Tulio Cantarero-Lemus v. Robert Wilkinson

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 12, 2021
• Docket: 19-71287
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 12 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

TULIO ISMAEL CANTARERO-LEMUS, No. 19-71287

Petitioner, Agency No. A079-808-401

v. MEMORANDUM* ROBERT M. WILKINSON, Acting Attorney General,

Respondent.

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

Submitted February 5, 2021** Seattle, Washington

Before: McKEOWN and PAEZ, Circuit Judges, and ORRICK,*** District Judge.

Tulio Ismael Cantarero-Lemus, a native and citizen of Honduras, petitions

for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his

* 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 William Horsley Orrick, United States District Judge for the Northern District of California, sitting by designation. appeal from an immigration judge’s (“IJ”) decision denying his application for

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

Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial

evidence the agency’s factual findings. Zehatye v. Gonzales, 453 F.3d 1182, 1184–

85 (9th Cir. 2006). “A finding . . . is not supported by substantial evidence when

any reasonable adjudicator would be compelled to conclude to the contrary based

on the evidence in the record.” Bringas-Rodriguez v. Sessions, 850 F.3d 1051,

1059 (9th Cir. 2017) (en banc) (citation and internal quotation marks omitted).

The parties are familiar with the facts, so we do not repeat them here. We grant in

part, deny in part, and dismiss in part the petition for review.

In his opening brief, Cantarero-Lemus does not raise, and therefore waives,

any challenge to the agency’s determinations that the past harm he experienced did

not rise to the level of persecution, that he failed to establish he was or would be

persecuted on account of a political opinion, and that his proposed social groups

“young Honduran men who have opposed or resisted the MS 18 gang” and “family

members of business owners who are targeted by the MS 18 gang” were not

cognizable. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079–80 (9th Cir. 2013)

(noting that issues not specifically raised and argued in a party’s opening brief are

waived); Bazuaye v. INS, 79 F.3d 118, 120 (9th Cir. 1996) (per curiam) (“Issues

raised for the first time in the reply brief are waived.”).

2 We do not address Cantarero-Lemus’s contentions as to the cognizability of

his remaining family-based particular social group and the issue of whether the

government is unwilling or unable to protect him because the BIA did not deny

relief on these grounds. See Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th

Cir. 2011) (“In reviewing the decision of the BIA, we consider only the grounds

relied upon by that agency.” (citation omitted)).

The BIA’s determination that Cantarero-Lemus failed to establish that he

would be persecuted “on account of” the particular social group of his family is not

supported by substantial evidence. See Ayala v. Holder, 640 F.3d 1095, 1097 (9th

Cir. 2011) (per curiam) (noting that even if membership in a particular social group

is established, an applicant must still show that “persecution was or will be on

account of his membership in such group”). Rather, the record compels the

contrary conclusion. The withholding statute requires that the protected ground be

only “a reason” for the alleged persecution. Barajas-Romero v. Lynch, 846 F.3d

351, 357–60 (9th Cir. 2017) (emphasis added). The evidence Cantarero-Lemus

presented with respect to the murders, attempted murder, and attempted abduction

his family suffered at the hands of the gang satisfies this “diluted . . . nexus

requirement.” Id. at 360.

The IJ and BIA ascribe pecuniary motives to the perpetrators of these

crimes, who the IJ described as “going after money from business owner[s].”

3 While pecuniary motives may have been “a reason” for this persecution, the record

compels the conclusion that it was not the only reason. Cantarero-Lemus’s expert

offers ample evidence, based on his extensive knowledge of organized crime in

Honduras, that this persecution was also on account of family ties. And, under the

“a reason” standard for withholding of removal—which is a “weaker motive[]”

standard than that under the asylum statute—these two motives can coexist.

Barajas-Romero, 846 F.3d at 359–60 (remanding to the agency to determine

whether attacks that it concluded were designed to extort money under the

incorrect “one central reason” standard could also have been “because of or on

account of” petitioner’s anti-corruption opinion under the correct “a reason”

standard); see Ayala v. Sessions, 855 F.3d 1012, 1021 (9th Cir. 2017) (“[W]here

the petitioner’s membership in a particular social group (in this case, a family) is at

least ‘a reason’ for the extortion, it is sufficient to meet the nexus requirement for

withholding of removal.”). Accordingly, we conclude that the record compels the

conclusion that Cantarero-Lemus has established a nexus between past or future

harm and the particular social group of the Cantarero-Lemus-Hernandez family,

and we grant his petition with respect to his withholding of removal claim.

As to CAT relief, we lack jurisdiction to consider Cantarero-Lemus’s

contention that he could only receive protection from the government if he paid it,

because he failed to raise this contention before the BIA. See Barron v. Ashcroft,

4 358 F.3d 674, 677–78 (9th Cir. 2004) (holding that this court lacks jurisdiction to

review claims not presented to the agency). Substantial evidence supports the

agency’s denial of CAT relief because Cantarero-Lemus failed to show it is more

likely than not he would be tortured by or with the consent or acquiescence of the

government if returned to Honduras. See Aden v. Holder, 589 F.3d 1040, 1047

(9th Cir. 2009). Accordingly, we deny Cantarero-Lemus’s petition with respect to

his CAT claim.

The parties shall bear their own costs.

PETITION FOR REVIEW GRANTED in part; DENIED in part; and

DISMISSED in part.