NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 22 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
JAVIER LORENZO-CALMO, No. 20-72318
Petitioner, Agency No. A208-193-921
v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted December 10, 2021** Pasadena, California
Before: BERZON and BEA, Circuit Judges, and BENNETT,*** District Judge.
Javier Lorenzo Calmo petitions for review of his removal order. The BIA
reached three issues in this case: 1) for asylum and withholding of removal relief,
* 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 Richard D. Bennett, United States District Judge for the District of Maryland, sitting by designation. whether Lorenzo Calmo showed a nexus between his persecution and his religion,
in particular his role as a Catholic preacher; 2) for asylum and withholding of
removal relief, whether he showed past persecution based on membership in the
particular social group of persons of Mayan descent; and 3) for relief under the
Convention Against Torture, whether he showed the government would acquiesce
in his persecution. The agency expressly declined “to address [Lorenzo Calmo’s]
other arguments on appeal,” so our review is limited to these issues. See Guerra v.
Barr, 974 F.3d 909, 911 (9th Cir. 2020).
We grant Lorenzo Calmo’s petition with regard to asylum and withholding
of removal relief based on both religion and membership in a particular social
group. We deny the petition with regard to relief under the Convention Against
Torture.
1. Nexus to religion. For asylum, a petitioner must show he is unable or
unwilling to return to his home country “because of [past] persecution or a well-
founded fear of persecution on account of race, religion, nationality, membership
in a particular social group, or political opinion.” Baghdasaryan v. Holder, 592
F.3d 1018, 1023 (9th Cir. 2010) (emphasis added) (quoting 8 U.S.C. §
1101(a)(42)(A)). For a withholding of removal claim, the same standard applies
but the applicant must show future persecution on a protected ground is “more
likely than not.” See Guo v. Sessions, 897 F.3d 1208, 1213 (9th Cir. 2018).
2 At issue in this case is the standard a petitioner must meet to show the
persecution was “on account of” a protected ground. An applicant for asylum must
show a protected ground “was or will be at least one central reason for persecuting
the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i) (emphasis added); see Madrigal v.
Holder, 716 F.3d 499, 506 (9th Cir. 2013). For withholding of removal relief, the
protected ground need only be “a reason” for the persecution. Barajas-Romero v.
Lynch, 846 F.3d 351, 358–60 (9th Cir. 2017) (emphasis added) (citing 8 U.S.C. §
1231(b)(3)(C)). Under both standards, an applicant can meet his burden by
showing his persecutors had mixed motives, so long as one (“central,” for asylum)
motive was a protected ground. See Bringas-Rodriguez v. Sessions, 850 F.3d 1051,
1062 (9th Cir. 2017) (en banc). Here, the BIA upheld the IJ’s denial of both
asylum and withholding of removal relief, so we treat its decision as holding that
Lorenzo Calmo’s religion was neither “one central reason,” nor even “a reason,”
he was targeted. See Barajas-Romero, 846 F.3d at 358–360.
When the “persecuted activity could stem from many causes, some protected
by the statute and others unprotected, the victim must tie the persecution to a
protected cause.” Canas-Segovia v. INS, 970 F.2d 599, 601 (9th Cir. 1992).
Specifically, the applicant for asylum or withholding must “show the persecutor
had a protected basis (such as the victim’s [religion]) in mind in undertaking the
persecution.” Id. (emphasis added). We have repeatedly applied this framework to
3 assess persecution petitioners have asserted they experienced because of their
religious or politically motivated refusal to join a military group. See id.;
Melkonian v. Ashcroft, 320 F.3d 1061, 1068 (9th Cir. 2003); Tecun-Florian v. INS,
207 F.3d 1107, 1109–10 (9th Cir. 2000). It applies equally here, because the
targeted activity—dissuading young people from joining gangs—could stem from
a secular, and therefore unprotected, basis. So, although Lorenzo Calmo’s
opposition was based on religion, persecutors seeking to deter that activity may or
may not have had Lorenzo Calmo’s religious role in mind.
The BIA did not use this framework in concluding that Lorenzo Calmo did
not demonstrate that he was persecuted on account of his religion. Instead, its
opinion viewed the gang members’ possible motives in persecuting Lorenzo
Calmo as mutually exclusive. The BIA held the gang was “not motivated to harm
[Lorenzo Calmo] because he was a Catholic preacher, but rather because he
interfered with the gang’s desire to recruit young people.” It reasoned, “Although
[Lorenzo Calmo] argues that he was known as a preacher, he concedes that his
teachings dissuaded people from joining the gang.” (emphasis added).
Contrary to the BIA’s approach, under Canas-Segovia and its progeny, when
the activity the persecution targets could have no connection to a protected
ground—such as here, as discouraging gang participation is not necessarily a
religious practice—that fact does not end the inquiry and bar relief. An applicant
4 can still be entitled to relief if he can show the persecutors had his religion in mind
when they targeted him, even if they were also motivated by the practical effect of
his religious convictions. See Bringas-Rodriguez, 850 F.3d at 1062 (“[P]ersecution
may be caused by more than one central reason, and [the applicant] need not prove
which reason was dominant.”) (quoting Parussimova v. Mukasey, 555 F.3d 734,
741 (9th Cir. 2009)).
For example, Melkonian held that an applicant had shown he was persecuted
on account of a protected ground because his persecutors “specifically targeted”
men of his ethnicity “to conscript,” and that conclusion followed “even though the
[persecutors] also sought to advance their own political ends.” 320 F.3d at 1068
(citing Navas v.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 22 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
JAVIER LORENZO-CALMO, No. 20-72318
Petitioner, Agency No. A208-193-921
v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted December 10, 2021** Pasadena, California
Before: BERZON and BEA, Circuit Judges, and BENNETT,*** District Judge.
Javier Lorenzo Calmo petitions for review of his removal order. The BIA
reached three issues in this case: 1) for asylum and withholding of removal relief,
* 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 Richard D. Bennett, United States District Judge for the District of Maryland, sitting by designation. whether Lorenzo Calmo showed a nexus between his persecution and his religion,
in particular his role as a Catholic preacher; 2) for asylum and withholding of
removal relief, whether he showed past persecution based on membership in the
particular social group of persons of Mayan descent; and 3) for relief under the
Convention Against Torture, whether he showed the government would acquiesce
in his persecution. The agency expressly declined “to address [Lorenzo Calmo’s]
other arguments on appeal,” so our review is limited to these issues. See Guerra v.
Barr, 974 F.3d 909, 911 (9th Cir. 2020).
We grant Lorenzo Calmo’s petition with regard to asylum and withholding
of removal relief based on both religion and membership in a particular social
group. We deny the petition with regard to relief under the Convention Against
Torture.
1. Nexus to religion. For asylum, a petitioner must show he is unable or
unwilling to return to his home country “because of [past] persecution or a well-
founded fear of persecution on account of race, religion, nationality, membership
in a particular social group, or political opinion.” Baghdasaryan v. Holder, 592
F.3d 1018, 1023 (9th Cir. 2010) (emphasis added) (quoting 8 U.S.C. §
1101(a)(42)(A)). For a withholding of removal claim, the same standard applies
but the applicant must show future persecution on a protected ground is “more
likely than not.” See Guo v. Sessions, 897 F.3d 1208, 1213 (9th Cir. 2018).
2 At issue in this case is the standard a petitioner must meet to show the
persecution was “on account of” a protected ground. An applicant for asylum must
show a protected ground “was or will be at least one central reason for persecuting
the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i) (emphasis added); see Madrigal v.
Holder, 716 F.3d 499, 506 (9th Cir. 2013). For withholding of removal relief, the
protected ground need only be “a reason” for the persecution. Barajas-Romero v.
Lynch, 846 F.3d 351, 358–60 (9th Cir. 2017) (emphasis added) (citing 8 U.S.C. §
1231(b)(3)(C)). Under both standards, an applicant can meet his burden by
showing his persecutors had mixed motives, so long as one (“central,” for asylum)
motive was a protected ground. See Bringas-Rodriguez v. Sessions, 850 F.3d 1051,
1062 (9th Cir. 2017) (en banc). Here, the BIA upheld the IJ’s denial of both
asylum and withholding of removal relief, so we treat its decision as holding that
Lorenzo Calmo’s religion was neither “one central reason,” nor even “a reason,”
he was targeted. See Barajas-Romero, 846 F.3d at 358–360.
When the “persecuted activity could stem from many causes, some protected
by the statute and others unprotected, the victim must tie the persecution to a
protected cause.” Canas-Segovia v. INS, 970 F.2d 599, 601 (9th Cir. 1992).
Specifically, the applicant for asylum or withholding must “show the persecutor
had a protected basis (such as the victim’s [religion]) in mind in undertaking the
persecution.” Id. (emphasis added). We have repeatedly applied this framework to
3 assess persecution petitioners have asserted they experienced because of their
religious or politically motivated refusal to join a military group. See id.;
Melkonian v. Ashcroft, 320 F.3d 1061, 1068 (9th Cir. 2003); Tecun-Florian v. INS,
207 F.3d 1107, 1109–10 (9th Cir. 2000). It applies equally here, because the
targeted activity—dissuading young people from joining gangs—could stem from
a secular, and therefore unprotected, basis. So, although Lorenzo Calmo’s
opposition was based on religion, persecutors seeking to deter that activity may or
may not have had Lorenzo Calmo’s religious role in mind.
The BIA did not use this framework in concluding that Lorenzo Calmo did
not demonstrate that he was persecuted on account of his religion. Instead, its
opinion viewed the gang members’ possible motives in persecuting Lorenzo
Calmo as mutually exclusive. The BIA held the gang was “not motivated to harm
[Lorenzo Calmo] because he was a Catholic preacher, but rather because he
interfered with the gang’s desire to recruit young people.” It reasoned, “Although
[Lorenzo Calmo] argues that he was known as a preacher, he concedes that his
teachings dissuaded people from joining the gang.” (emphasis added).
Contrary to the BIA’s approach, under Canas-Segovia and its progeny, when
the activity the persecution targets could have no connection to a protected
ground—such as here, as discouraging gang participation is not necessarily a
religious practice—that fact does not end the inquiry and bar relief. An applicant
4 can still be entitled to relief if he can show the persecutors had his religion in mind
when they targeted him, even if they were also motivated by the practical effect of
his religious convictions. See Bringas-Rodriguez, 850 F.3d at 1062 (“[P]ersecution
may be caused by more than one central reason, and [the applicant] need not prove
which reason was dominant.”) (quoting Parussimova v. Mukasey, 555 F.3d 734,
741 (9th Cir. 2009)).
For example, Melkonian held that an applicant had shown he was persecuted
on account of a protected ground because his persecutors “specifically targeted”
men of his ethnicity “to conscript,” and that conclusion followed “even though the
[persecutors] also sought to advance their own political ends.” 320 F.3d at 1068
(citing Navas v. INS, 217 F.3d 646, 656 (9th Cir. 2000)).
The BIA’s characterization of Lorenzo Calmo’s acknowledgement that his
“teachings dissuaded youth from entering gangs,” as a concession that somehow
undermines his claim for relief is incorrect. What matters is whether Lorenzo
Calmo has shown that the gang members opposed his teaching against gangs in
part because of its connection to religion. This showing, moreover, can be made
directly or “by inference,” and a petitioner’s testimony alone can suffice. See
Melkonian, 320 F.3d at 1068–69 (quoting Cordon-Garcia v. INS, 204 F.3d 985,
991 (9th Cir. 2000)). Whether Lorenzo Calmo made such a showing in this case is
the agency’s determination to make. It is plausible that gang members singled
5 Lorenzo Calmo out for persecution in part because of the particular influence and
reach his religious role, door-to-door preaching alongside a Catholic priest, lent to
his teachings. The Board’s either/or approach to the issue foreclosed that inquiry
and so was inconsistent with the legal standard articulated in Canas-Segovia v.
INS. Because “we conclude that the BIA’s decision cannot be sustained upon its
reasoning,” we remand for the agency to consider Lorenzo Calmo’s claim under
the proper framework. See Regalado-Escobar, 717 F.3d 724, 729 (9th Cir. 2013).
2. Particular Social Group. The BIA again misapplied binding law in
concluding that Lorenzo Calmo “has not established past persecution or a well-
founded fear of future persecution because he is of Mayan descent.”1
Considering past persecution, the BIA erred in determining that because
some of Lorenzo Calmo’s persecutors were themselves indigenous and spoke to
him in his indigenous language, his indigenous status could not be why he was
targeted. We have “reject[ed] this reasoning as erroneous” and have “recognized
that a person can be persecuted by members of the same group.” Maini v. INS, 212
F.3d 1167, 1174 (9th Cir. 2000) (citing Andriasian v. INS, 180 F.3d 1033 (9th Cir.
1999). “The persecuting group’s motive, rather than its demographics, is crucial to
1 Although Lorenzo Calmo perhaps could have sought relief based on the protected ground of race or nationality, he instead pursued the “particular social group” ground.
6 a determination of whether a petitioner is entitled to asylum.” Id. (emphasis
added).
We remand for the BIA to reconsider Lorenzo Calmo’s particular social
group claim in light of Maini v. INS, including considering Lorenzo Calmo’s other
evidence that he asserts shows that indigenous people are targeted. See
Administrative Record 337, 113 (describing civil war); id. at 340 (explaining that
gangs can pick indigenous people out because of “the way we look, the way we
speak, and the way we dress,” and these features made them “targets” for the
gangs).2
3. Convention Against Torture. The BIA did not err in concluding that
Lorenzo Calmo has not met his burden for relief under the Convention Against
Torture. The agency’s determination that at most Lorenzo Calmo had shown the
government “at times is ineffective in its efforts to control the gang members” is
supported by substantial evidence.
CONCLUSION
We GRANT Lorenzo Calmo’s petition for review on his claims for asylum
and withholding of removal based on religion and particular social group, and we
2 The BIA discussed Lorenzo Calmo’s asserted persecution based on his indigenous status as a disfavored group issue, but, as to past persecution, the disfavored group analysis is inapplicable. See Sael v. Ashcroft, 386 F.3d 922, 924– 25 (9th Cir. 2004).
7 REMAND for the BIA to reconsider both claims under the proper legal
frameworks. We DENY the petition as to Lorenzo Calmo’s claim for relief under
the Convention Against Torture. Costs are awarded to Lorenzo Calmo.