Velasquez-Lopez v. Garland

CUPERTINO VELASQUEZ-LOPEZ, AKA Luis Daniel Perez-Marroquin, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.

No. 17-70218

United States Court of Appeals, Ninth Circuit

November 17, 2022

NOT FOR PUBLICATION

Argued and Submitted October 4, 2022 Pasadena, California

On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A206-910-836

Before: FORREST and SANCHEZ, Circuit Judges, and FREUDENTHAL ^[**] District Judge.

MEMORANDUM ^[*]

Partial Dissent by Judge FORREST Cupertino Velasquez-Lopez ("Velasquez-Lopez") petitions for review of the Board of Immigration Appeals's ("Board") decision affirming the Immigration Judge's ("IJ") denial of withholding of removal and protection under the Convention Against Torture ("CAT"). We have jurisdiction. 8 U.S.C. § 1252.

Velasquez-Lopez, a native and citizen of Guatemala, is an indigenous Mayan who lived and worked on the Nueva Linda Ranch. When a fellow indigenous worker sought benefits but was instead "disappeared," Velasquez-Lopez and other indigenous workers and their families protested his disappearance and the failure of Guatemalan authorities to hold the ranch's Spanish-descendant owner to account. The protesters called themselves "Junkanil," or "united to fight for justice." The ranch owner hired the National Civil Police to forcibly remove the protestors, some of whom were squatting on the land. The Police burned down protesters' homes and shot at Velasquez-Lopez and others, killing nine. Velasquez-Lopez survived and fled to Mexico.

The Board did not dispute the IJ's finding that Velasquez-Lopez's testimony was true. Instead, the Board affirmed the IJ's finding that Velasquez-Lopez did not experience past persecution because he faced an "aggressive eviction," not "ethnic . . . annihilation." The IJ and Board alternatively found, assuming past persecution, that evidence of changed circumstances rebutted the resulting presumption of future persecution, and that Velasquez-Lopez had not carried his burden to show directly that future persecution or torture was more likely than not.

We grant the petition in part, deny the petition in part, and remand.

1. The Attorney General must withhold removal of a noncitizen whose life or freedom would be threatened because of his or her race, religion, nationality, membership in a particular social group ("PSG"), or political opinion. Barajas-Romero v. Lynch, 846 F.3d 351, 356 (9th Cir. 2017); 8 U.S.C. § 1231(b)(3); 8 C.F.R. § 1208.16(b) (2016).^[1] Persecution is "because of" a protected ground when the ground is at least "a reason" for the harm. Barajas-Romero, 846 F.3d at 360 (rejecting prior standard that the ground be "one central reason").

Velasquez-Lopez testified he held political opinions and belonged to a PSG, described by the Board as "indigenous cattle workers in Nueva Linda subject to corrupt police and a specific ranch owner." We agree with Velasquez-Lopez that the evidence compels the conclusion he held a political opinion,^[2] and we need not disturb the Board's assumption he belonged to a PSG. The Government waived its challenge to both exhausted claims. See In re Lowenschuss, 67 F.3d 1394, 1402 (9th Cir. 1995); Ndom v. Ashcroft, 384 F.3d 743, 756 (9th Cir. 2004) (holding remand unwarranted for waived issues). The Government contends instead that the harm Velasquez-Lopez suffered did not rise to persecution. We disagree.

The evidence compels the conclusion that Velasquez-Lopez faced harm rising to persecution when he was "forced to flee from [his] home in the face of an immediate threat of severe physical violence or death." See Mendoza-Pablo v. Holder, 667 F.3d 1308, 1314 (9th Cir. 2012). Annihilation is not required to prove persecution. See id. at 1313. Threats or gunshots suffice-especially if similarly positioned persons are killed. See Salazar-Paucar v. INS, 281 F.3d 1069, 1074-75 (9th Cir.), amended on denial of reh'g, 290 F.3d 964 (9th Cir. 2002); Ruano v. Ashcroft, 301 F.3d 1155, 1160 (9th Cir. 2002). That many others personally faced the same threat of imminent death or harm does not change that Velasquez-Lopez did as well. See Kotasz v. INS, 31 F.3d 847, 851-55 (9th Cir. 1994).

The Government recognizes the Board erred in applying the "one central reason" standard to deny Velasquez-Lopez's withholding, and the parties accept remand is needed for the agency to reevaluate nexus under the "a reason" standard. See Garcia v. Wilkinson, 988 F.3d 1136, 1146-47 (9th Cir. 2021). We agree.^[3]

2. Past persecution triggers a presumption of future persecution, for which the Government bears the burden of rebutting. 8 C.F.R. § 1208.16(b)(1); Hanna v. Keisler, 506 F.3d 933, 940 (9th Cir. 2007). Although Velasquez-Lopez testified that a Nueva Linda protester was murdered in 2006 and attempts were made to kidnap or kill two other protesters in 2013 and 2014 after their names, like his, had been added to a blacklist of initial protesters, and although the Government offered no evidence supporting an alternative explanation for these attacks, the Board faulted Velasquez-Lopez for not linking the attacks to the original protest. In so doing, the Board erroneously burdened Velasquez-Lopez with proving continued persecution. See Vitug v. Holder, 723 F.3d 1056, 1061-62, 1065-66 (9th Cir. 2013); see also Njuguna v. Ashcroft, 374 F.3d 765, 772 (9th Cir. 2004) (holding Government "speculation" is not "substantial evidence"); Montoya-Ulloa v. INS, 79 F.3d 930, 932 (9th Cir. 1996) (holding clear probability of future persecution directly established where migrant remained on blacklist).

The dissent's cited authorities do not alter our conclusion. In all but two of the cases cited, the petitioner did not establish past persecution at all, and so was not entitled to a presumption of future persecution. See Sharma v. Garland, 9 F.4th 1052, 1060 (9th Cir. 2021); Loho v. Mukasey, 531 F.3d 1016, 1019 (9th Cir. 2008); Lanza v. Ashcroft, 389 F.3d 917, 933 (9th Cir. 2004). Those cases did not ask whether the Government met its burden to show changed circumstances and did not grapple with the burden-shifting error the IJ (and Board) committed here.

The final two cases cited support our reasoning for remanding. In Singh v. Holder, we considered a petition returned to us after we had granted an earlier petition. 753 F.3d 826, 830 (9th Cir. 2014). In that earlier petition, we held the evidence compelled a finding of past persecution and remanded for reconsideration of the petitioner's claims under a rebuttable presumption of future persecution. Id. (citing Singh v. Keisler, 249 Fed.Appx. 602, 603 (9th Cir. 2007) (mem.)). Similarly, in Garcia v. Wilkinson, we held that the IJ and Board erred in their analysis of past persecution, and remanded for reconsideration of those findings and any rebuttal. See 988 F.3d at 1148. We likewise order the same relief under the particular facts of this case.

The dissent's emphasis that it is the agency's purview to weigh conflicting evidence-citing Singh, 753 F.3d at 835-36-is misplaced. Where the agency has weighed the evidence using the wrong legal standard, we remand so the agency, not our court, can properly weigh the evidence. See INS v. Orlando Ventura, 537 U.S. 12, 17-18 (2002) (per curiam); Garcia, 988 F.3d at 1148; Lopez v. Ashcroft, 366 F.3d 799, 805-06 (9th Cir. 2004).

Regardless, we could not conclude here, as we did in Singh, that the agency gave individualized consideration of how changed country conditions would affect Velasquez-Lopez. See 753 F.3d at 834-36 (denying petition because agency rested its denial of relief on individualized evidence supporting an individualized determination of changed circumstances under the Government's burden). The Government here offered no specific evidence to contradict Velasquez-Lopez's testimony that blacklisted initial protesters were targeted when living openly in Guatemala in recent years. The IJ found Velasquez-Lopez credible throughout the proceedings, and even credited his testimony that these persons had been killed or attacked individually. Nevertheless, the agency required him to prove that persecution against other initial Nueva Linda protesters was ongoing. This was error. See id.; see also Vitug, 723 F.3d at 1066 (remanding where Government cited evidence of broad gay activism but not specific evidence gay persons were no longer individually targeted); Lopez, 366 F.3d at 805-06 (remanding where Board's changed conditions determination was not "sufficiently individualized" to rebut the presumption of a well-founded fear of persecution).

We furthermore cannot be certain that the IJ's (and Board's) errant "central reason" standard did not affect the agency's analysis of the likelihood of future persecution. We thus remand to the agency to weigh the evidence to determine whether the Government met its burden to rebut the presumption of future persecution by changed circumstances and, as relevant, whether Velasquez-Lopez alternatively showed future persecution directly.^[4] See, e.g., Hanna, 506 F.3d at 938-40; 8 C.F.R. § 1208.16(b)(1)-(2).

3. While Velasquez-Lopez faced "inhuman" acts, not all such acts "amount to torture." See 8 C.F.R. § 1208.18(a)(2). We see no error in the Board's denial of his CAT claim for failing to show that future torture was more likely than not. See Vitug, 723 F.3d at 1066.

We thus grant the petition for review as to Velasquez-Lopez's application for withholding of removal, deny the petition as to his application for CAT relief, and remand. On remand, the agency must decide whether "a reason" for the harm experienced by Velasquez-Lopez was his now-settled political opinion or membership in a PSG. We further direct the agency to revisit, as necessary, the rebuttal or direct...