts by El Salvador to combat gang violence have led to mass

resignations of officers due to fear of retribution by gangs against the police. J.A. 419. 21 USCA4 Appeal: 21-2367 Doc: 77 Filed: 02/19/2025 Pg: 22 of 28

Police efforts to combat gang violence are further impeded by El Salvadoran citizens’ fear

of cooperating with law enforcement, both due to gang reprisals for those who report gang

violence and the inability or unwillingness of police to protect witnesses.

This is

compounded by rampant corruption within police departments, often by officers who fear

for their own safety and thus work with gangs.

This has led the State Department to

“recognize[] that the ‘principal human rights problems’ in El Salvador include ‘widespread

corruption’ and ‘weak rule of law.’”

As Dr. Herschberg explained, “MS-13’s dominance is dependent upon its ability to

instill fear in the population living in territories it controls, and those individuals who refuse

to comply with the gang’s demands, directly challenge its authority, and/or witness its

criminal activities represent threats that must be neutralized.” J.A. 412. “Gang members

believe that failing to exact revenge against anti-gang dissidents would be ruinous to their

status within their own gang, among gang rivals, and the public.” J.A. 418. “[A] central

component of gang tactics is to punish family units as a whole for the transgressions of any

one of its members,” primarily to “engender fear and subordination.” J.A. 412.

The above led Dr. Hershberg to conclude that, “if [Bryan] were to return to El

Salvador in defiance of gang demands, he would expose himself and Cony to retaliatory

violence from gang members who will want to ensure that others do not commit similar

transgressions.” J.A. 421. Indeed, Dr. Hershberg stated that “it is my professional opinion

that they would be at high risk for substantial physical harm—including murder—if

removed to El Salvador.” J.A. 421.

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But, although the IJ found Dr. Herschberg to have an “impressive, pretty

comprehensive” resume, J.A. 256, the IJ inexplicably failed to discuss the substance of his

detailed report in any respect. Nor did the BIA, nor the majority.

II.

While the IJ’s factual findings are subject to an “extremely deferential standard,”

Menghesha v. Gonzales,

(4th Cir. 2006), an IJ cannot ignore legally

significant testimony without justification. “We presume that, in reaching these

conclusions, the IJ and the BIA reviewed the evidence presented to them and made their

decisions based on the relevant evidence.” Martinez v. Holder,

(4th Cir.

2014). However, “it is our responsibility to ensure that unrebutted, legally significant

evidence is not arbitrarily ignored by the fact finder.” Cordova v. Holder,

(4th Cir. 2014) (internal citations and quotation marks omitted); see also Tassi v.

Holder,

(4th Cir. 2011) (“[A]n IJ is not entitled to base a decision on

only isolated snippets of the record while disregarding the rest.”) (cleaned up). When

disregarding “credible, significant, and unrebutted evidence,” agency adjudicators must

offer “‘specific, cogent reasons’” for doing so. Orellana v. Barr,

(4th

Cir. 2019) (quoting Tassi,

) (cleaned up). Because the IJ disregarded

“relevant evidence” and “the BIA adopted the IJ’s flawed conclusion,” it is my view that

we are “constrained to vacate a portion of the agency’s asylum decision.” Portillo Flores

v. Garland,

, 636 (4th Cir. 2021).

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As the majority correctly notes, there is, of course, no categorical requirement that

the agency “discuss every piece of evidence in the record.” Ai Hua Chen v. Holder,

(4th Cir. 2014). But an agency must announce its decision “in terms sufficient to

enable a reviewing court to perceive that they have heard and thought” about that evidence.

Chen v. Garland,

, 572 (4th Cir. 2023) (citation and quotation marks omitted).

A “wholesale failure” to discuss or engage with country conditions reports “hampers our

ability to meaningfully review what was decided below” and, thus, constitutes reversible

error. Rodriguez-Arias v. Whitaker,

(4th Cir. 2019) (cleaned up).

III.

Immigration authorities here failed to sufficiently discuss highly probative

evidence, and the decisions must be vacated for the BIA to do so. See Orellana,

. The majority’s affirmance runs counter to this Court’s precedents that require

something more than a perfunctory acknowledgement of strong counterevidence by agency

adjudicators.

The majority bases its conclusion that the BIA adequately considered the reports

submitted into evidence by Petitioners on a summary statement by the BIA that they did

not find the reports persuasive. Majority Op. at 16–17. The IJ’s oral decision does not

even mention the existence of country conditions evidence, only that it found Cony and

Bryan to have “testified credibly” and that their testimony was “largely consistent with

their written applications and affidavits, as well as with the supportive corroborative

evidence.” J.A. 222. And the BIA only cursorily mentioned the existence of country

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conditions evidence, stating that they were “unpersuaded by the respondent’s assertion that

general country evidence establishes the Salvadoran’s inability or unwillingness to protect

him and his wife from gang violence.” J.A. 612. But because the BIA cited case-specific

evidence that showed police could secure an area from MS-13 for a matter of hours or

appear at a murder scene after said murder occurred in broad daylight, the majority holds

that the BIA need not have discussed any of the country conditions reports presented in

this case. Majority Op. at 16–17. The majority fails to cite a single case in which we

denied a petition for review where immigration authorities so summarily treated similar

country conditions evidence, let alone in a case such as this where the evidence provided

is so strong.

This Court has repeatedly emphasized that “State Department Country Reports [are]

. . . the definitive word in asylum cases.” See Portillo Flores, 3 F.4th at 650 (Quattlebaum,

J. dissenting) (citing Ai Hua Chen,

). The failure to consider these reports

is grounds for reversal, even when the reports are not introduced into evidence. See

Hernandez-Avalos v. Lynch,

, 952–53 (4th Cir. 2015) (reversing BIA where

it failed to take notice of and consider the State Department’s Human Rights Report);

compare Nunez-Gonzalez v. Garland, No. 22-2276,

, at *5 (4th Cir.

Aug. 12, 2024) (affirming IJ and BIA after both opinions considered and rejected the

country conditions reports). Given that that IJ had these reports, yet failed to discuss them

in any respect, its factual finding cannot be upheld.

Further, the failure to discuss or even mention the report of Dr. Herschberg similarly

and independently requires vacatur. We have no indication of the reasoning that the BIA 25 USCA4 Appeal: 21-2367 Doc: 77 Filed: 02/19/2025 Pg: 26 of 28

or IJ used in rejecting this evidence. In fact, all we do have is the IJ’s determination that

Dr. Herschberg is exceptionally well-qualified. J.A. 256. The IJ and BIA’s failure to

address and engage with his report “hampers our ability to meaningfully review what was

decided below” and requires remand for the BIA to explain its wholesale rejection of this

compelling evidence. Rodriguez-Arias,

.

The majority attempts to distinguish our prior cases in which we emphasized that

agency adjudicators must consider and reject credible evidence that is directly contrary to

their conclusion. See Ai Hua Chen,

; see also Orellana,

.

The majority cites Nolasco v. Garland for the proposition that an agency need not explicitly

mention the entirety of the record.

, 190 (4th Cir. 2021). While this is an

accurate statement of the law, the majority extends the rule that an agency need not discuss

each and every piece of evidence into a rule permitting the discussion of no evidence at all

so long as the existence of evidence is mentioned. Majority Op. 16–18. Nolasco does not

support such a contortion of the law.

In Nolasco, we noted with approval that the BIA discussed several pieces of country

conditions evidence provided by petitioner and rejected the assertion that the BIA must

provide a detailed discussion of every piece of that evidence. Id. at 191. We dismissed the

petitioner’s aspersions that the IJ ignored country conditions evidence by highlighting the

evidence that the IJ explicitly did consider, including “the IJ’s specific reference to country

reports, the State Department Report, and articles showing the problems between the gangs

and the country’s police.” Id. at 189 (quotation marks omitted). We also noted that “the

IJ and BIA specifically addressed some of the evidence he contends they ignored,” 26 USCA4 Appeal: 21-2367 Doc: 77 Filed: 02/19/2025 Pg: 27 of 28

including “the content of both the State Department Report and the Intercept article about

a Barrio 18 member who attempted to leave the gang.” Id. at 189–91. Because the BIA

considered significant portions of the country conditions evidence before it, we held that it

need not have explicitly discussed every single piece of evidence in the record.

By contrast, in the case before us, the BIA and IJ did not discuss any of the country

conditions evidence provided by the parties beyond one summary statement that it did not

find the evidence persuasive. Despite the majority’s best efforts, Nolasco does not support

the failure of the BIA and IJ to discuss any contradictory evidence in the record. Rather,

Nolasco emphasizes this Court’s requirement that IJs and the BIA must consider at least

some country conditions evidence when provided. Id. at 191 (“The agency abuses its

discretion when it arbitrarily ignores ‘legally significant evidence.’” (citing Rodriguez-

Arias,

)); see also Chen, 72 F.4th at 573. In Nolasco, the agency properly

engaged with the facts, and we left the decision below undisturbed. However, the failure

to consider any country conditions evidence here requires vacatur.

The majority’s rubber stamp of the almost nonexistent discussion of the country

conditions evidence in this case flies in the face of this Court’s precedents, in which we

have emphasized that when “contradictory evidence is strong enough,” an agency must

“account for it in a meaningful way.” Ai Hua Chen,

; see also Orellana,

(explaining that to “arbitrarily ignore . . . unrebutted, legally significant

evidence and focus only on the isolated instances where police did respond constitutes an

abuse of discretion.”) (cleaned up). The majority is correct the BIA and IJ did not

necessarily “ignore” the existence of counterevidence, Majority Op. at 18, as both opinions 27 USCA4 Appeal: 21-2367 Doc: 77 Filed: 02/19/2025 Pg: 28 of 28

did acknowledge the existence of evidence that did not support their conclusion. However,

neither discussed that evidence in any respect, not even stating what the evidence consisted

of. This Court has never allowed agencies to avoid review with a one-sentence summary

rejection of all counterevidence, and, in my view, the line between the BIA’s rejection of

the country conditions evidence here and completely ignoring that evidence is quite thin.

I cannot join the majority in breaking this new and dangerous ground in the review of

agency adjudication.

IV.

The failure of any immigration authority to mention even a single piece of country

conditions evidence––let alone to meaningfully engage with this evidence––compels

remand for the BIA to evaluate the strong evidence presented in this case.* If allowed to

stand, the majority’s opinion would dramatically curtail the scope of our already limited

review of immigration adjudication. Therefore, I respectfully dissent.

* Because the majority does not reach the question of Bryan’s nexus argument or the portions of his ineffective assistance claim beyond willingness and ability to control, I do not discuss these issues herein. However, I would grant the Petition based on Bryan’s ability to show prejudice from the failure to file an application on Cony’s behalf. 28