Carmen Salazar-Velasquez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 9, 2022
• Docket: 17-70462
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAR 9 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CARMEN FRANCISCO SALAZAR- No. 17-70462 VELASQUEZ, Agency No. A070-095-306 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted February 11, 2022** Phoenix, Arizona

Before: MURGUIA, Chief Judge, GRABER, Circuit Judge, and L. BURNS,*** District Judge. Concurrence by Judge BURNS.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Larry A. Burns, United States District Judge for the Southern District of California, sitting by designation. Petitioner Carmen Francisco Salazar-Velasquez, a native and citizen of

Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”)

denial of his applications for asylum and withholding of removal. He claims past

persecution and a well-founded fear of future persecution, on account of his

political opinion. The agency ruled that the harm suffered by Petitioner did not

rise to the level of past persecution. Reviewing for substantial evidence, Reyes v.

Lynch, 842 F.3d 1125, 1137 (9th Cir. 2016), we conclude that the record

“compel[s]” the contrary conclusion, 8 U.S.C. § 1252(b)(4)(B). Accordingly, we

grant the petition and remand for the BIA to reconsider, applying the presumption

that Petitioner has a well-founded fear of future persecution. 8 C.F.R.

§ 208.13(b)(1).

Petitioner belonged to and was a local officer (General Secretary) in a

political party, the UCN. Other UCN leaders were receiving death threats from

political rivals at the time. Heavily armed men came to one of the UCN’s

meetings, asked for Petitioner by his title, and demanded to know his name and

whereabouts. Although the men left when they did not obtain the information that

they sought, they returned a few weeks later, again bearing arms, and repeated the

same demand. This time, when their demand was not satisfied, they kidnapped and

severely beat one of Petitioner’s UCN associates to try to obtain Petitioner’s name,

2 and they said that they would find and kill the UCN General Secretary. Shortly

thereafter, the same men learned Petitioner’s identity. They went to Petitioner’s

aunt’s house in a distant province, where he was hiding, and, while brandishing

firearms, threatened to kill Petitioner. He fled the country, but the threats to kidnap

and kill Petitioner and his family continued. The immigration judge expressly

found Petitioner to be credible.

Death threats alone can constitute persecution, depending on the degree of

harm inflicted. Canales-Vargas v. Gonzales, 441 F.3d 739, 743–44 (9th Cir.

2006). Here, Petitioner testified to intense fear and intimidation that he and family

members suffered. In cases similar to this one, we have concluded that a finding of

past persecution was compelled. See, e.g., Jahed v. INS, 356 F.3d 991, 998–99

(9th Cir. 2004) (so concluding where a political opponent threatened to extort the

petitioner in circumstances where imprisonment and death were likely to result

from noncompliance); Ruano v. Ashcroft, 301 F.3d 1155, 1159–60 (9th Cir. 2002)

(so concluding where the petitioner, an Assistant General Secretary for UCN,

received repeated and menacing death threats); Gonzales-Neyra v. INS, 122 F.3d

1293, 1295–96 (9th Cir. 1997) (so concluding where the petitioner received one

death threat and his family members were confronted and intimidated), as amended

on denial of reh’g, 133 F.3d 726 (9th. Cir. 1998). Death threats can constitute past

3 persecution even when communicated to third parties and even when those making

the threats do not know the name of their target. See Mashiri v. Ashcroft, 383 F.3d

1112, 1120 (9th Cir. 2004) (concluding that a single “specific and menacing death

threat” was “strong evidence of persecution” despite the threat’s not naming the

petitioner or being communicated face-to-face), as amended (Nov. 2, 2004);

Salazar-Paucar v. INS, 281 F.3d 1069, 1071, 1074–75 (9th Cir. 2002) (concluding

that the evidence compelled finding of past persecution after the petitioner received

death threats through a third party). Moreover, harm to a petitioner’s close

relatives, friends, or associates is relevant to a finding of past persecution if the

harm is part of a pattern closely tied to the petitioner himself. Korablina v. INS,

158 F.3d 1038, 1043–44 (9th Cir. 1998). Those criteria are met here.

PETITION GRANTED; REMANDED.

4 FILED MAR 9 2022 BURNS, D.J., concurring. MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

I agree that the record establishes Petitioner suffered past persecution. The

immigration judge therefore should have presumed that he maintains a well-

founded fear of future persecution. See 8 C.F.R. § 208.13(b)(1). But I write

separately to explain that, in my view, the record evidence is sufficient to rebut that

presumption.

An immigration judge may deny a petition for asylum despite evidence of

past persecution if the judge finds by a preponderance of the evidence that “[t]here

has been a fundamental change in circumstances such that the applicant no longer

has a well-founded fear of persecution in the applicant’s country of nationality.”

8 C.F.R. § 208.13. The record here contains ample evidence of such fundamental

change. First, the incidents that gave rise to Petitioner’s fear of persecution

occurred more than 30 years ago. Second, those incidents arose out of Petitioner’s

affiliation with a political party that isn’t influential anymore and commands little,

if any, public attention in modern day Guatemala. Third, Petitioner’s mother, two

brothers, aunt, and mother-in-law have all remained in Guatemala without being

harmed, threatened, or even contacted by the people who were looking for

Petitioner back in March 1991. These circumstances undercut the reasonableness

1 of any claim that Petitioner faces a present threat of persecution in his home

country.

Remand is appropriate here because the immigration judge was bound to

presume that Petitioner’s past persecution gave rise to a well-founded fear of future

persecution. But the presumption is rebuttable, not conclusive. Petitioner’s past

persecutors (if they’re still around after three decades) have apparently lost interest

in him. That’s enough to rebut the presumption.