Hector Martinez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 23, 2022
• Docket: 15-72614
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 23 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

HECTOR MARTINEZ, AKA Hector Samir No. 15-72614 Martinez, Agency No. A095-807-934 Petitioner,

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

Respondent.

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

Submitted March 10, 2022** Pasadena, California

Before: TALLMAN and FRIEDLAND, Circuit Judges, and KORMAN,*** District Judge.

* 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 Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. Emir Esau Martinez,1 a native and citizen of Honduras, appeals from the

Board of Immigration Appeals’ (“Board”) decision affirming the denial of his

application for asylum, withholding of removal, and protection under the

Convention Against Torture (“CAT”). We grant Martinez’s petition.

In 2000, when Martinez was thirteen years old and living in Miramar,

Honduras, he and his cousins Yimi and Victor witnessed national police officers

killing four people in a soccer field. Two weeks after Martinez witnessed this

crime, the police officers stopped him on his way to school, hit him with the butt of

their rifles, and told him that if he said anything about what he had seen, they

would kill him and his whole family. A few days later, national police officers shot

Yimi to death in the street; Yimi was barely fourteen years old. Martinez and

Victor fled Miramar with the rest of their family to live with Martinez’s aunt

Glenis Munguia in La Isla, Honduras. For four years, the family lived openly in La

Isla.

In 2004, Martinez and his family returned to Miramar. Soon after, national

police officers entered Martinez’s family’s house, looking for Martinez and Victor.

The police officers found Victor, but Martinez was not home. The police officers

beat Martinez’s aunt, but she refused to tell them Martinez’s location. The police

officers took Victor and, a few days later, his body was discovered in the street

1 Petitioner’s birth name.

2 with several bullet entry wounds. Victor was only sixteen years old.

Martinez fled to Aunt Glenis’s house in La Isla. He lived in hiding for two

months—completing his schoolwork at home because he was too worried about

being intercepted at school—until he could secure passage to the United States.

Since Martinez moved to the United States, national police officers have

repeatedly harassed his family members for his whereabouts.

The sole basis for the agency’s denial of Martinez’s application for asylum

and withholding of removal was that Martinez could reasonably relocate within

Honduras because he had lived safely in La Isla in the past. The agency may deny

asylum and withholding of removal if it finds by a preponderance of the evidence

that “[t]he applicant could avoid future persecution by relocating to another part of

the applicant’s country of nationality.” 8 C.F.R. § 1208.13(b)(1)(i)(B) (asylum);

accord id. § 1208.16(b)(1)(i)(B) (withholding). But if “the persecutor is a

government or is government-sponsored, it shall be presumed that internal

relocation would not be reasonable, unless [the government] establishes by a

preponderance of the evidence that, under all the circumstances, it would be

reasonable for the applicant to relocate.” 8 C.F.R. § 1208.13(b)(3)(ii) (asylum);

accord id. § 1208.16(b)(3)(ii) (withholding).

Because Martinez was persecuted by the national police, it was the

government’s burden to demonstrate by a preponderance of the evidence “that

3 there [wa]s a specific area” in Honduras “where the risk of persecution to

[Martinez] f[ell] below the well-founded fear level.” Matter of M-Z-M-R-, 26 I. &

N. Dec. 28, 33–34 (BIA 2012). The agency erred in holding that the government

met its burden. In its argument that Martinez could reasonably relocate, the

government relied upon two periods in which Martinez had lived safely in La Isla:

Martinez’s four-year relocation to La Isla in 2000 after his cousin Yimi was killed

and his two-month stay in La Isla in 2004 after his cousin Victor was killed. But

neither of these periods can reasonably serve as evidence that Martinez can safely

relocate to La Isla. The four-year period cannot because it preceded the national

police’s attempts to locate Martinez. See Kaiser v. Ashcroft, 390 F.3d 653, 659–60

(9th Cir. 2004) (holding that substantial evidence did not support the Board’s

determination that an applicant could internally relocate when the Board relied

only on evidence of places the applicant had lived safely before the political party

targeting him escalated its threats). And the two-month period cannot because

Martinez was in hiding for that period. See Akosung v. Barr, 970 F.3d 1095, 1102

(9th Cir. 2020) (“[W]e do not believe that an applicant can be said to have the

ability to ‘relocate’ within her home country if she would have to remain in hiding

there.”).

The agency erroneously conflated the four-year period Martinez lived

openly in La Isla before the Honduran national police began to search for him with

4 the two-month period Martinez lived in hiding after the national police started

harassing his family members for his whereabouts, but neither of these periods

demonstrate that Martinez could live openly in La Isla after the national police

escalated their threats against him. See Matter of M-Z-M-R, 26 I. & N. Dec. at 29,

34 (remanding for further review because the immigration judge “conflate[d]” two

periods in which an applicant relocated after being subject to persecution instead of

making specific findings as to whether the applicant was able to live openly in the

proposed area after the persecution escalated). Thus, substantial evidence does not

support the agency’s decision to deny Martinez’s asylum and withholding of

removal claims on the basis that Martinez could internally relocate.

The agency also denied Martinez’s CAT claim on the basis that he could

safely relocate to La Isla. While the CAT regulations, unlike the asylum and

withholding regulations, do not place the burden on the government to prove that

internal relocation is possible before the agency can deny relief on this basis,

Maldonado v. Lynch, 786 F.3d 1155, 1163–64 (9th Cir. 2015) (en banc), the

agency still erred in proposing that Martinez relocate to La Isla without evidence

that he could live there openly after the threats against him escalated, see Akosung,

970 F.3d at 1101–02. We thus grant the petition as to Martinez’s asylum,

withholding of removal, and CAT claims, and remand for further proceedings. See

INS v. Ventura, 537 U.S. 12, 16 (2002) (per curiam) (“Generally speaking, a court

5 of appeals should remand a case to an agency for decision of a matter that statutes

place primarily in agency hands.”).

PETITION FOR REVIEW GRANTED AND REMANDED.