Juana Espino Garcia v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 31, 2022
• Docket: 16-72838
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 31 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JUANA IRIS ESPINO GARCIA, No. 16-72838

Petitioner, Agency No. A206-913-479

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.

Partial Concurrence and Partial Dissent by Judge FORREST.

Juana Iris Espino Garcia (“Espino Garcia”), a native and citizen of Mexico,

petitions for review from the Board of Immigration Appeals’ (“BIA’s”) dismissal

of her appeal from the immigration judge’s (“IJ’s”) denial of her application for

asylum, withholding of removal under the Immigration and Nationality Act, and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. withholding of removal under the Convention Against Torture (“CAT”). We grant

the petition in part and deny it in part.

When “the BIA agrees with the IJ’s reasoning, we review both decisions.”

Garcia-Martinez v. Sessions, 886 F.3d 1291, 1293 (9th Cir. 2018). “[W]e consider

only the grounds relied upon by th[e] agency,” and we remand to allow the agency

to decide any remaining issues. Regalado-Escobar v. Holder, 717 F.3d 724, 729

(9th Cir. 2013) (quoting Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004)).

We review legal questions de novo and factual findings for substantial evidence.

See Garcia v. Wilkinson, 988 F.3d 1136, 1142 (9th Cir. 2021).

1. The BIA committed legal error when, for purposes of determining

whether Espino Garcia established that the harms she fears are because of actual or

imputed political opinion, it applied the same “one central reason” standard to both

her asylum and statutory withholding of removal claims. An applicant for

withholding of removal need only show that a protected ground is “a reason” for

the feared harm, rather than “one central reason.” See Barajas-Romero v. Lynch,

846 F.3d 351, 358–60 (9th Cir. 2017); see also 8 U.S.C. § 1231(b)(3)(C). The “a

reason” standard applicable to withholding of removal is “less demanding” than

the “one central reason” standard that applies to asylum claims. Barajas-Romero,

846 F.3d at 360; see also Garcia, 988 F.3d at 1146.

2 Where the BIA has applied the wrong nexus standard to a withholding of

removal claim, remand is appropriate if the evidence supporting the agency’s

conclusion is “not unambiguous.” Garcia, 988 F.3d at 1147; Barajas-Romero, 846

F.3d at 360. Here, Espino Garcia, whom the agency found credible, submitted

evidence from which a reasonable fact finder could conclude that actual or imputed

political opinion was “a reason” for the harms she fears. First, she provided

evidence connecting her sister’s and brother-in-law’s murders to their political

activities. She testified that her sister and brother-in-law were politically active,

her brother-in-law held a government position, and her brother-in-law had to travel

for his political work. The sicarios were monitoring the couple’s activities, warned

her brother-in-law not to travel, and took away the couple’s phones out of concern

that they would report the sicarios to higher authorities. Two months after the

sicarios took away their phones, the couple was found tortured and brutally

executed. Espino Garcia testified that the sicarios most likely targeted her sister

and brother-in-law because of their political activities and her brother-in-law’s

government position.

Second, Espino Garcia presented evidence connecting the threats she

received to the harms suffered by her sister and brother-in-law and to her own

political opinion. Evidence that an applicant was harmed because of a family

member’s government service can support the conclusion that the harm was based

3 on imputed political opinion. See Parada v. Sessions, 902 F.3d 901, 910 (9th Cir.

2018). Espino Garcia testified that the sicarios knew she was a member of the

same political party as her sister and brother-in-law and that she attended political

events with the couple. The sicarios had threatened Espino Garcia’s sister that if

her husband travelled, her family would be killed. And a few months after the

murders, an armed man threatened Espino Garcia that the same thing that

happened to her sister could happen to her.

That Espino Garcia was in danger because of her actual or imputed political

opinion was therefore not entirely “speculative,” as the BIA and IJ concluded;

there was evidence, albeit circumstantial, supporting this interpretation of the

threats against her, although her family connection to her sister and brother-in-law,

independent of her own actual or imputed political opinion, could also have played

a part.

In contrast, in the course of characterizing Espino Garcia’s concerns as

“speculative,” the IJ himself improperly speculated that her sister and brother-in-

law might have been killed due to a “deal . . . gone bad.” There was no evidence

whatsoever to support the IJ’s supposition, nor was there any evidence supporting

any alternative explanation for the couple’s murder and the threats to Espino

Garcia.

4 Nor can the violence and threats Espino Garcia recounted necessarily be

attributed to “generalized violence affecting the population at large,” as the BIA

indicated. The sicarios repeatedly threatened Espino Garcia’s sister and brother-in-

law personally before coming to their home and murdering them execution-style,

and there was no evidence of a motive such as theft or extortion. Moreover, the

continued threats against the victims’ family belies the general violence

characterization. See, e.g., Silaya v. Mukasey, 524 F.3d 1066, 1071 (9th Cir. 2008)

(explaining that continued harassment after an attack may “suggest that this was a

purposeful attack with a political motive, rather than a despicable act of

unmotivated violence against a stranger”) (quoting Ochave v. I.N.S., 254 F.3d 859,

866 (9th Cir. 2001)).

Because the record contains some evidence that could support the

conclusion that political opinion was “a reason,” even if not “one central reason,”

that Espino Garcia would be targeted, the record on the question is “not

unambiguous.” See Garcia, 988 F.3d at 1147; Barajas-Romero, 846 F.3d at 360.

We therefore remand to the agency for consideration of the withholding claim

under the “a reason” standard.

2. With respect to Espino Garcia’s asylum claim, substantial evidence

supports the BIA’s conclusion that Espino Garcia failed to establish that actual or

imputed political opinion was “one central reason” for the harms she fears.

5 Although there is evidence that her sister and brother-in-law were killed because of

their political activities, that the sicarios also targeted the couple’s family, and that

the sicarios knew of Espino Garcia’s political activities, we are unable to conclude

that the record compels a conclusion that “one central reason” for the feared harm

was political opinion.1

3. The BIA erred by failing to give reasoned consideration to Espino

Garcia’s evidence concerning her CAT claim. “[A]ll evidence relevant to the

possibility of future torture shall be considered” by the agency, 8 C.F.R. §

1208.16(c)(3), and the BIA’s failure to discuss “highly probative or potentially

dispositive evidence” is legal error. Flores Molina v. Garland, 37 F.4th 626, 632

(9th Cir. 2022) (quoting Cole v. Holder, 659 F.3d 762, 772 (9th Cir. 2011)). The

BIA concluded in one sentence that the IJ had not clearly erred in determining that

she had failed to establish that she would be tortured with the consent or

acquiescence of a government official.

Espino Garcia presented evidence that the local police helped the sicarios

target and kill individuals who made police reports against them. For example, she

testified that “if the people . . . go to the police to report the criminals – it will be

the same police that hand [them] over to the criminals for them to get killed.”

1 There is some disagreement in our case law about the appropriate standard of review for nexus issues, but we need not resolve the question here because it would not change the outcome. See Garcia, 988 F.3d at 1142 n.2.

6 “Every time a person or somebody makes a report, they always appear dead.” She

recounted an incident in which a man who had reported the sicarios to the police

was found dead “hanging from a bridge with his tongue cut out and a sign around

his neck warning people that this is what happens to people who report to the

police.” According to Espino Garcia, if the police witnessed the sicarios harming

others, “[t]hey won’t care” to stop the sicarios. Further, she indicated that the

sicarios might be paying off the local police, stating that “maybe [the sicarios] paid

. . . the police [because] they don’t do anything.”

The IJ stated, inaccurately, that “there is no indication the government would

torture her, acquiesce, or be willfully blind to it.” (Emphasis added). The IJ also

concluded that Espino Garcia’s concern that the sicarios were working with the

local police was contradicted by her testimony that the sicarios were afraid that her

brother-in-law would report them to authorities outside the locality. This

reasoning is unsupported by the record, which does not indicate that the local

police had authority elsewhere and instead suggests that there were separate

military or state police whom the sicarios feared.

The BIA stated generally that it concluded the IJ’s determination was not

clearly erroneous based on “the totality of the record.” The BIA’s use of “a

catchall phrase does not suffice,” however, when “there is any indication that the

BIA did not consider all of the evidence before it.” Cole, 659 F.3d at 771–72; see

7 also 8 C.F.R. § 1208.16(c)(3). Here, the BIA did not acknowledge the evidence

suggesting that the sicarios feared the military or state police, which undermined

the IJ’s conclusion. Nor did the BIA address the IJ’s plainly incorrect statement

that “there is no indication” in the record of acquiescence or willful blindness by

the government. And the BIA itself did not discuss the evidence that Espino

Garcia presented on that question. Because these failures indicate that the BIA

failed to consider all the evidence, we remand for the agency to reconsider her

CAT claim. See Cole, 659 F.3d at 772.

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

PETITION DENIED IN PART, GRANTED IN PART, AND

REMANDED.

8 FILED AUG 31 2022 Espino Garcia v. Garland, No. 16-72838 FORREST, J., concurring in part and dissenting in part: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

I agree that Petitioner Juana Iris Espino Garcia failed to establish eligibility

for asylum and that her withholding of removal claim must be remanded for the

agency to apply the proper legal standard. But I disagree that Espino Garcia’s

Convention Against Torture (CAT) claim should also be remanded, and I would

deny that claim.

The majority concludes that the Board of Immigration Appeals (BIA) erred

by failing to address key evidence related to government acquiescence, including

Espino Garcia’s testimony that the sicarios were afraid of the military or state police.

The majority improperly focuses on the BIA’s decision without reference to the

Immigration Judge’s (IJ) findings. When the BIA affirms and relies upon an

IJ’s “statement of reasons” on clear error review, as it did here, we look to the IJ’s

“decision as a guide to what lay behind the BIA’s conclusion.” Tekle v. Mukasey,

533 F.3d 1044, 1051 (9th Cir. 2008) (citation omitted). “[A]ll evidence relevant to

the possibility of future torture shall be considered” by the agency. 8 C.F.R.

§ 1208.16(c)(3). Absent an indication that it “fail[ed] to consider all the evidence, a

general statement that [the agency] considered all the evidence before [it] may be

sufficient.” Cole v. Holder, 659 F.3d 762, 771 (9th Cir. 2011) (citation and internal

quotation marks omitted). The agency is not required “to write an exegesis on every

contention,” Vitchez v. Holder, 682 F.3d 1195, 1201 (9th Cir. 2012) (citation and 1 internal quotation marks omitted), nor is it required to “discuss each piece of

evidence submitted.” Cole, 659 F.3d at 771.

Here, the evidence at issue (Espino Garcia’s testimony) suggests that local

police helped the sicarios target and kill individuals who filed police reports. The IJ

acknowledged Espino Garcia’s testimony, including that she did not report the

murders of her family members or the threats made against her “because she believed

that the police were involved with the Sicarios.” It also detailed the documentary

evidence relevant to whether government officials were more likely than not to

torture Espino Garcia or acquiesce in her torture committed by third parties and

concluded that it was insufficient. See 8 C.F.R. § 1208.16(c)(2). Because the BIA

agreed with the IJ’s reasoning, we are guided by the IJ’s decision as to “what lay

behind the BIA’s conclusion.” Tekle, 533 F.3d at 1051; see Amaya v. Garland, 15

F.4th 976, 987 (9th Cir. 2021) (looking to the IJ’s reasoning when denying the

petitioner’s CAT claim because of the BIA’s conclusory agreement with the IJ’s

holding); see also Sanchez-Ruano v. Garland, 8 F.4th 965, 967 n.4 (9th Cir. 2021)

(noting that the BIA’s failure to “expressly analyze” the petitioner’s argument was

“of no import” because its “‘simple statement of a conclusion’ . . . directs us to

review the IJ’s analysis of that issue”). And here, with the IJ’s treatment of the

record, the BIA’s general statement that it reviewed “the totality of the record” was

not improper. Cf. Parada v. Sessions, 902 F.3d 901, 915–16 (9th Cir. 2018)

2 (remanding for further consideration of the petitioner’s CAT claim because the IJ

“ignored significant evidence in the record,” including key testimony and country

conditions reports).

The majority points to the IJ’s failure to specifically reference Espino Garcia’s

testimony that the sicarios feared the military or national police but not the local

police. Silence regarding evidence of record is reversible error only when the

evidence is “highly probative or potentially dispositive.” Flores Molina v. Garland,

37 F.4th 626, 632 (9th Cir. 2022) (quoting Cole, 659 F.3d at 772). That is not the

case here. As explained below, substantial evidence supports the agency’s finding

that Espino Garcia’s assertion that police were being paid off or cooperating with

the sicarios was based on speculation. That the sicarios may have feared the military

or national police (she wasn’t sure which or even if there is a difference between

local and national police) does not undermine this finding.

Regarding the merits, the majority concludes that the IJ erred in finding that

“there is no indication” that the government would torture Espino Garcia or

acquiesce in her torture by third parties. Substantial evidence supports the agency’s

denial of CAT relief. Espino Garcia had to prove that she faces a “particularized

threat” of torture by or with government acquiescence. See Dhital v. Mukasey, 532

F.3d 1044, 1051 (9th Cir. 2008). Evidence of general government ineffectiveness in

preventing torture or of generalized violence in society is insufficient. See B.R. v.

3 Garland, 26 F.4th 827, 844–45 (9th Cir. 2022). Even though Espino Garcia testified

about threats being made against her and other family members after her sister and

brother-in-law were killed, she admitted that her family members who remained in

Mexico (who also supported the same political party as her sister and brother-in-

law) were never harmed and neither was the mayor that her deceased brother-in-law

worked for nor any of the teachers at the school that the sicarios supposedly opposed

at the time of the murders. And while she suggested that “maybe” the sicarios paid

off the police and the police “might” inform the sicarios who makes reports, her

basis for this assertion was hearing about this happening in the news. While she

boldly proclaimed that “[e]very time a person or somebody makes a report, they

always appear dead,” she admitted that she did not know how the sicarios would

know about a report being made and had no personal knowledge of it ever

happening. This record does not compel the conclusion that the agency erred in

determining that it is entirely speculative whether government officials would

acquiesce in torture committed by the sicarios. 8 U.S.C. § 1252(b)(4)(B); Zheng v.

Holder, 644 F.3d 829, 835–36 (9th Cir. 2011).

For these reasons, I would deny Espino Garcia’s petition as relates to her CAT

claim and remand solely on her withholding of removal claim.