Tomas-Cruz v. Bondi

Opinion

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT MAY 13 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS JUAN TOMAS-CRUZ; et al., No. 23-4046 Agency Nos. Petitioners, A215-910-717 A215-910-365 v. A215-910-366 A215-910-718 PAMELA BONDI, Attorney General, A215-910-719 Respondent. ORDER

Before: WARDLAW, CALLAHAN, and HURWITZ, Circuit Judges.

The panel unanimously votes to grant the government’s petition for panel

rehearing to the extent it requests the panel amend the memorandum disposition.

Dkt. 43. The memorandum disposition filed on February 27, 2025, is amended by

the attached amended memorandum disposition. The amendments are:

• The last sentence of the first paragraph on page 3 is deleted and replaced by

affirm the BIA on a ground upon which it did not rely,” see Arrey v. Barr, 916

F.3d 1149, 1157 (9th Cir. 2019) (cleaned up), we grant the petition for review

with respect to the CAT claim and remand for further proceedings.>

• The last sentence in the disposition is deleted and replaced by

GRANTED in part and DENIED in part; REMANDED.> No further petitions for rehearing or rehearing en banc to the amended disposition

will be entertained.

2 23-4046 NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 13 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JUAN TOMAS-CRUZ; PETRONA No. 23-4046 FLORIDALMA LOPEZ- Agency Nos. DIEGO; JOSELYNE MARLENY TOMAS- A215-910-717 LOPEZ; MARVIN ALEXANDER A215-910-365 TOMAS-LOPEZ; JUAN DANIEL A215-910-366 TOMAS-LOPEZ, A215-910-718 A215-910-719 Petitioners,

v. AMENDED MEMORANDUM*

PAMELA BONDI, Attorney General,

Respondent.

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

Submitted February 6, 2025** Pasadena, California

* 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). Juan Tomas-Cruz, his wife, and their three minor children petition for review

of a decision by the Board of Immigration Appeals (“BIA”) dismissing an appeal

from an order of an Immigration Judge (“IJ”) denying asylum, withholding of

removal, and protection under the Convention Against Torture (“CAT”). 1

Exercising jurisdiction under 8 U.S.C. § 1252, we deny the petitions in part and grant

them in part.

1. The IJ denied CAT relief because Tomas-Cruz failed to show

government acquiescence and an inability to relocate within Guatemala. The BIA

declined to reach the merits of that decision, instead finding that Tomas-Cruz had

waived review of the IJ’s ruling.

Tomas-Cruz’s brief to the BIA, however, was “sufficient to put the BIA on

notice” that he was challenging the denial of CAT protection. Bare v. Barr, 975 F.3d

952, 960 (9th Cir. 2020). The brief argued that the IJ’s “[f]ailure to fully and properly

consider the human rights report for Guatemala tainted the Judge’s holding as to all

three forms of relief.” Specifically, the brief contended that ignoring the lower

“status of the indigenous population in Guatemala” had “obscured the Judge’s

reasoning as to the times Respondent tried to seek protection from the police.” This

argument directly challenges the IJ’s conclusion that the failure of the police to

1 Although his wife and children filed separate applications for relief, their claims are based solely on Tomas-Cruz’s experiences.

2 23-4046 investigate crimes reported by Tomas-Cruz was because of the limited information

he provided rather than acquiescence. By challenging the rationale underlying the

IJ’s sole dispositive reason for denying CAT protection, Tomas-Cruz “apprise[d] the

BIA of the particular basis” for his “claim that the IJ erred.” Rizo v. Lynch, 810 F.3d

688, 692 (9th Cir. 2016). Because the BIA’s waiver finding was erroneous and

because we “cannot affirm the BIA on a ground upon which it did not rely,” see

Arrey v. Barr, 916 F.3d 1149, 1157 (9th Cir. 2019) (cleaned up), we grant the petition

for review with respect to the CAT claim and remand for further proceedings.

2. Substantial evidence supports the agency’s conclusion that Tomas-

Cruz was not eligible for asylum or withholding of removal because he did not

establish that his status as a Konjobal indigenous Mayan was a reason for any past

or feared future mistreatment. When asked why he was extorted by gang members,

Tomas-Cruz said, “Because I worked in construction and I—they know that I get

paid well.” And he acknowledged that other construction workers, but no one else

in his family, received similar threats.

Tomas-Cruz argues that extortion and physical harm can constitute

persecution. However, the IJ denied relief based on a lack of nexus, not a lack of

persecution. He also argues the agency failed to consider portions of the country

conditions report favorable to his positions. But none of this evidence bears on the

agency’s determinative finding of a lack of nexus.

3 23-4046 3. Tomas-Cruz argues that the BIA denied him due process through its

“[f]ailure” to independently “consider arguments or evidence” by adopting the IJ’s

decision and citing Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994). But by

citing Matter of Burbano, the BIA signified “that it had conducted an independent

review of the record and had exercised its own discretion in determining that its

conclusions were the same as those articulated by the IJ.” Abebe v. Gonzales, 432

F.3d 1037, 1040 (9th Cir. 2005).

Petition GRANTED in part and DENIED in part; REMANDED.2

2 The government’s motion to appear remotely for oral argument, Dkt. 36, is denied as moot. The stay of removal, Dkt. 3, will dissolve upon the issuance of the mandate.

4 23-4046