FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT J.R., No. 18-72812 Petitioner, Agency No. v. A216-271-552 WILLIAM P. BARR, Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted May 6, 2020 Seattle, Washington Filed September 11, 2020 Before: Andrew J. Kleinfeld, William A. Fletcher, and Johnnie B. Rawlinson, Circuit Judges. Opinion by Judge W. Fletcher; Dissent by Judge Rawlinson 2 J.R. V. BARR SUMMARY* Immigration Granting JR’s petition for review of the Board of Immigration Appeals’ decision affirming an immigration judge’s denial of asylum and withholding of removal, and remanding, the panel held that substantial evidence did not support the Board’s conclusion that the El Salvadoran government was both able and willing to control the Mara-18 gang whose members attacked JR and killed his son. The panel held that the record before the IJ and Board compelled the conclusion that, despite initial responsiveness to JR’s complaints, the police were unable, and then unwilling, to protect JR and his family from the Mara-18 gang. The panel recounted that after a gang member cut off two of JR’s fingers, and the gang member was briefly imprisoned after JR reported the crime, gang members shot JR seven times, causing him to lose one of his lungs. A few months later, the gang murdered JR’s son at home, and after reporting the murder and agreeing to cooperate with prosecutors, JR received a death threat from the local “boss” of the gang. Although the government provided protection before JR gave his testimony, it withdrew that protection after he testified. Soon thereafter, JR and his family fled the country. The panel concluded that, given its withdrawal of protection, the El Salvadoran government was, in fact, “unwilling to protect” JR. * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. J.R. V. BARR 3 The panel explained that the undisputed factual record before the IJ and Board reflected actual deadly violence that the government was, during certain periods, unable to control, and threats of additional deadly violence that the government was entirely unwilling to control after JR testified. The panel stated that this was enough to show government unwillingness and inability to control the gang. The panel noted that the law does not require applicants to wait until gang members carry out their deadly threats before they are eligible for asylum. Because the Board did not reach the questions of whether JR was a member of a particular social group, or whether he suffered harm rising to the level of persecution, the panel remanded for the Board to address those issues in the first instance. Judge Rawlinson dissented reluctantly because, in her view, the stringent standard of review under which this court must resolve these cases does not permit the result reached by the majority. Judge Rawlinson wrote that the majority did not, and cannot, cite a case ...
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