Torres-Penaloza v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 11, 2023
• Docket: 22-777
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 11 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GABINA TORRES-PENALOZA, ANA No. 22-777 IRIS FIERRO-TORRES, & MAURO FIERRO-TORRES, Agency Nos. 208-593-280

Petitioners, 208-593-281

v. 208-593-372

MERRICK GARLAND, Attorney General MEMORANDUM* Respondent.

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

Submitted October 6, 2023** Seattle, Washington

Before: M. SMITH and WARDLAW, Circuit Judges, and MATSUMOTO, District Judge. ***

Gabina Torres-Penaloza and her two adult children, natives and citizens of

Mexico, petition for review of the Board of Immigration Appeals’ (BIA) decision

* 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 Kiyo A. Matsumoto, United States District Judge for the Eastern District of New York, sitting by designation. dismissing their appeal of an Immigration Judge’s (IJ) order denying their

application for asylum, withholding of removal, and protection under the

Convention Against Torture (CAT). We have jurisdiction pursuant to 8 U.S.C.

§ 1252 and deny in part and grant in part the petition. Because the parties are

familiar with the facts, we do not recount them here, except as necessary to provide

context to our ruling.

1. The BIA erred in reviewing the IJ’s nexus determination for clear error,

rather than de novo, with respect to Petitioners’ asylum and withholding of

removal claims. See Umana-Escobar v. Garland, 69 F.4th 544, 552 (9th Cir.

2023) (“[T]he BIA must review de novo whether a persecutor’s motives meet the

nexus legal standards, i.e. whether a protected ground was ‘one central reason’ (for

asylum) or ‘a reason’ (for withholding of removal) for the past or feared harm.”).

When the BIA applies the wrong legal standard to an applicant’s claim, the

appropriate relief from this court is remand for reconsideration under the correct

standard, not independent review of the evidence. Id. at 553 (citing Ornelas-

Chavez v. Gonzales, 458 F.3d 1052, 1058 (9th Cir. 2006)). As such, we remand to

the BIA to apply the proper standard in reviewing the IJ’s denial of Petitioners’

asylum and withholding of removal claims.

2. As to Petitioners’ CAT claim, the BIA found that the record evidence was

insufficient to establish “that it is more likely than not the lead respondent faces an

2 individualized risk of torture with the consent or acquiescence of a public official

or other person acting in an official capacity if returned to Mexico.” Although

Petitioners addressed government acquiescence in their opening brief, they did not

challenge the agency’s conclusion that they failed to establish an individualized

risk of torture. Petitioners argue that the BIA affirmed the IJ solely on

acquiescence grounds, and therefore Petitioners did not need to address the issue of

individualized risk in their petition for review. But the BIA repeatedly stated that

Petitioners failed to establish an “individualized risk of torture” and cited to a

decision of our court setting forth the standard for BIA review regarding the

“likelihood of torture.” See Soto-Soto v. Garland, 1 F.4th 655, 661 (9th Cir. 2021).

3. The Petitioners’ failure to challenge the agency’s conclusion regarding the

likelihood of torture in their opening brief amounts to waiver of the argument.

Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011), overruled in part on other

grounds by Alam v. Garland, 11 F.4th 1133, 1135 (9th Cir. 2021) (en banc).

Because an applicant for CAT relief has the burden to establish an individualized

risk of torture, see, e.g., Fon v. Garland, 34 F.4th 810, 816 (9th Cir. 2022) (citing 8

C.F.R. § 208.16(c)(2)), we deny the petition for review as to Petitioners’ CAT

claim.

The petition is DENIED in part and REMANDED in part. The motion

to stay removal (ECF No. 2) is DENIED AS MOOT.