Lopez Arostegui v. Bondi

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 16, 2025
• Docket: 24-2787
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 16 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LESTER PASCUAL LOPEZ No. 24-2787 AROSTEGUI; ALBA NUBIA RIOS Agency Nos. PEREZ; LESLY DARIANA LOPEZ RIOS, A220-580-360 A220-489-902 Petitioners, A220-489-903 v. MEMORANDUM* PAMELA BONDI, Attorney General,

Respondent.

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

Argued and Submitted April 2, 2025 Pasadena, California

Before: GILMAN, M. SMITH, and VANDYKE, Circuit Judges.** Dissent by Judge VANDYKE.

Lester Pascual Lopez Arostegui, his wife Alba, and their daughter Lesly

(collectively, Petitioners), all citizens of Nicaragua, petition for review of a

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Ronald Lee Gilman, United States Circuit Judge for the Court of Appeals, 6th Circuit, sitting by designation. decision by the Board of Immigration Appeals (BIA) dismissing their appeal of a

ruling by an Immigration Judge (IJ) that denied their applications for asylum,

withholding of removal, and relief under the Convention Against Torture (CAT).

We have jurisdiction under 8 U.S.C. § 1252, and we grant the petition for review.

1. “Where, as here, the BIA adopts and affirms the IJ’s order pursuant to

Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994), and expresses no

disagreement with the IJ’s decision, we review the IJ’s order as if it were the

BIA’s.” Chuen Piu Kwong v. Holder, 671 F.3d 872, 876 (9th Cir. 2011). “We

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

Flores Molina v. Garland, 37 F.4th 626, 632 (9th Cir. 2022) (quoting Guerra v.

Barr, 974 F.3d 909, 911 (9th Cir. 2020)).

2. Regarding asylum, the IJ’s determination that Petitioners did not

suffer past persecution in Nicaragua is not supported by substantial evidence. The

IJ found the testimony and declarations of Petitioners to be credible and gave the

evidence full weight. Alba testified that, after participating in an April 2018

antigovernment march, she received threatening text messages warning that if

Petitioners “kept supporting the protests, [they] [would] be imprisoned and

tortured.” In June 2018, Petitioners were stopped and searched by parapolice and

warned that if they “did not return home immediately and . . . if [they] continued

supporting the marches [they] would be imprisoned.” An officer grabbed Alba’s

2 24-2787 cellphone out of her hand, refused to return it, and said that officers “were going to

review her phone to see if she had anything against the government.”

A little over a year later, Alba’s father was imprisoned for one week and was

told by officers that he was “incarcerated because he did not support the

Nicaraguan government.” The officers threatened that if he “continued supporting

the marches, they would kill him and his family.” He was released one week later

with an explicit warning that the officers “did not want to see any [of his] family

member[s] protesting against the government.” Approximately a year after that,

paramilitary officers assaulted Lester with a large rock that dislocated his foot,

telling Lester “that [was] what [he got] for not supporting the Nicaraguan

government and the [Nicaraguan Institute of Social Security].” Lester spent three

months on bed rest recovering from the injury to his foot.

In the present case, these repeated threats of death, torture, and incarceration

are “credible given the history and context of the Ortega regime’s killing and

torture of its political opponents.” See Flores Molina, 37 F.4th at 635. The

credible threats to Petitioners were elevated by a robbery and close confrontations

with paramilitaries. These are the type of circumstances that elevate “mere

threats” into “extreme” or “especially menacing” threats that constitute past

persecution. Id. (distinguishing Lim v. INS, 224 F.3d 929, 936 (9th Cir. 2000)); see

also Navas v. INS, 217 F.3d 646, 658 (9th Cir. 2000) (collecting cases holding that

3 24-2787 credible death threats alone can constitute persecution). In addition, Lester was

seriously injured because he did not support the Nicaraguan government. “[W]hen

the incidents have involved physical harm plus something more, such as credible

death threats, [this court] ha[s] not hesitated to conclude that the petitioner suffered

persecution.” Aden v. Wilkinson, 989 F.3d 1073, 1082 (9th Cir. 2021).

Moreover, “‘[a]n applicant may suffer persecution because of the cumulative

effect of several incidents,’ even if no single incident rises to the level of

persecution.” Flores Molina, 37 F.4th at 636 (quoting Chand v. INS, 222 F.3d

1066, 1074 (9th Cir. 2000)). The BIA has an “obligation to consider the ‘totality

of the circumstances’ in deciding whether past persecution is shown.” Id.

In the present case, the IJ evaluated the instances of harm individually and

explicitly concluded that each instance did not amount to past persecution “by

itself,” “alone,” or without “other crimes.” True enough, the IJ concluded that,

“[b]ased on the totality of the circumstances, the [Petitioners] did not establish the

harm they suffered met the high burden to amount to persecution.” But catchall

phrases do not “insulate the BIA from reversal.” See Flores Molina, 37 F.4th at

639 n.7 (noting that “[w]here there is any indication that the BIA did not consider

all of the evidence before it, a catchall phrase does not suffice, and the decision

cannot stand.” (quoting Cole v. Holder, 659 F.3d 762, 771–72 (9th Cir. 2011))).

By the same logic, where there is any indication that the IJ did not consider the

4 24-2787 evidence cumulatively, a catchall phrase is insufficient.

The repeated threats of torture and incarceration, the death threat, the

robbery and close confrontations with paramilitaries, the incarceration of Alba’s

father, and the serious physical harm to Lester must be considered cumulatively

and in the broader context of violence targeted at perceived political dissidents in

Nicaragua. This record evidence would compel any reasonable adjudicator to find

that Petitioners’ past experiences “rose to the level of persecution.” See id. at 637

(quoting Baghdasaryan v. Holder, 592 F.2d 1018, 1023 (9th Cir. 2010)).

Petitioners have therefore satisfied the first element of past persecution. We leave

the remaining elements of past persecution (that “the persecution was on account

of one or more protected grounds” and that “the persecution was committed by the

government, or by forces that the government was unable or unwilling to control”)

to be addressed on remand. See id. at 633 (discussing the elements of past

persecution). If Petitioners establish these remaining elements of past persecution,

then a rebuttable presumption of a well-founded fear of future persecution arises.

Id. at 637.

3. Additionally, the IJ separately erred by failing to address Petitioners’

claim of a well-founded fear of future persecution based on (1) Ortega’s pattern or

practice of persecution against perceived political opponents, and (2) Petitioners’

likelihood of being immediately detained and persecuted upon their return to

5 24-2787 Nicaragua. The IJ never evaluated either of these two arguments regarding future

persecution. This was legal error that requires remand. See Sagaydak v. Gonzales,

405 F.3d 1035, 1040–41 (9th Cir. 2005) (holding that error occurs “as a matter of

law” if an IJ “ignore[s] arguments raised by a petitioner.”).

The IJ also erred by failing to properly consider all the relevant evidence.

“Where the BIA does not consider all the evidence before it, either by ‘misstating

the record [or] failing to mention highly probative or potentially dispositive

evidence,’ its decision is legal error and ‘cannot stand.’” Flores Molina, 37 F.4th

at 632 (alteration in original) (quoting Cole, 659 F.3d at 772). And a “significant

and material disconnect between the IJ’s quoted observations and his conclusions

. . . indicate[s] that the IJ did not properly consider all of the relevant evidence

before him.” Parada v. Sessions, 902 F.3d 901, 915 (9th Cir. 2018).

The IJ here recognized that Nicaraguan police and parapolice “continue to

carry out acts of harassment, intimidation, and violence toward perceived enemies

of the regime with impunity.” He concluded, however, that Petitioners’ “minimal

participation in the protests and lack of involvement in opposition politics”

suggested that the Nicaraguan government would not persecute them. But this is

contradicted by the IJ’s factual finding that Nicaraguan parapolice repeatedly

targeted Petitioners for three years after they attended a single protest in April

2018. The IJ also found that paramilitaries continued to search for Petitioners after

6 24-2787 they left Nicaragua in 2021. When police continue to search for a petitioner, this

“suggest[s] that they intend[] to harm him again.” De Leon v. Garland, 51 F.4th

992, 1008 (9th Cir. 2022).

Similarly, with regard to the arrest of Alba’s father, the IJ stated that “the

[Petitioners] did not indicate that the arrest was targeted at them rather than general

anti-opposition sentiment.” But this conclusion is again contradicted by the IJ’s

finding that the officials “threatened to harm [Alba’s father] and his family if they

did not stop participating in the protests.” (emphasis added).

The IJ also failed to address whether the repeated threats to Petitioners were

sufficient to constitute a well-founded fear of future persecution. There have been

“cases where threats that were insufficient to establish past persecution were,

nonetheless, sufficient to demonstrate a well-founded fear of future persecution.”

See Flores Molina, 37 F.4th at 638 (citing the discussion of such cases in Lim v.

INS, 224 F.3d 929, 936–37 (9th Cir. 2000)). The IJ failed to mention Alba’s

testimony that officials threatened to kill her father and his family if they continued

supporting the marches. “Threats on one’s life, within [the] context of political

and social turmoil or violence, have long been held sufficient to satisfy a

petitioner’s burden of showing an objective basis for fear of persecution.” Kaiser

v. Ashcroft, 390 F.3d 653, 658 (9th Cir. 2004). When an IJ fails to consider this

7 24-2787 kind of evidence, his “decision cannot stand.” Flores Molina, 37 F.4th at 638

(quoting Cole, 659 F.3d at 771–72).

4. The IJ denied Petitioners’ withholding-of-removal claim for the same

reasons that he denied their asylum claim. Because the IJ erred in his analysis of

the asylum claim, we remand Petitioners’ withholding-of-removal claim for further

consideration. See id. “The cumulative-effect requirement articulated respecting

asylum applies with equal force to [a] withholding of removal claim.” Salguero

Sosa v. Garland, 55 F.4th 1213, 1220 (9th Cir. 2022).

Petitioners must be credited with a rebuttable presumption of eligibility for

withholding of removal if it is determined on remand that Petitioners experienced

past persecution on account of a protected ground. See Flores Molina, 37 F.4th at

638. But even if Petitioners are not entitled to a presumption of eligibility, all

probative evidence related to Petitioners’ fear of future persecution must be

considered. Id. at 638–39.

5. Finally, regarding the CAT claim, the IJ concluded that, because

Petitioners did not demonstrate “a reasonable possibility they would be persecuted

if they return to Nicaragua,” they have “not established it is more likely than not

that they would be tortured.” He also found that “the country conditions evidence

does not otherwise establish that [Petitioners] would face an independent risk of

torture in their home country.” The IJ’s conclusion on CAT relief fails for the

8 24-2787 same reasons as the well-founded-fear-of-future-persecution finding, as discussed

above. On remand, all evidence relevant to the possibility of future torture must be

considered. See Flores Molina, 37 F.4th at 639.

PETITION GRANTED.

9 24-2787 FILED Lester-Pascual Lopez Arostegui et al. v. Pamela Bondi, No. 24-2787 MAY 16 2025 VANDYKE, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS I disagree with the majority’s decision granting the petition for review of the

Board of Immigration Appeals’ (“BIA”) decision, which adopted and affirmed the

Immigration Judge’s (“IJ”) decision denying Petitioners’ applications for asylum,

withholding of removal, and Convention Against Torture (“CAT”) relief. I would

defer to the agency’s fact-finding and find no legal error.

First, the IJ appropriately conducted a cumulative-effect review. See

Salguero Sosa v. Garland, 55 F.4th 1213, 1218 (9th Cir. 2022). The IJ stated that it

considered the “totality of the circumstances,” the same phrase that our court uses to

describe the cumulative-effect review. See, e.g., Flores Molina v. Garland, 37 F.4th

626, 636 (9th Cir. 2022) (quoting Guo v. Ashcroft, 361 F.3d 1194, 1203 (9th Cir.

2004)). The IJ then outlined its analysis, explaining that Petitioners “were not

subjected to other crimes, apart from the robbery of the cell phone, which would

escalate the police and paramilitaries’ statements from ‘mere words’ to imminent

and serious threats.” The IJ concluded its analysis by referencing Sharma v.

Garland, 9 F.4th 1052 (9th Cir. 2021), which sets out the standards for a

cumulative-effect review, id. at 1061–64. In short, the IJ said it was applying a

cumulative-effect review, explicitly conducted that review, and referenced the right

legal standard. Second, the record evidence does not compel the conclusion that Petitioners

experienced past persecution. The IJ discounted the threats against Petitioners

because Alba and her children were never physically harmed, discounted the

detention of Alba’s father based upon its short length and the absence of any

mistreatment, and discounted the injury to Lester’s ankle based upon the extent of

the injury and the length of the recovery. As a reviewing court, we are not allowed

to reach a different conclusion by weighing the evidence differently. See Gutierrez-

Alm v. Garland, 62 F.4th 1186, 1194 (9th Cir. 2023).

Third, the IJ did consider Petitioners’ arguments regarding the country

conditions evidence. The decision repeatedly cites and describes the country

conditions evidence, even noting that “there are hundreds of cases of arbitrary arrests

of opposition members.” But the decision then explains why Petitioners are not

similarly situated to the types of individuals described in the country conditions

evidence, including because their family members have not been treated similarly,

there has been a lengthy passage of time, and Petitioners are no longer members of

an opposition party. In short, the IJ dismissed Petitioners’ arguments based on the

factual determination that their country conditions evidence was inapposite—and

the IJ “does not have to write an exegesis on every contention.” Najmabadi v.

Holder, 597 F.3d 983, 990 (9th Cir. 2010).

2 Fourth, the IJ considered all the relevant evidence. The IJ was not required

to adopt as true Petitioners’ testimony that they are still perceived as opposition

members or the testimony about Alba’s father’s arrest. See Garland v. Ming Dai,

593 U.S. 357, 365 (2021). The IJ explained at length why Petitioners are no longer

perceived as opposition members and expressed reasonable skepticism of the

testimony about the arrest.

Fifth, the IJ also considered the threats against Petitioners. The IJ described

the threats and then weighed them against the evidence showing that Petitioners are

no longer perceived as opposition members. Once again, we cannot reweigh the

competing evidence. See Gutierrez-Alm, 62 F.4th at 1194.

Finally, the majority’s conclusions regarding withholding of removal and

CAT relief follow from its conclusions that the agency erred in denying asylum

relief. Since I disagree with the majority’s conclusions regarding asylum, I also

disagree with its conclusions as to those other forms of relief. Because I would deny

the petition for review in its entirety, I respectfully dissent.