Carlos Cruz-Ramirez v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 17 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARLOS OMAR CRUZ-RAMIREZ, No. 17-71346
Petitioner, Agency No. A206-700-970
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 13, 2020**
San Francisco, California
Before: WALLACE and R. NELSON, Circuit Judges, and GWIN,*** District
Judge.
Carlos Cruz-Ramirez petitions for review of a Board of Immigration
Appeals (Board) order dismissing his appeal, in which he challenged an
*
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 James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.
immigration judge’s (IJ) denial of his applications for asylum, withholding of
removal, and Convention Against Torture (CAT) protection. We have jurisdiction
under 8 U.S.C. § 1252, and we grant the petition in part, deny it in part, and
remand to the Board.
Because the Board “conducted its own review of the evidence and law rather
than simply adopting the immigration judge’s decision,” our review “is limited to
the [Board’s] decision[.]” Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006)
(internal quotation marks omitted).
1. The Board determined that the harm was not caused “on account of” his
particular social group because “the interest of the gang was to extort money from
[Cruz-Ramirez and his] family,” and that the gang’s purpose for targeting Cruz-
Ramirez was merely to further that interest. Substantial evidence supports the
Board’s factual determination that Cruz-Ramirez failed to establish a nexus
between the persecution he suffered and his membership in his family. While the
gang’s threatening notes and phone calls and the eventual murder of his uncle were
directed at Cruz-Ramirez’s family, it is not clear that the gang’s actions were
connected to Cruz-Ramirez’s identity or affiliation with his family. Therefore, a
“reasonable adjudicator would [not] be compelled to conclude” that Cruz-
Ramirez’s membership in his particular social group was “a reason,” 8 U.S.C.
§ 1231(b)(3)(C), much less a “central reason,” 8 U.S.C. § 1158(b)(1)(B)(i), for the
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gang’s persecution. 8 U.S.C. § 1252(b)(4)(B); see also Singh v. Barr, 935 F.3d
822, 827 (9th Cir. 2019). Cruz-Ramirez’s other evidence, including the drive-by
shooting at his friend’s house, is also insufficient to demonstrate that the agency
erred in not determining that he was targeted “on account of” his membership in
his family.
Cruz-Ramirez argues that the Board’s denial of his asylum and withholding
of removal claims rests on the erroneous legal conclusion that “private acts of
extortion cannot form the predicate for an asylum claim.” While the Board’s
determination on this point technically conflicts with our precedents, see Ayala v.
Sessions, 855 F.3d 1012, 1020–21 (9th Cir. 2017), the Board’s error was harmless
because this conclusion was independent from the Board’s dispositive factual
findings. See Padilla-Martinez v. Holder, 770 F.3d 825, 832 (9th Cir.
2014). Accordingly, we deny Cruz-Ramirez’s petition with respect to his claim of
past persecution.
2. While substantial evidence supports the Board’s conclusion that Cruz-
Ramirez failed to show past persecution, the Board failed to analyze whether Cruz-
Ramirez had demonstrated a threat of future persecution for both his asylum and
withholding of removal claims. See Gomez-Sanchez v. Sessions, 892 F.3d 985,
990 (9th Cir. 2018). Although the IJ determined that Cruz-Ramirez did not have a
well-founded fear of future persecution for purposes of his asylum claim, we
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cannot review that determination where the Board failed to either expressly adopt
it or independently consider it on appeal. See Chawla v. Holder, 599 F.3d 998,
1001 (9th Cir. 2010).
The Board rejected Cruz-Ramirez’s withholding of removal claim because
the “standard for receiving withholding of removal is higher than that for receiving
asylum.” True, withholding of removal does require a higher standard of proof of
future persecution than asylum. Barajas-Romero v. Lynch, 846 F.3d 351, 360 (9th
Cir. 2017). However, this principle is irrelevant here because the Board’s rejection
of Cruz-Ramirez’s asylum claim did not turn on the likelihood of future
persecution.
Because the Board “abuse[d] its discretion” by failing to address or analyze
whether Cruz-Ramirez faced a threat of future persecution if he were returned to
Guatemala, see Kazlauskas v. INS, 46 F.3d 902, 907 (9th Cir. 1995), remand for
reconsideration of both his asylum and withholding of removal claims is
appropriate. Huang v. Mukasey, 520 F.3d 1006, 1008 (9th Cir. 2008). We
therefore grant Cruz-Ramirez’s petition as to his asylum and withholding of
removal claims and remand both claims for further proceedings consistent with this
disposition.
3. Finally, Cruz-Ramirez argues that the Board’s discussion of Cruz-
Ramirez’s CAT claim was inadequate as a matter of law and impermissibly
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ignored the arguments he raised in his administrative appeal. We agree.
“We have long held that the [Board] abuses its discretion when it fails to
provide a reasoned explanation for its actions.” Movsisian v. Ashcroft, 395 F.3d
1095, 1098 (9th Cir. 2005). Despite the fact that Cruz-Ramirez’s administrative
appeal raised several substantive issues regarding the IJ’s denial of his CAT claim,
the Board rejected his CAT claim in one conclusory sentence: “With respect to
relief pursuant to the Convention Against Torture, the respondent has also not
meaningfully articulated a basis upon which he would warrant such protection.”
This is insufficient. Although the Board “does not have to write an exegesis on
every contention,” the Board must “consider the issues raised, and announce its
decision in terms sufficient to enable a reviewing court to perceive that it has heard
and thought and not merely reacted,” Lopez v. Ashcroft, 366 F.3d 799, 807 n.6 (9th
Cir. 2004) (internal quotation mark omitted), if it does not expressly adopt the IJ’s
decision.
We hold that the Board “abuse[d] its discretion when it fail[ed] to state its
reasons and show proper consideration of all factors when weighing equities and
denying [CAT] relief” to Cruz-Ramirez. Kamalthas v. INS, 251 F.3d 1279, 1284
(9th Cir. 2001) (internal quotation mark omitted). Accordingly, we also grant
Cruz-Ramirez’s petition regarding his CAT claim and, to the extent that the Board
determines on remand that Cruz-Ramirez is not entitled to asylum or withholding
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of removal, we remand to the Board for reconsideration of Cruz-Ramirez’s CAT
claim based on the arguments raised to the Board in Cruz-Ramirez’s administrative
appeal.
PETITION GRANTED IN PART, DENIED IN PART, AND
REMANDED.
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Carlos Omar Cruz-Ramirez v. William P. Barr, No. 17-71346
FILED
JUN 17 2020
WALLACE, Circuit Judge, concurring:
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I concur in the result.
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