Iris Rodriguez de Palucho v. Merrick B. Garland

RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 22a0212p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ┐ IRIS LISSETH RODRIGUEZ DE PALUCHO; C. B. P. R.; │ JOSE MIGUEL PALUCHO LARA; M. A. P. R., │ Petitioners, > No. 21-3611 │ │ v. │ │ MERRICK B. GARLAND, Attorney General, │ Respondent. │ ┘ On Petition for Review from the Board of Immigration Appeals. Nos. A 209 848 963; A 209 848 964; A 213 139 785; A 213 139 786. Decided and Filed: September 9, 2022 Before: SILER, CLAY, and MURPHY, Circuit Judges. _________________ COUNSEL ON BRIEF: Kirby J. Fullerton, CARMANFULLERTON, PLLC, Lexington, Kentucky, for Petitioners. Matthew A. Spurlock, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. MURPHY, J., delivered the opinion of the court in which SILER, J., joined. CLAY, J. (pp. 15–24), delivered a separate dissenting opinion. _________________ OPINION _________________ MURPHY, Circuit Judge. Nobody would dispute that El Salvador has a serious problem with violence from private gangs like MS-13. That gang’s repeated crimes—including robbery, extortion, and death threats—drove Iris Lisseth Rodriguez de Palucho; her husband, Jose Miguel Palucho Lara; and their two children to seek asylum and withholding of removal in the United No. 21-3611 Rodriguez de Palucho, et al. v. Garland Page 2 States. Yet those remedies have long been interpreted to contain a “state-action” element, meaning that immigrants must show that they fear violence in their countries from the government or from parties that the government is unable or unwilling to control. The Board of Immigration Appeals denied relief to Iris and Jose because they failed to show that the Salvadoran government was unable or unwilling to control MS-13. Iris and Jose now claim that the Board overlooked reports about the general conditions in El Salvador. They also argue that these reports would compel any reasonable factfinder to conclude that the Salvadoran government could not protect them from the gang. This case thus requires us to consider when the Board’s failure to expressly discuss certain evidence compels a remand for it to reconsider factual findings. It also requires us to consider when a country’s general conditions can permit a presumption that its government cannot protect its populace from private harm. Ultimately, because the Board recited the proper legal standards and because we must defer to its factual findings, we deny the petition for review. I Iris and Jose, natives of El Salvador, lived with their two small children in Usulután, a part of the country that they believed to be controlled by MS-13. They ran a small retail business (offering ice cream, cellphone minutes, and money transfers) and a mill (making flour for tortillas). Jose also sold medicine for a separate company. Iris and Jose’s business unfortunately brought them to the attention of MS-13. In May 2016, a gang member called Jose’s cellphone, demanded $800, conveyed details about Jose’s family, and threatened to kill the family if Jose did not pay. After Jose sent the gang $200 through …

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