Elmer Lopez-Rodriguez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 1, 2022
• Docket: 21-70418
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 1 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ELMER ROSENDO LOPEZ-RODRIGUEZ, No. 21-70418

Petitioner, Agency No. A206-082-632

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Argued and Submitted August 10, 2022 Seattle, Washington

Before: BERZON, CHRISTEN, and FORREST, Circuit Judges.

Petitioner Elmer Lopez-Rodriguez seeks review of the Board of Immigration

Appeals’ (BIA) denial of his applications for asylum, withholding of removal, and

relief under the Convention Against Torture (CAT). We have jurisdiction under 8

U.S.C. § 1252. We grant the petition in part, deny in part, and remand to the BIA for

further proceedings.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. “Where, as here, the BIA cites [Matter of Burbano, 20 I. & N. Dec. 872, 874

(BIA 1994)] and also provides its own review of the evidence and law, we review

both the IJ’s and the BIA’s decisions.” Cordoba v. Barr, 962 F.3d 479, 481 (9th Cir.

2020) (alteration in original) (citation omitted). “We review questions of law de

novo and the agency’s factual findings for substantial evidence.” Ruiz-Colmenares

v. Garland, 25 F.4th 742, 748 (9th Cir. 2022) (internal quotation marks and citation

omitted).

1. Asylum and Withholding of Removal. The BIA’s denial of Lopez-

Rodriguez’s applications for asylum and withholding of removal is supported by

substantial evidence. Lopez-Rodriguez failed to establish that his proposed social

group, “young male business owners who are targeted for gang membership based

on the gang wanting the resources and connections that the business owner has

access to, and who refuse to join the gang,” is cognizable. See Macedo Templos v.

Wilkinson, 987 F.3d 877, 882–83 (9th Cir. 2021) (affirming BIA’s determination

that “Mexican wealthy business owners who do not comply with extortion attempts”

was not a cognizable particular social group); Ochoa v. Gonzales, 406 F.3d 1166,

1170 (9th Cir. 2005) (affirming BIA’s determination that “business owners in

Colombia who rejected demands by narco-traffickers to participate in illegal

activity” was not a cognizable particular social group). The record presented does

not demonstrate that Lopez-Rodriguez’s proposed group is “composed of members

2 who share a common immutable characteristic” or that Guatemalan society

perceives young male business owners as a distinct social group. See Macedo

Templos, 987 F.3d at 882 (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237

(BIA 2014)). As such, we affirm the BIA’s conclusion that Lopez-Rodriguez has not

demonstrated eligibility for asylum or withholding of removal based on his

membership in a particular social group. See Cordoba, 962 F.3d at 483.1

2. CAT Relief. The BIA erred when denying Lopez-Rodriguez’s application

for CAT relief for failure to show torture by the government or with government

acquiescence. When analyzing a CAT claim, the BIA must consider “all relevant

evidence,” including a petitioner’s credible testimony and evidence of country

conditions. Parada v. Sessions, 902 F.3d 901, 914 (9th Cir. 2018). Failure to do so

constitutes reversible error. Diaz-Reynoso v. Barr, 968 F.3d 1070, 1089 (9th Cir.

2020); Aguilar-Ramos v. Holder, 594 F.3d 701, 705 (9th Cir. 2010).

Here, Lopez-Rodriguez’s country reports provide evidence of corruption by

Guatemalan public officials, including police officers, in connection with organized

criminals. See Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1186 (9th Cir. 2020)

(remanding to the BIA where “the country conditions evidence shows that

1 Because Lopez-Rodriguez cannot establish membership in a particular social group, we need not address whether he has established the requisite nexus between his claimed persecution and his status as a young, male business owner. See Cordoba, 962 F.3d at 483.

3 corruption of government officials, especially of the police with regard to drug

cartels, and specifically with regard to [a Mexican gang], remains a major problem

in Mexico.”). Additionally, Lopez-Rodriguez testified at several points that he and

the rest of his community did not go to the police or report gang threats and attacks

because it was common knowledge that the gang controlled the police and would

retaliate against those who tried to report against them. He also submitted several

letters from his community members and family documenting corruption by the

police and other governmental officials within his community and the country at

large. See Aguilar-Ramos, 594 F.3d at 705 (remanding where “[t]here [wa]s

evidence in the record that suggests that gangs and death squads operate in El

Salvador, and that its government is aware of and willfully blind to their existence.”).

Neither the IJ nor the BIA considered Lopez-Rodriguez’s country reports when

analyzing his CAT claim, nor did they explain why his testimony and documentary

evidence failed to establish government acquiescence or willful blindness.

Because we cannot assume that the IJ and BIA considered evidence they did

not discuss, we remand to the BIA to consider “all relevant evidence” regarding

Lopez-Rodriguez’s likelihood of future torture through government acquiescence or

willful blindness. See Madrigal v. Holder, 716 F.3d 499, 508 (9th Cir. 2013)

(“[W]here there is any indication that the BIA did not consider all of the evidence

before it . . . the decision cannot stand.” (citation omitted)).

4 GRANTED IN PART; DENIED IN PART; REMANDED.2

2 Each party shall bear its own costs. See Fed R. App. Proc. 39(a)(4).