Opinion
17-70218
11-17-2022
CUPERTINO VELASQUEZ-LOPEZ, AKA Luis Daniel Perez-Marroquin, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION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). 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").
All other citations to regulations are to the same year.
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, 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.
See, e.g., Mendoza Perez v. INS, 902 F.2d 760, 762-63 (9th Cir. 1990) (recognizing peasant activism as political); Zavala-Bonilla v. INS, 730 F.2d 562, 565-67 (9th Cir. 1984) (same for worker activism); Mamouzian v. Ashcroft, 390 F.3d 1129, 1134-35 (9th Cir. 2004) (same for anti-corruption activism).
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.
The existence of past harm and of a political opinion and PSG are settled and not to be revisited by the agency on remand except to enter findings consistent with this disposition. See Navas v. INS, 217 F.3d 646, 656, 662 (9th Cir. 2000).
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. See, e.g., Hanna, 506 F.3d at 938-40; 8 C.F.R. § 1208.16(b)(1)-(2).
Rebuttal of the presumption of future persecution by relocation was exhausted and waived.
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 showing of future persecution, consistent with this disposition and the appropriate standards and burdens.
PETITION GRANTED IN PART, DENIED IN PART; REMANDED.
FORREST, J., dissenting in part:
I respectfully disagree that the agency erred in concluding that Petitioner Cupertino Velasquez-Lopez is not entitled to withholding of removal, and I would deny his petition in full.
Even if Velasquez-Lopez suffered persecution during the 2004 incident on the Nueva Linda Ranch, his burden in seeking withholding of removal is to establish a "clear probability" that it is "more likely than not" that he will be persecuted if removed to Guatemala. Garcia v. Wilkinson, 988 F.3d 1136, 1146 (9th Cir. 2021); see also 8 U.S.C. § 1231(b)(3)(A). Having suffered past persecution gives rise only to a rebuttable presumption that future persecution may occur; the government can rebut this presumption by demonstrating a "change in circumstances" that undermines the likelihood of future persecution. 8 C.F.R. § 1208.16(b)(1)(i)(A). In doing so, the government must provide "an individualized analysis of how changed conditions will affect the specific petitioner's situation." Lopez v. Ashcroft, 366 F.3d 799, 805 (9th Cir. 2004) (internal quotations omitted) (quoting Borja v. INS, 175 F.3d 732, 738 (9th Cir. 1999) (en banc)). We review the agency's "factual findings regarding changed country conditions for substantial evidence." Id.
Here, the agency's finding that the government rebutted the presumption of future persecution is supported by the record. More than 10 years passed between the sole incident in 2004 on which Velasquez-Lopez bases his claims for relief and when he entered the United States and appeared before immigration authorities. In that time, protests related to the Nueva Linda Ranch continued without incident near the ranch and near the capital in Guatemala City. See Lanza v. Ashcroft, 389 F.3d 917, 934-35 (9th Cir. 2004) (finding "no reason" to believe that the petitioner's alleged persecutors "would still be interested in her" where the "persecution occurred more than ten years ago," and her brother, who was an active member of the same political party, continued to live in Argentina unharmed). The only other documented outbreak of violence against the protestors occurred in 2006 when protestors attempted to take over the Nueva Linda Ranch.
Velasquez-Lopez disputed that circumstances have materially changed, and he testified about criminal acts committed against three individuals involved in the 2004 incident explaining that, like him, these individuals' names were on a list of participants in the 2004 incident that was given to the ranch owner and the police. It is the agency's purview to weigh conflicting evidence. See Singh v. Holder, 753 F.3d 826, 835-36 (9th Cir. 2014). Here, the agency did not give weight to Velasquez-Lopez's testimony where the crimes he described occurred years after the 2004 incident, protests of the same nature as what occurred in 2004 have continued openly since the 2004 incident, and the crimes had no demonstrated link to the 2004 incident other than Velasquez-Lopez's testimony about the list. In other words, nothing in the record indicates that the crimes committed against these three individuals, who were among the 600 involved in the 2004 incident, were on account of their participation in the initial protest, or that Velasquez-Lopez would be similarly persecuted.
Contrary to the court's decision, the agency did not improperly shift the burden of proof from the government to Velasquez-Lopez or require him to prove that persecution against other protestors was "ongoing" in concluding there was no established link between the crimes he described and the 2004 incident. The only basis for the alleged crimes was Velasquez-Lopez's testimony. As stated, the agency must weigh conflicting evidence presented by the parties, which it did, and while the government bears the burden to demonstrate changed circumstances, it does not have to disprove every unsupported contrary allegation made by a petitioner. See, e.g., Singh, 753 F.3d at 835-37 (holding that the agency may afford less weight to the petitioner's unsubstantiated testimony in light of contrary country condition evidence to rebut the presumption of future persecution). In this case, the agency properly "identified the particular grounds on which [Velasquez-Lopez] claimed he might be persecuted and cited specific relevant evidence showing that persecution on those grounds is unlikely." Id. at 834.
Finally, the record establishes that Velasquez-Lopez has repeatedly visited Guatemala without harm after initially fleeing to Mexico, the first visit being only six months after the 2004 incident. See Sharma v. Garland, 9 F.4th 1052, 1066 (9th Cir. 2021) ("The ability to travel freely and to leave without hinderance undermines a reasonable fear of future persecution." (internal quotation marks and citation omitted)); Loho v. Mukasey, 531 F.3d 1016, 1017-18 (9th Cir. 2008) ("It is well established in this court that [a petitioner's] history of willingly returning to his or her home country militates against . . . a well-founded fear of future persecution"). Velasquez-Lopez's family, including his two children, also continue to live in Guatemala and have not been approached by the ranch owner or the authorities. On this record, substantial evidence supports the agency's conclusion that the government adequately rebutted the presumption that Velasquez-Lopez is likely to suffer future persecution due to changed circumstances. As such, Velasquez-Lopez is not entitled to withholding of removal, and I would deny his petition for review in full.
I respectfully dissent.
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
[**] The Honorable Nancy D. Freudenthal, United States District Judge for the District of Wyoming, sitting by designation.