Mendez Esteban v. Garland ( 2023 )

United States Court of Appeals
For the First Circuit
No. 22-1215
ALFONSO ESTUARDO MENDEZ ESTEBAN,
Petitioner,
v.
MERRICK B. GARLAND,
UNITED STATES ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Kayatta, Gelpí, and Montecalvo,
Circuit Judges.
Patrick T. Roath, with whom Ropes & Gray LLP, Samuel L.
Brenner, Emma Coreno, and Rachel Scholz-Bright were on brief for
petitioner.
John F. Stanton, Trial Attorney, Office of Immigration
Litigation, with whom Brian Boynton, Principal Deputy Assistant
Attorney General, Civil Division, and Jessica E. Burns, Senior
Litigation Counsel, Office of Immigration Litigation, were on
brief for respondent.
May 11, 2023
MONTECALVO, Circuit Judge. Alfonso Estuardo Mendez
Esteban ("Mendez") has petitioned for review of a decision from
the Board of Immigration Appeals ("BIA") dismissing his appeal of
an Immigration Judge's ("IJ") decision denying his applications
for asylum, withholding of removal, and protection under the
Convention Against Torture ("CAT"), and ordering his removal to
Guatemala.
Fleeing death threats and physical violence at the hands
of a rival political party in Guatemala, Mendez came to the United
States in January 2015 seeking protection. Soon after he arrived
in the United States, the Department of Homeland Security ("DHS")
initiated removal proceedings against him. Before the IJ, Mendez
applied for asylum and related humanitarian relief. The IJ
concluded that Mendez had suffered political persecution in
Guatemala and was therefore presumed to have a well-founded fear
of future persecution. The IJ went on, however, to find that DHS
had successfully rebutted that presumption based on a showing of
changed country conditions. The IJ therefore denied Mendez's
claims for asylum and related relief because he found that Mendez
had failed to establish the requisite basis for his fear. Mendez
appealed to the BIA. The BIA affirmed the IJ's decision, and this
petition followed.
For the reasons that follow, we grant the petition and
vacate the decisions of the BIA and IJ as to Mendez's political
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opinion-based asylum and withholding of removal claims, remand
for further proceedings on those claims, and deny what remains of
the petition.
I. Factual Background1
Mendez is a Guatemalan citizen of indigenous ancestry.
In 2013, he joined Guatemala's Libertad Democrática Renovada party
("LIDER"). Mendez believed LIDER's community-centric
agenda -- which advocated for greater investment in local
infrastructure and municipal services -- stood in stark contrast
to what he viewed as the corrupt politics of LIDER's political
rival, the National Unity of Hope party ("UNE"). At the time,
UNE controlled the regional government where Mendez lived, but
LIDER was organizing to challenge that control in Guatemala's 2015
elections. By 2014, Mendez was directing LIDER's advertising and,
in furtherance of LIDER's effort to defeat UNE in the 2015
elections, actively campaigning for LIDER throughout the region.
In November 2014, Mendez, his brother-in-law Armando,
and two other LIDER members traveled to a nearby community to
campaign for LIDER candidates. During this trip, six UNE members
approached Mendez and his fellow LIDER members and began making
death threats. The UNE members also warned against them
1 We draw the relevant facts from the administrative record.
See Adeyanju v. Garland, 27 F.4th 25, 31 (1st Cir. 2022). This
includes Mendez's testimony before the IJ, which the IJ found to
be credible. See id.- 3 -
continuing to campaign for LIDER in the community. After this
confrontation, Mendez and the other LIDER members left.
The next month, Mendez and the same three LIDER members
traveled again -- this time to a different community -- to
campaign on behalf of LIDER. While the LIDER members were
distributing LIDER materials and meeting with potential recruits,
two armed UNE members approached the group and asked what they
were doing there. When Mendez responded that he was campaigning
for LIDER, one UNE member beat him. As a result of the beating,
Mendez was hospitalized for one night where he was treated with
pain killers.
About one week later, on December 23, 2014, Mendez again
traveled out-of-town with the same group of LIDER members. This
time, they drove to a nearby community to pick up LIDER supporters
for a Christmas celebration. At the prearranged pick-up location,
UNE members were also waiting for a ride from members of their
party. Recognizing Mendez's car, the UNE members approached it
and confronted Mendez. The UNE members brandished guns, accused
Mendez of targeting LIDER recruitment at UNE members, and fired
warning shots into the air. Fearing for his life, Mendez left.
He never returned to that community or the other two communities
where he had been targeted by members of UNE.
On December 30, 2014 -- seven days after Mendez
witnessed the UNE members fire warning shots -- his brother-in-law
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Armando's body was found with a fatal gunshot wound to his chest.
The police were called, but Armando's death was never
investigated. Mendez believes that Armando, Mendez's only family
member known to publicly support LIDER, was killed by members of
UNE. It was Armando's death that made Mendez "decide[] to leave
the country."
Soon after, Mendez fled Guatemala for the United States.
He presented himself at a U.S. port of entry on January 18, 2015,
and during an inspection interview, informed an officer that he
feared for his life in Guatemala. DHS detained Mendez and placed
him in removal proceedings where he promptly conceded his
removability. While detained, Mendez passed a credible fear
interview and was released on parole to seek asylum.
II. Procedural History
Having conceded removability, Mendez's removal
proceedings centered on his eligibility for humanitarian relief.
On December 11, 2015, Mendez timely applied for asylum,
withholding of removal, and CAT protection. Mendez alleged that
he had been persecuted in Guatemala based on two independently
protected grounds -- his political opinion and his membership in
the particular social group of males of indigenous ancestry who
are politically active in Guatemala -- and argued that he would
be harmed or killed if he were returned to Guatemala.
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A. The IJ's Decision
At the merits hearing before the IJ, Mendez testified
to the scope of his political activity in Guatemala, his work for
LIDER, his encounters with members of UNE, and the circumstances
surrounding Armando's death. Finding Mendez's testimony credible,
the IJ concluded that Mendez had suffered political persecution
in Guatemala, giving rise to a presumption of a well-founded fear
of future persecution.2 Relying on a 2017 State Department country
conditions report and Mendez's own testimony, the IJ further
found, however, that DHS had rebutted that presumption by showing
fundamental changes to the conditions in Guatemala that negated
the objective basis for Mendez's once well-founded fear. The IJ
therefore found Mendez ineligible for asylum and related relief
because he failed to prove that his asserted fear was -- at a
minimum -- well-founded. The IJ reasoned that "because the UNE
party is no longer in power, there[] [had] been a change in
circumstances such that [Mendez] no longer has well-founded fear
of the UNE party."
The IJ also denied Mendez's alternative basis for
asylum: persecution on account of his membership in a proposed
2 The IJ concluded that, taken together, the following three
incidents amounted to past persecution on account of Mendez's
political opinion: (1) UNE members threatened "they would kill
[Mendez]"; (2) armed UNE members physically beat Mendez; and
(3) UNE members threatened Mendez by shooting bullets into the
air.
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particular social group comprised of "[m]ales of indigenous
ancestry who are politically active in Guatemala." The IJ found
insufficient evidence of a nexus between UNE's targeting of Mendez
and his indigenous ancestry to establish the past persecution or
fear of future persecution required for asylum or withholding of
removal. The IJ therefore concluded that Mendez could not
establish eligibility for asylum or withholding of removal on
account of membership in his proposed particular social group.
Without discussing the merits of his claims, the IJ also
denied Mendez's political violence-based requests for withholding
of removal and CAT protection. The IJ found that because Mendez
failed to meet asylum's less onerous showing of a "well-founded"
fear of future political persecution, he necessarily failed to
make the heightened showing of likely future harm necessary for
withholding of removal. The IJ further found that Mendez had not
shown that it was more likely than not that he would be tortured
if returned to Guatemala, as is necessary for protection under
CAT. Accordingly, the IJ denied all requested relief and ordered
Mendez removed to Guatemala. Mendez appealed to the BIA.
B. The BIA's Decision
On appeal to the BIA, Mendez challenged, inter alia,
the IJ's conclusion that changed country conditions in Guatemala
had obviated any need for political asylum. Specifically, Mendez
argued that the IJ erred in finding that DHS had satisfied its
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rebuttal burden where the record lacked evidence that changes in
Guatemala undermined the objective basis for Mendez's particular
substantiated fear.
The BIA affirmed the IJ's conclusion that DHS had met
its rebuttal burden based on four facts, drawn in part from the
2017 State Department country conditions report and in part from
Mendez's own testimony: (1) that "Guatemala has had a peaceful
transition of power;" (2) "that the rival political party, . . .
[UNE], whom the respondent fears is no longer in power at the
national level"; (3) that "the political party [Mendez] was a
member of, . . . [LIDER], is no longer in existence"; and (4) that
Mendez "has not been threatened since the last election and no
one has contacted or threatened [Mendez's] family in Guatemala on
his behalf since he fled the country in 2015." Accordingly, the
BIA discerned no error, dismissed Mendez's appeal, and affirmed
the IJ's decision denying all forms of requested relief. Mendez
petitioned this court for review.3
III. Standard of Review
We review the BIA's decision in this case as the
agency's final decision and look to the IJ's decision only "to
the extent that the BIA deferred to or adopted the IJ's reasoning."
Chavez v. Garland, 51 F.4th 424, 429 (1st Cir. 2022).
3Accompanying his petition, Mendez filed an unopposed motion
to stay his removal, which this court granted on April 1, 2022.
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Questions of law are reviewed de novo, "subject to
appropriate principles of administrative deference."
Larios v. Holder, 608 F.3d 105, 107 (1st Cir. 2010). Factual
findings are reviewed under the deferential substantial-evidence
standard, "meaning we accept the findings 'as long as they are
supported by reasonable, substantial[,] and probative evidence on
the record considered as a whole.'" Aguilar-De Guillen
v. Sessions, 902 F.3d 28, 32 (1st Cir. 2018) (quoting Singh v.
Holder, 750 F.3d 84, 86 (1st Cir. 2014)).
IV. Discussion
A. Asylum
To qualify for asylum, an applicant must be a "refugee,"
as defined by the Immigration and Nationality Act ("INA").
8 U.S.C. § 1158(b)(1); 8 C.F.R. § 1208.13(a). Under the INA, a
refugee is a noncitizen who is "unable or unwilling to return to"
his country of nationality "because of persecution or a
well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political
opinion." 8 U.S.C. § 1101(a)(42)(A). Here, Mendez claimed
persecution on account of two independent grounds: political
opinion and membership in a particular social group.
1. Past Persecution - Political Opinion
When an IJ concludes that an asylum seeker experienced
past persecution, that applicant is entitled to a rebuttable
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presumption of a well-founded fear of future persecution.
8 C.F.R. § 1208.13(b)(1). To rebut this presumption, DHS must
prove, by a preponderance of the evidence, that "[t]here has been
a fundamental change in circumstances such that the applicant no
longer has a well-founded fear of persecution."4 8 C.F.R.
§ 1208.13(b)(1)(i)(A); see Palma-Mazariegos v. Gonzales, 428 F.3d
30, 34 (1st Cir. 2005).
Here, the IJ concluded that Mendez suffered past
persecution in Guatemala on account of his political opinion and
afforded Mendez the benefit of the presumption. DHS does not
challenge that finding. However, the IJ also concluded -- and
the BIA agreed –- that DHS had successfully rebutted that
presumption, rendering Mendez ineligible for asylum. This
required DHS to prove that the conditions in Guatemala had
"changed so dramatically" since December 2014 "as to undermine
the well-foundedness of [Mendez's] fear." Chreng v. Gonzales,
471 F.3d 14, 21 (1st Cir. 2006).
Because the denial of Mendez's asylum claim turned on
reasoning about specific facts, we review the decision below for
substantial evidence. See Moreno v. Holder, 749 F.3d 40, 43 (1st
4DHS can also rebut the presumption of well-founded fear by
showing that "[t]he applicant could avoid future persecution by
relocating to another part of the applicant's country . . . [and]
it would be reasonable to expect the applicant to do so." 8 C.F.R
§ 1208.13(b)(1)(i)(B). Because this avenue is not pursued here,
we need not address it.
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Cir. 2014). On the record before us, we conclude that, even under
the deferential substantial evidence standard, the record fails
to establish changed conditions in Guatemala that have negated
Mendez's already substantiated fear.
i. Country Conditions Report
In affirming the IJ's conclusion that changed conditions
in Guatemala eliminated Mendez's need for political asylum, the
BIA relied primarily on information in the United States
Department of State's 2017 country conditions report on Guatemala
(the "2017 report"). But state department reports, even where
"probative of country conditions," Palma-Mazariegos, 428 F.3d at
36, seldom can carry DHS's burden alone. See Quevedo v. Ashcroft,
336 F.3d 39, 44 (1st Cir. 2003) ("Evidence from the government
about changed country conditions does not automatically rebut the
presumption."). That is so because these reports are not
ordinarily tailored to the facts of any particular case. See id.("[Country conditions] evidence is often general in nature and
may not be an adequate response to an applicant's showing of
specific personal danger."). Rather, they provide generic
overviews of the geopolitical landscape in the removal country.
See Palma-Mazariegos, 428 F.3d at 36; Fergiste v. I.N.S., 138 F.3d
14, 19 (1st Cir. 1998) (country conditions report discussed
"political and social conditions in generalized terms"). And
"abstract evidence of generalized changes in country conditions,
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without more, cannot rebut a presumption of a well-founded fear
of future persecution." Palma-Mazariegos, 428 F.3d at 35.
To rebut this presumption with a country conditions
report alone, DHS must prove that the fundamental change conveyed
in the report "negate[s] [the] petitioner's particular fear." Id.So, while "account[ing] . . . [for] the individual's
particularized substantiated fear" typically demands more
evidence than the state department's country conditions assessment
provides, Chreng, 471 F.3d at 21, a report that "convincingly
demonstrates material changes in country conditions" that
themselves directly undercut the objective basis for the
petitioner's presumptive fear "may be sufficient, in and of it
itself," to support rebuttal of the presumption.
Palma-Mazariegos, 428 F.3d at 36; see Waweru v. Gonzales, 437 F.3d
199, 203-05 (1st Cir. 2006) (finding generalized country
conditions sufficient to rebut petitioner's presumption of
well-founded fear of political persecution where persecuting
government had been ousted from power with no reasonable
likelihood of return). And where rebuttal is premised on
particularized evidence from the report itself, "[s]uch focused
evidence is to be distinguished from cursory statements or
broad-brush generalizations about changed country conditions."
Palma-Mazariegos, 428 F.3d at 36.
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Because Mendez experienced past persecution on account
of his political opposition to UNE,5 the critical question here
is whether the 2017 report demonstrates that conditions in
Guatemala have changed such that expressing one's opposition to
UNE is no longer an objective reason to fear persecution. Here,
the BIA upheld the IJ's finding of changed country conditions
based on two facts drawn from the 2017 report (and repeated in
some cases in Mendez's testimony): (1) the diminution of UNE's
power on the national level and (2) a peaceful transition of power
following the 2015 elections. We review each fact drawn from the
country conditions report in turn.
We begin with the IJ and BIA's reliance on UNE's changed
political power in Guatemala. The BIA held that "[t]he
record . . . establishes that Guatemala has had a peaceful
transition of power and that the rival political party, [UNE],
whom the respondent fears is no longer in power at the national
level."6 We disagree.
Based on Mendez's credible testimony, the IJ found that
5
Mendez had suffered past persecution on account of his opposition
to "the corrupt political party in power in his region."
6The IJ noted -- in a comment adopted by the BIA -- that
Mendez "testified that UNE is no longer in power as the majority
party." However, the parties agree this statement is not
reflected in the transcript, and we therefore do not credit it
here. See Aguilar-De Guillen, 902 F.3d at 32. The IJ's statement
likely was drawn from mishearing the following exchange:
[QUESTION] TO MR. MENDEZ ESTEBAN[:]
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Unlike the BIA, we view the 2017 report to be
inconclusive on UNE's power over political institutions in
Guatemala following the 2015 elections. While the IJ and the BIA
equated UNE's loss of the presidency in 2015 with "no longer
[being] in power at the national level," we find no support for
that inference in the record. The 2017 report contains no
information about the political composition of the Guatemalan
legislature or UNE's representation in regional and local
governments.
Likewise, we find nothing in the record to suggest that
UNE's loss of the presidency prevents UNE from persecuting its
political opponents. To the contrary, Mendez credibly testified
that UNE is the majority party in the country, is active in the
region where Mendez lived, and is "on the elections" for the year
2020. Even the IJ recognized UNE's continued political influence
in Guatemala in its analysis of Mendez's past persecution claim,
noting that:
The UNE party is not the majority party in
Guatemala, correct?
MR. MENDEZ ESTEBAN [RESPONSE:]
I think now it is.
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UNE is a political party who does hold
representation in the political scheme and
structure of Guatemala. They have at times
had majority power in the ruling party, and
at times have had the leader -- the head of
state of the country as a member of their
party. Thus, regardless of the UNE's current
representation and power structure, they are
a political party capable of exerting the
influence of the government. . . .
Given the record before us, we fail to see how the 2017
report's reference to UNE's loss of the presidency in 2015
supports the BIA's finding that political conditions in Guatemala
have "fundamental[ly] change[d]" in a way that prevents UNE from
persecuting its political opponents.
Nevertheless, even if UNE had become powerless on the
national level, DHS still cannot satisfy its burden with the
general statements about national politics untethered to Mendez's
particular substantiated fear. Mendez's presumptive fear turns
on UNE's power and influence at the local and regional levels of
government. It follows that a generic statement about UNE's
national profile, without more, lacks the requisite connection to
Mendez's particular fear. See Hernandez-Barrera v. Ashcroft, 373
F.3d 9, 24 (1st Cir. 2004). Such attempts at improperly equating
a party's diminished posture on the national level to its
influence on local politics is precisely what the particularized
evidence requirement was intended to prevent. See Fergiste, 138
F.3d at 19.
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Finally, in support of its conclusion that Guatemala
had a peaceful transition of power after the 2015 election, the
BIA cited to the 2017 report's statement that "[a]n Organization
of American States international election observation mission
characterized the [2015] elections as generally free and fair."
But Mendez points out that the 2017 report does not define
"generally free and fair," and therefore does not rule out
occurrences of political violence or particularized persecution
during the 2015 election.
We need not speculate about the scope of a "generally
free and fair" election where DHS does not contest the IJ's
conclusion that Mendez experienced political persecution while
campaigning for the LIDER party in the lead up to the same
Guatemalan elections described in the 2017 report. It therefore
cannot be said that the 2017 report's assertion that the 2015
elections were "generally free and fair" evidences a fundamental
change that negates Mendez's fear of political violence given that
Mendez was persecuted for his political opinion around that time.
Accordingly, we find the BIA's interpretation of the 2017 report's
statement unsupported by substantial evidence.
Seeing no way to read the 2017 report as "convincingly
demonstrat[ing] material changes in [political] conditions that
affect the specific circumstances of [Mendez's] claim," Dahal
v. Barr, 931 F.3d 15, 19 (1st Cir. 2019) (quoting
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Palma-Mazariegos, 428 F.3d at 36), we find that the 2017 report,
alone, is not substantial evidence that changed country conditions
have eliminated the objective basis for Mendez's fear.
Accordingly, the BIA's conclusion -- that since Mendez departed
Guatemala in January 2015, fundamental changes to the conditions
there have negated the objective basis for his particular
fear -- is not supported by substantial evidence.
ii. Mendez's Testimony
Apart from the 2017 report, the IJ and BIA also referred
to the disbandment of LIDER and the lack of harm to Mendez's
remaining family to bolster their conclusions that the conditions
in Guatemala no longer support a presumption of fear. Mendez
argues that these facts are of no legal significance to his claims
and that the BIA's reliance constitutes legal error. We agree.
We begin with the disbandment of LIDER. The BIA
considered LIDER's dissolution to be evidence "that the conditions
in Guatemala [had] changed dramatically since [Mendez] departed
in 2015." But Mendez presented the persecution he suffered in
terms of his opposition to UNE, not his membership in LIDER. This
formulation was adopted by the IJ, who held that Mendez had
suffered past persecution on account of his "political
opinion . . . against the corrupt political party in power in his
region." We therefore fail to see how the disbandment of the
LIDER party directly bears on the well-foundedness of Mendez's
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fear of persecution at the hands of UNE -- particularly given
Mendez's credible testimony that he may engage in public
opposition to UNE if returned. Considering that DHS bears the
burden to prove how changed conditions undermine Mendez's
presumptive fear, we find that the fact of LIDER's disbandment is
of insufficient consequence.7
We turn next to UNE's treatment of Mendez's family. The
fact that members of Mendez's immediate family have continued to
reside in Guatemala unharmed is inconsequential unless the record
supports a finding that the lack of harm to Mendez's family in
Guatemala -- either alone or combined with the content of the
country conditions report -- undermines the particular basis for
Mendez's presumptively well-founded fear. Having found nothing
in the record to support such an inference, we conclude that the
BIA erred.
In Mendez's case, the fact that UNE has not persecuted
his family in Guatemala bears little on whether UNE would
persecute Mendez himself if returned. Assertions about remaining
family members are rarely probative as rebuttal evidence where,
as here, a petitioner's fear is presumptively well-founded and it
7Mendez also contends that the BIA wrongly assumed the LIDER
party had disbanded due to dwindling support or other internally
driven factors. We need not reach this argument where the factual
record on this question is sparse, and the formal status of LIDER
in Guatemala bears little on our analysis.
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is DHS’s burden to prove otherwise. See Dahal, 931 F.3d at 21(finding lack of harm to petitioner's family after petitioner fled
to be "of limited significance" to the calculus of whether changed
circumstances had negated petitioner's particular fear). Because
of this burden shift, it is only when the record shows that a
change in country conditions was accompanied by a corresponding
change to the treatment of family members that this kind of
information can favor rebuttal. See Yatskin v. I.N.S., 255 F.3d
5, 10-11 (1st Cir. 2001) (considering lack of harm to remaining
family in changed conditions calculus where "[a]fter testifying
that his family had suffered retribution for his [anti-communist]
political actions, [petitioner] admitted that they had not
experienced any problems" since the fall of the Soviet Union).
Even then, it is "entitled to weight in the decisional calculus
only where the family members are similarly situated" to the
petitioner. Morales-Morales v. Sessions, 857 F.3d 130, 134 n.1
(1st Cir. 2017) (cleaned up); see Nesimi v. Gonzales, 233 F. App'x
11, 14 (1st Cir. 2007) (per curiam) (unpublished decision)
(finding safety of remaining family in Albania supported DHS's
rebuttal burden where "a brother active in the same political
party with which [petitioner] was involved" remained without
persecution).
In other words, to be probative of whether circumstances
have changed in relation to the petitioner's well-founded fear,
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the family members must possess, or be otherwise associated with,
the protected characteristic on account of which the petitioner
was persecuted.8 We see no such overlap here where the record
contains no evidence that Mendez's family in Guatemala was
politically active,9 let alone openly expressing opposition to
UNE. In light of this, the lack of harm to remaining family
Unlike this case, nearly all the cases that DHS cites to
8
in an attempt to counter this proposition lack findings of past
persecution and, therefore, are reviewed under a framework where
the noncitizen bore the burden of establishing a well-founded
fear. See Cabas v. Holder, 695 F.3d 169 (1st Cir. 2012); Sihombing
v. Holder, 581 F.3d 41 (1st Cir. 2009); Rashad v. Mukasey, 554
F.3d 1 (1st Cir. 2009); Touch v. Holder, 568 F.3d 32 (1st Cir.
2009); Jamal v. Mukasey, 531 F.3d 60 (1st Cir. 2008); Guzman
v. I.N.S., 327 F.3d 11 (1st Cir. 2003); Chan v. Ashcroft, 93
F. App'x 247, 252(1st Cir. 2004) (unpublished decision). To the
extent DHS cites to cases where this court -- in considering
whether DHS met its rebuttal burden -- has relied on the safety
of remaining family members without requiring evidence that those
family members shared or were associated with the petitioner's
political views, we do not find them persuasive.
First, those cases antecede our decision in Dahal, which
clarified that the treatment of remaining family members is
relevant to the rebuttal analysis only where the family members
are similarly situated to the petitioner. 931 F.3d at 21. Second,
even setting Dahal aside, where we have previously referred to
the safety of remaining family members in this context, it has
been to reinforce an independently supported finding of changed
country conditions. See Hasan v. Holder, 673 F.3d 26 (1st Cir.
2012); Nesimi, 233 F. App'x at 14; Yatskin, 255 F.3d at 10-11.
Accordingly, the experience of those family members was not given
determinative weight.
In fact, the only politically active family member Mendez
9
referenced in his testimony was his brother-in-law, Armando, who
had been campaigning with Mendez during the relevant incidents
with UNE members. Armando's body was found with a gunshot wound
to his chest in December 2014. Mendez testified that he believed
UNE members had killed Armando.
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should not have weighed into the BIA's assessment of whether
conditions in Guatemala had changed in relation to Mendez's
particular fear.
The BIA and IJ also considered that Mendez "has not been
threatened since the last election and no one has contacted or
threatened [his] family in Guatemala on his behalf since he fled
the country in 2015" as further evidence that conditions
underlying Mendez's fear had changed. But we find nothing in the
record to suggest that UNE had the desire or ability to either
contact Mendez in the United States or intimidate his family in
Guatemala while he resided in the United States. And, regardless,
where the burden rests with DHS to establish changed country
conditions, Mendez need not make an affirmative showing that UNE
continues to target him or his family while Mendez is residing in
the United States. Accordingly, to the extent that the BIA relied
on these facts, it did so in error.
To summarize, the 2017 report and the testimony from
Mendez do not -- together or independently -- establish that
changes in Guatemala have fundamentally altered the specific
conditions that gave rise to Mendez's substantiated claim of
political persecution. Accordingly, the BIA's conclusion that
DHS rebutted Mendez's presumption of well-founded fear is not
supported by substantial evidence. We therefore find Mendez
statutorily eligible for asylum. See Fergiste, 138 F.3d at 19.
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Because asylum is a discretionary form of relief, we remand to
the agency for further proceedings before the IJ to determine
whether to grant Mendez's qualifying application for asylum. See
id. at 19-20.
2. Past Persecution - Particular Social Group
In his petition, Mendez also argues that the BIA erred
in affirming the IJ's denial of his independent claim for asylum
based on persecution for his membership in the particular social
group of males of indigenous ancestry who are politically active
in Guatemala. Having found Mendez statutorily eligible for asylum
on political opinion grounds, we need not reach this issue.
B. Withholding of Removal
Next, we turn to Mendez's alternative request for
withholding of removal pursuant to 8 U.S.C. § 1231(b)(3). To be
entitled to withholding of removal, Mendez must establish that
his "life or freedom would be threatened in [Guatemala] on account
of race, religion, nationality, membership in a particular social
group, or political opinion." 8 C.F.R. § 1208.16(b). To meet
this burden, Mendez "must demonstrate a 'clear probability' of
persecution, which is a more stringent standard than the
'well-founded fear of persecution' that determines an applicant's
eligibility for asylum." Dahal, 931 F.3d at 22 (quoting Fergiste,
138 F.3d at 20). But if a petitioner makes that showing,
withholding of removal becomes mandatory unless the petitioner is
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statutorily barred from the relief. I.N.S. v. Aguirre-Aguirre,
526 U.S. 415, 420 (1999); 8 U.S.C. § 1231(b)(3).
Here, Mendez's withholding claim mirrors his asylum
claim. As with asylum, a finding of past persecution in the
withholding context triggers a presumption of a clear probability
that the applicant's "life or freedom would be threatened in the
future," thereby entitling them to withholding of removal.
8 C.F.R. § 1208.16(b)(1)(i). "To rebut that presumption, [DHS]
bears the burden to prove by a preponderance of the evidence that
country conditions have changed such that it is no longer more
likely than not that [Mendez]'s life or freedom would be
threatened if he returned to [Guatemala]." Dahal, 931 F.3d at
22.
Given the IJ's unchallenged finding of past persecution,
we presume that Mendez's life or freedom would be threatened if
he were returned to Guatemala. And, for the reasons set out in
our discussion of Mendez's asylum claim, DHS failed to meet its
rebuttal burden. The evidence of changed country conditions put
forth by DHS does not bear on the particular threats to Mendez's
life or freedom that form the basis of his fear of return.
Accordingly, based on the evidence before us, it appears Mendez
has established he is entitled to withholding of removal. But
because neither the IJ nor the BIA confronted the merits of
Mendez's withholding claim -- having denied the claim only on the
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erroneous conclusion that Mendez failed to make the less onerous
showing required for asylum -- we vacate and remand to the IJ to
assess the evidence in the first instance.
C. CAT Relief
Finally, Mendez argues that the BIA's denial of his
application for CAT protection is not supported by substantial
evidence. To obtain relief under CAT, Mendez "must prove by
objective evidence 'that it is more likely than not that he will
be tortured if he is [removed].'" Id. at 23 (quoting Martinez
v. Holder, 734 F.3d 105, 110 (1st Cir. 2013)). Here, the BIA, in
affirming the IJ, concluded that Mendez failed to "establish[]
through record evidence that it is more likely than not that he
would be tortured by, or at the instigation of, or with the consent
or acquiescence . . . of a public official in Guatemala upon his
return." Mendez maintains that the BIA and IJ erred by finding
his past persecution fell short of torture. We disagree with
Mendez. The record shows that the past persecution Mendez
suffered consisted of death threats, intimidation, and
non-life-threatening physical violence. The BIA's conclusion that
these harms fell short of torture is supported by substantial
evidence. We therefore discern no error.
V. Conclusion
For the foregoing reasons, we grant the petition for
review as to Mendez's claims for asylum and withholding of
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removal. We deny the petition as to Mendez's claim for CAT
protection. We accordingly affirm the denial of Mendez's CAT
claim, vacate the denials of Mendez's political opinion-based
asylum and withholding of removal claims, and remand to the IJ
for further proceedings consistent with this opinion.
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