Lopez v. Garland, 19-72209

ELMER GIOVANNY ROGEL LOPEZ, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.

No. 19-72209

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted: April 12, 2021

June 3, 2021

NOT FOR PUBLICATION

Agency No. A206-498-052

MEMORANDUM^*

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

Argued and Submitted April 12, 2021 Pasadena, California

Before: PAEZ and VANDYKE, Circuit Judges, and KORMAN,^** District Judge.

Partial Dissent by Judge VANDYKE

Petitioner Elmer Giovanny Rogel Lopez, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals' ("BIA") decisions affirming the Immigration Judge's ("IJ") denial of his claims for asylum,withholding of removal, and protection under the Convention Against Torture ("CAT"). We have jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law and review for substantial evidence the agency's factual findings. Diaz-Reynoso v. Barr, 968 F.3d 1070, 1076 (9th Cir. 2020). For the reasons explained below, we grant the petition and remand.

1. Rogel Lopez first argues that he is eligible for asylum and withholding of removal because he was persecuted on account of his "membership in a particular social group." 8 C.F.R. § 1208.13(b)(1) (asylum); 8 U.S.C. § 1231(b)(3)(A) (withholding of removal). To establish eligibility on that basis, a petitioner must show "that the group is: '(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.'" Diaz-Reynoso, 968 F.3d at 1077 (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014)). Reviewing de novo the cognizability of a proposed particular social group, id. at 1076, we conclude that the IJ and BIA erred by misconstruing Rogel Lopez's proposed particular social group.

The IJ and BIA characterized Rogel Lopez's proposed group as "men who are not gang members in El Salvador who witnessed gang crimes and are persecuted by such gang members for the belief that they reported the crimes." But Rogel Lopez argued before the agency that he was persecuted on account ofhis imputed membership in a slightly different group, one defined as Salvadoran men who are not gang members, witnessed a gang crime in El Salvador, and reported that crime to the police. See Pirir-Boc v. Holder, 750 F.3d 1077, 1083 n.6 (9th Cir. 2014) (noting that the BIA has recognized imputed membership in a particular social group as a proper basis for asylum). Because the agency considered the wrong social group, "and neither the BIA nor the Ninth Circuit is authorized to undertake the initial factfinding necessary to determine the viability of the group," we remand to the IJ to consider Rogel Lopez's proposed group in the first instance. Alanniz v. Barr, 924 F.3d 1061, 1069 (9th Cir. 2019). On remand, the agency must consider immutability, particularity, and social distinction in light of the proper particular social group.

"Because [Rogel Lopez]'s claim for withholding of deportation was denied solely on the basis of his failure to satisfy the burden required for asylum, that claim is also remanded." Pirir-Boc, 750 F.3d at 1084.¹

2. Next, Rogel Lopez argues that the BIA's denial of his CAT claim was not supported by substantial evidence. We agree and remand with instructions for the agency to grant withholding of removal under CAT.

Under CAT's implementing regulations, "an applicant bears the burden of establishing that [he] will more likely than not be tortured with the consent or acquiescence of a public official if removed to [his] native country." Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1183 (9th Cir. 2020). "Torture is defined as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining . . . information or a confession, [or] punishing him . . . for an act he . . . has committed or is suspected of having committed . . . ." 8 C.F.R. § 1208.18(a)(1). Mental pain or suffering alone can constitute torture if the petitioner experiences "prolonged mental harm caused by . . . [t]he threat of imminent death." 8 C.F.R. § 1208.18(a)(4); Xochihua-Jaimes, 962 F.3d at 1183.

When the agency evaluates a CAT claim, it "must consider all relevant evidence; no one factor is determinative." Xochihua-Jaimes, 962 F.3d at 1183 (citation omitted). "Relevant evidence includes: '(i) Evidence of past torture inflicted upon the applicant; [and] (ii) Evidence that the applicant could relocate to a part of the country of removal where he or she is not likely to be tortured . . . .'" Id. at 1183-84 (quoting 8 C.F.R. § 1208.16(c)(3)). "The testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration." 8 C.F.R. § 1208.16(c)(2).

Substantial evidence does not support the BIA's determination that RogelLopez failed to establish that he would more likely than not be tortured with the consent or acquiescence of a public official if he is removed to El Salvador.² See Xochihua-Jaimes, 962 F.3d at 1183. The BIA concluded that Rogel Lopez (1) did not experience past torture, (2) "could reasonably relocate within El Salvador" to avoid future torture, and (3) failed to show government acquiescence because "even if there is corruption at the local police level, [Rogel Lopez] has not shown that police at a higher level would not intervene on his behalf." We address those conclusions in turn.

First, the evidence compels the conclusion that Rogel Lopez was a victim of past torture. See Nuru v. Gonzales, 404 F.3d 1207, 1217 (9th Cir. 2005) ("Past torture is the first factor we consider in evaluating the likelihood of future torture . . . ."). Past torture is highly relevant to the likelihood of future torture because when "an individual has been tortured and has escaped to another country, it is likely that he will be tortured again if returned," unless circumstances "have changed significantly . . . with respect to the particular individual." Id. at 1217-18. We have previously held that being "beaten severely and threatened with death at gunpoint" constituted "a past instance of torture." Xochihua-Jaimes, 962 F.3d at 1185.

The severe beatings and threats of imminent death that Rogel Lopez suffered over a two-day period show that he suffered past torture. 8 C.F.R. §§ 1208.18(a)(1), (a)(4)(iii). Rogel Lopez was initially handcuffed and kidnapped by two police officers who demanded that he confess to reporting a gang crime to the police. After transporting Rogel Lopez to an isolated location, the officers threatened him with a gun, placed the gun against his head and inside his mouth, and fired shots next to his head. The officers also beat him repeatedly with a rifle. Rogel Lopez "kept telling them that [he] didn't do it." The officers discussed whether to kill Rogel Lopez, but instead chose to deliver him to the gang members as a "gift." There, Rogel Lopez was tied up and blindfolded. For about three hours, the gang members kicked him in the ribs, beat his face, and repeatedly held a knife to his neck.³ Blindfolded and bleeding from his nose, Rogel Lopez was left to wait for another gang member to arrive so that the gang could decide which person would ultimately kill him. The wait lasted approximately twenty-four hours. During that time, Rogel Lopez "felt that any minute, any second, that they would come in, they would kill me." He believed he was going to die. This evidence compels a finding that Rogel Lopez suffered past torture. See Xochihua-Jaimes, 962 F.3d at 1185.

Second, the evidence compels the conclusion that Rogel Lopez could notsafely relocate within El Salvador. See id. at 1187. The CAT standard does not require a petitioner to show that internal relocation is impossible. Maldonado v. Lynch, 786 F.3d 1155, 1164 (9th Cir. 2015) (en banc). To the contrary, "it will rarely be safe to remove a potential torture victim on the assumption that torture will be averted simply by relocating him to another part of the country." Nuru, 404 F.3d at 1219. In Arrey v. Barr, 916 F.3d 1149 (9th Cir. 2019), we held "that substantial evidence did not support the Board's determination that [petitioner] . . . could safely relocate within Cameroon" where the record established that the petitioner's assailant found her while she was hiding in a different city. Id. at 1161.

Rogel Lopez tried and failed to relocate three times, in three different cities, before fleeing the country. Because Rogel Lopez cannot safely relocate within El Salvador, see id., this factor "weighs in favor of granting [him] relief." Xochihua-Jaimes, 962 F.3d at 1187.⁴

Third, the evidence compels the conclusion that Rogel Lopez's torture wasinflicted by or with the acquiescence of a public official. 8 C.F.R. § 1208.18(a)(1). We have repeatedly held that a petitioner "need not show that the entire foreign government would consent to or acquiesce in his torture"; rather, he "need show only that 'a public official' would so acquiesce." Madrigal v. Holder, 716 F.3d 499, 509 (9th Cir. 2013) (quoting 8 C.F.R. § 208.18(a)(1)); see also Barajas-Romero v. Lynch, 846 F.3d 351, 363 (9th Cir. 2017) ("The BIA's 'rogue official' rationale is inconsistent with circuit law."). Furthermore, a petitioner need not "show the 'acquiescence' of the government when [his] torture was inflicted by public officials themselves." Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1079 (9th Cir. 2015) (quoting 8 C.F.R. § 1208.18(a)(1)).

Rogel Lopez was kidnapped and tortured by two police officers who drove a patrol car and wore police badges. There is no dispute that both officers were public officials. Thus, Rogel Lopez has established that he "was subject to torture at the hands of local officials." Id. at 1080. Even if Rogel Lopez's suffering rose to the level of torture only when considering the officers' actions in combination with those of the gang...