Iginio Cruz Calles v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 3, 2019
• Docket: 16-72181
• Status: Unpublished

Opinion

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT MAY 03 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS IGINIO CRUZ CALLES, AKA Higinio No. 16-72181 Cruz Calles, Agency No. A075-529-054 Petitioner,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Argued and Submitted April 10, 2019 Seattle, Washington

Before: W. FLETCHER, CALLAHAN, and CHRISTEN, Circuit Judges.

Petitioner Iginio Cruz Calles is a native and citizen of El Salvador. He

petitions for review of the BIA’s denial of his application for asylum. We have

jurisdiction under 8 U.S.C. § 1252(a)(1) and we grant his petition. We determine

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. the BIA’s conclusion that Cruz Calles did not suffer harm rising to the level of

persecution is not supported by substantial evidence. We remand to the BIA.

We review for “substantial evidence the BIA’s decision that an applicant

failed to establish eligibility for asylum.” Njuguna v. Ashcroft, 374 F.3d 765, 769

(9th Cir. 2004). “Under the substantial evidence standard, the court upholds the

BIA’s determination unless the evidence in the record compels a contrary

conclusion.” Arteaga v. Mukasey, 511 F.3d 940, 944 (9th Cir. 2007). Because the

IJ found Cruz Calles credible and the BIA did not disturb this finding, we take

Cruz Calles’ testimony and presentation as true. See Karouni v. Gonzales, 399

F.3d 1163, 1166 n.1 (9th Cir. 2005).

To qualify for humanitarian asylum, Cruz Calles must show both (1) past

persecution and (2) “a reasonable possibility that [he] may suffer other serious

harm upon removal to” El Salvador. Hanna v. Keisler, 506 F.3d 933, 939 (9th Cir.

2007); 8 C.F.R. § 1208.13(b)(1)(iii)(B). To show past persecution, Cruz Calles

must establish that “(1) his treatment rises to the level of persecution; (2) the

persecution was on account of one or more protected grounds; and (3) the

persecution was committed by the government, or by forces that the government

was unable or unwilling to control.” Baghdasaryan v. Holder, 592 F.3d 1018,

1023 (9th Cir. 2010).

2 On the first prong, the BIA found the harms Cruz Calles suffered did not rise

to the level of persecution. Persecution is not defined in the Immigration and

Nationality Act. Baballah v. Ashcroft, 367 F.3d 1067, 1074 (9th Cir. 2004). There

is no set of criteria to define persecution, so the quantum of harm that qualifies as

persecution is measured in relation to past cases. See Navas v. I.N.S., 217 F.3d

646, 655, n.9 (9th Cir. 2000). “An applicant may suffer persecution because of the

cumulative impact of several incidents even where no single incident would

constitute persecution on its own.” Baballah, 367 F.3d at 1076.

Cruz Calles credibly put forth evidence of the following harms: (1) his

family was displaced from the coffee farm where they lived; (2) three of his

cousins were extrajudicially killed; and (3) in 1994, Cruz Calles was dragged from

his family’s house, was beaten up, and was told “the same thing would happen to

him” that happened to his murdered relatives if he did not leave the country.

Economic harm can constitute persecution where “there is a probability of

deliberate imposition of substantial economic disadvantage upon the applicant on

account of a protected ground.” Chand v. INS, 222 F.3d 1066, 1074 (9th Cir.

2000) (internal quotations omitted). The displacement of Cruz Calles’ family by

the Salvadoran military shows “a probability of deliberate imposition of substantial

3 economic disadvantage” on Cruz Calles and his family and contributes to a finding

of persecution.

In addition to this economic harm, Cruz Calles also suffered physical harm.

In the 1994 attack, Cruz Calles was bound, dragged from his family’s home at

night by three men carrying rifles, beaten up for ten minutes, and threatened with

death. The BIA found the physical attack did not rise to the level of persecution

because the harm “was limited in nature” in that “respondent only suffered cuts on

his neck and arm, resulting in an unknown number of stitches, and otherwise did

not require significant medical treatment.” However, we have held that death

threats accompanied by “close confrontation” can rise to the level of persecution,

even without physical mistreatment. See, e.g., Ruano v. Ashcroft, 301 F.3d 1155,

1158 (9th Cir. 2002) (finding past persecution where petitioner received death

threats and was cornered by armed men on several occasions). Here, the threats

were made by armed attackers and accompanied by a physical assault that required

medical attention. The level of harm to Cruz Calles was greater than the BIA’s

out-of-context summary of his injuries alone suggests.

In addition, “harm to a petitioner’s close relatives, friends, or associates may

contribute to a successful showing of past persecution” if the harm was “part of a

pattern of persecution closely tied to [the petitioner] himself.” Wakkary v. Holder,

4 558 F.3d 1049, 1060 (9th Cir. 2009) (citing Arriaga–Barrientos v. INS, 937 F.2d

411, 414 (9th Cir. 1991)). The BIA found “no indication that the murders of the

respondent’s three cousins” were “closely tied” to Cruz Calles himself. In so

finding, the BIA clearly erred. The police report submitted by Cruz Calles into the

administrative record contradicts this finding. That report states that the 1994

attackers threatened that “the same thing would happen to him” that happened to

his murdered relatives.

We are compelled to find that, cumulatively, these harms rise to the level of

persecution when compared with our past cases. See, e.g., Guo v. Sessions, 897

F.3d 1208, 1211 (9th Cir. 2018) (finding past persecution where the petitioner was

slapped twice and struck for one or two minutes with a baton, but was at the

hospital for only an hour, combined with threats of future harm if the petitioner

participated in his home church); Navas v. I.N.S., 217 F.3d 646, 658 (9th Cir.

2000) (holding that “Navas has unquestionably demonstrated persecution” where

he was “threatened with death, . . . two members of his family were murdered, he

was shot at, and his mother beaten”).

The BIA ended its analysis of past persecution after determining that the

harm Cruz Calles suffered did not rise to the level of persecution. We conclude

5 that finding is not supported by substantial evidence. Accordingly, we remand for

the BIA for further proceedings.

PETITION GRANTED and REMANDED.