Espinoza-Ochoa v. Garland

89 F.4th 222

Juan Jose ESPINOZA-OCHOA, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.

No. 21-1431

United States Court of Appeals, First Circuit

December 27, 2023

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Randy Olen for petitioner.

Robert D. Tennyson, Jr., Trial Attorney, Office of Immigration Litigation, with whom Bryan Boynton, Acting Assistant Attorney General, Civil Division, Paul Fiorino, Senior Litigation Counsel, and Nancy E. Friedman, were on brief, for respondent.

Before Gelpí, Howard, and Rikelman, Circuit Judges.

RIKELMAN, Circuit Judge.

After a gang stole livestock from his farm in Guatemala and he reported the theft to the police, Juan Jose Espinoza-Ochoa began receiving death threats. The threats continued even after he and his family moved repeatedly. Fearing for his safety and the well-being of his family, Espinoza-Ochoa fled to the United States, where he was apprehended and applied for asylum and withholding of removal based on his status as a landowning farmer. An Immigration Judge ("IJ") found him credible and concluded that his experiences at the hands of the gang and the police rose to the level of persecution. But the IJ nevertheless denied Espinoza-Ochoa's application on the ground that he failed to establish that the persecution was motivated by a protected ground. The Board of Immigration Appeals ("BIA") affirmed, and Espinoza-Ochoa petitioned this court for review.

His petition identifies two errors in the BIA's analysis. First, Espinoza-Ochoa argues the BIA wrongly rejected his particular social group ("PSG") as impermissibly circular simply because he referred to the persecution he had experienced in describing his PSG. Second, Espinoza-Ochoa argues that he established a causal nexus between the persecution he endured and his PSG and that the BIA erred by concluding otherwise. We agree that Espinoza-Ochoa's proffered PSG is not circular. A review of a PSG for legal validity must be based on a substantive analysis, not a superficial "quick look" at the words used. Further, we conclude that the BIA erred by failing to conduct a mixed-motive analysis in evaluating whether Espinoza-Ochoa's PSG was "one central reason" for his persecution. We therefore grant the petition, vacate the decision of the BIA, and remand for further proceedings.

I. BACKGROUND

A. Relevant Facts¹

Juan Jose Espinoza-Ochoa was born in the Retalhuleu region of Guatemala and resided there until he fled to the United States in 2016. In 2004, Espinoza-Ochoa acquired a corn and cattle farm, where he worked and lived with his wife and children. One morning in February 2016, Espinoza-Ochoa discovered that a fence on his property had been cut and that two of his cows were missing. Vehicle tracks on the property suggested someone had stolen them. He filed a complaint with the police, who promised to investigate. But after a day passed and the police had done nothing, he and two friends began to search for the cattle on their own.

About eight days later, the group spotted one of the missing cows on land about forty minutes away. Espinoza-Ochoa recognized the cow because he had branded it with his initials. Once again, he called the police for help, and they said they would arrive within forty minutes. While he waited, Espinoza-Ochoa received repeated phone calls from an unknown caller asking for his location, which he feared were an attempt to find and harm him.

After several hours, the police arrived, as well as the owner of the property, whom Espinoza-Ochoa recognized as a member of a gang. The police initially resisted taking any action but faced growing pressure from friends and locals who had gathered at the scene. When the property owner could not prove that he had purchased the cow lawfully, the police arrested him. Then, amid the commotion, a child ran up to the suspect, telling him the "boss is saying you don't have to say anything, he's going to take you out of jail." Espinoza-Ochoa accompanied the police to the station, where he was questioned and required to produce personal documents.

The IJ credited Espinoza-Ochoa's testimony that he received multiple threats after he found his stolen cow. At least one threat came from the police: During Espinoza-Ochoa's questioning at the police station, an officer told him that the suspect was the officer's brother and warned Espinoza-Ochoa to "be careful wh[at] you are doing." After the events at the police station, a gang left threatening notes on the door of Espinoza-Ochoa's home. As Espinoza-Ochoa testified, he took these threats seriously because local gangs had previously threatened and killed farm owners and their relatives after stealing their livestock in order to intimidate the landowners into abandoning their land or selling it at a depreciated price. He said he feared even letting his children go to school.

Amid the threats, Espinoza-Ochoa decided to abandon his farm and take his wife and children to his father's home in a town about an hour away. But the gang caught wind of Espinoza-Ochoa's movements and followed him to his father's town too. He and his family relocated again, this time to his sister's house, but Espinoza-Ochoa knew the gang was "still looking for [him]," and "knew they wouldn't stop." So Espinoza-Ochoa moved his family to yet another relative's house, and in early April 2016, he left Guatemala for the United States. Gang members still made death threats against Espinoza-Ochoa's wife, who remained in Guatemala with their young children, even after he had left the country. His family was forced to relocate two more times and remained in hiding at the time of his testimony before the IJ in 2019.

B. Legal Proceedings

Espinoza-Ochoa entered the United States near Sasabe, Arizona on May 1, 2016. He was detained by the Department of Homeland Security and sat for a credible fear interview. After Espinoza-Ochoa explained many of the facts detailed above, an asylum officer found him credible. He was then placed in removal proceedings and served with a notice to appear.

In the Boston Immigration Court, Espinoza-Ochoa applied for asylum based on membership in a PSG as well as withholding of removal and protection under the Convention Against Torture ("CAT"). In his application and during his testimony before the IJ, Espinoza-Ochoa recounted the theft of his livestock and the threats he received after he turned to the police. Three witnesses also provided corroborating testimony at a hearing in March 2019.

The IJ found that Espinoza-Ochoa was "a credible witness" after "observ[ing] [his] candor[,] . . . demeanor and responsiveness on the witness stand." Specifically, the IJ concluded that Espinoza-Ochoa was "truthful" about the harm he experienced, including that a gang member stole his livestock, that he received "credible threats of death from gang member[s] who he knew were capable of carrying out such threats," and that the gang members "acted with impunity" from the police. The IJ further found that "these threats" rose to the level of persecution.

Still, the IJ denied Espinoza-Ochoa's request for asylum for two reasons. First, the IJ concluded that his social group -- "land-owning farmer, who was persecuted for simply holding [the] position of farmer and owning a farm, by both the police and gangs in concert" -- was "impermissibly circular" because it "does not exist independently of harm." According to the IJ, Espinoza-Ochoa's use of the words "who was persecuted" in describing his PSG meant the social group was "defined by the harm that [he] . . . received" and therefore was legally invalid.

Second, the IJ decided that Espinoza-Ochoa's persecution bore "no nexus to any enumerated [protected] ground" for seeking asylum because his status as a landowning farmer lacked a causal link to either the theft of the cattle or the death threats that followed. In the IJ's view, the "theft of livestock to force [Espinoza-Ochoa] to close his farm" was "generalized criminal activity" motivated by the gang's desire to "eventually take over the farmland and increase their profit and power in the area." Relying on since-vacated authority, the IJ explained that "generalized criminal activity . . . would not generally be a basis for asylum." See Matter of A-B-, 27 I. & N. Dec. 316, 317 (A.G. 2018), vacated, 28 I. & N. Dec. 307 (A.G. 2021). The IJ also concluded that the death threats, though credible, lacked a nexus to Espinoza-Ochoa's social group. The threats were driven by "revenge" for "report[ing] [the gang] to the police," the IJ concluded, not by a desire to harm landowning farmers. The IJ accordingly denied Espinoza-Ochoa's asylum application and his application for withholding of removal.²

The BIA "adopt[ed] and affirm[ed]" the IJ's decision that, "even though [Espinoza-Ochoa] demonstrated the threats he received in Guatemala rose to the level of harm to constitute persecution," he was ineligible for asylum because "he did not demonstrate the persecution was on account of a protected ground." In adopting the IJ's legal analysis on circularity, the BIA agreed that Espinoza-Ochoa's PSG "is not . . . cognizable . . . because it does not exist independently from the harm [he] suffered." The agency also agreed that Espinoza-Ochoa "did not demonstrate a nexus to any enumerated ground" and that "the theft of two of [his] cattle and subsequent threats" were "criminal activities."³ Thus, it affirmed the IJ's denials of withholding of removal and CAT protection as well. Espinoza-Ochoa timely petitioned this court for review.

II. STANDARD OF REVIEW

When the BIA adopts the IJ's decision but adds its own gloss, we "review the decisions of both the BIA and the IJ" together. Aldana-Ramos v. Holder, 757 F.3d 9, 14 (1st Cir. 2014). We review the agency's legal conclusions de novo with "some deference to its interpretations of statutes and regulations related to immigration matters." Id. (citing Matos-Santana v. Holder, 660 F.3d 91, 93 (1st...