Bernardo Acosta-Peralta v. Robert Wilkinson ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 2 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BERNARDO ACOSTA-PERALTA, No. 19-72033
Petitioner, Agency No. A087-542-854
v.
MEMORANDUM*
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 3, 2021
Phoenix, Arizona
Before: W. FLETCHER, MILLER, and HUNSAKER, Circuit Judges.
Bernardo Acosta Peralta petitions for review of an order of the Board of
Immigration Appeals dismissing his appeal from an immigration judge’s denial of
his application for withholding of removal and protection under the Convention
Against Torture (CAT). We refer to petitioner as “Bernardo” to distinguish him
from his son, Victor Edgardo Acosta Peralta, whose petition we resolve today in a
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
separate memorandum disposition. See Victor Edgardo Acosta Peralta v.
Wilkinson, No. 19-71297 (9th Cir. Mar. 2, 2021). We have jurisdiction under 8
U.S.C. § 1252(a)(1). We grant the petition and remand to the Board for further
proceedings.
1. “‘Where, as here, the BIA cites Matter of Burbano, 20 I. & N. Dec.
872, 874 (B.I.A. 1994) and also provides its own review of the evidence and law,
we review both the IJ’s and the BIA’s decisions.’” Cordoba v. Barr, 962 F.3d 479,
481 (9th Cir. 2020) (brackets omitted) (quoting Ali v. Holder, 637 F.3d 1025, 1028
(9th Cir. 2011)). Because the immigration judge found that Bernardo’s testimony
was credible, a finding the Board did not disturb, we assume the accuracy of
Bernardo’s “factual assertions” and “determine whether the facts, and their
reasonable inferences, satisfy the elements of the claim for relief.” Gonzalez-
Caraveo v. Sessions, 882 F.3d 885, 894 (9th Cir. 2018); see Kaur v. Holder, 561
F.3d 957, 962–63 (9th Cir. 2009).
2. The agency did not consider Bernardo’s family-based particular social
group. Bernardo sufficiently raised that group before the agency, and we therefore
have jurisdiction to consider it. See Garcia v. Lynch, 786 F.3d 789, 793 (9th Cir.
2015) (per curiam). In Bernardo’s addendum to his notice of appeal to the Board,
for example, he asserted that “his entire family is the social group targeted by the
persecuting men” and “[t]he social group is the family and what the group wants is
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their land.”
To be sure, during closing arguments, the immigration judge instructed
Bernardo’s counsel to “say [the particular social group] in one sentence,” and
counsel responded: “landholders of strategic lands.” Given this exchange, it is
perhaps unsurprising that the agency framed the relevant group as it did. But that
narrow construction—which Bernardo’s counsel resisted giving until the
immigration judge required him to sum up the group “in one sentence”—conflicts
with the apparent thrust of Bernardo’s argument, which seems to have been that his
“entire family is the social group,” and their landholder status was a reason why
their persecutors targeted them. Bernardo and his family members repeatedly
testified that Bernardo’s past persecution was significantly related to his familial
ties. Their testimony shows that the assailants hounded Bernardo’s family across
several different parts of Mexico, threatened his children, sexually assaulted his
daughter, threatened his sister, knocked down his mother’s door, and murdered his
son and brothers. Remand is necessary for the agency to consider the family-based
social group in the first instance. See Flores-Rios v. Lynch, 807 F.3d 1123, 1126
(9th Cir. 2015).
3. The agency applied an incorrect legal standard in analyzing
Bernardo’s CAT claim. After discussing the country conditions and other evidence
in this case, the immigration judge concluded that Bernardo had not established
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that he would likely “be tortured in the future by a public official or with the
government’s acquiescence or consent.” (emphasis added). But to prevail on his
CAT claim, Bernardo “need show only that ‘a public official’”—not the entire
Mexican government—would acquiesce in his torture, Tapia Madrigal v. Holder,
716 F.3d 499, 509 (9th Cir. 2013) (quoting 8 C.F.R. § 208.18(a)(1)). “It is enough
that public officials could have inferred the alleged torture was taking place,
remained willfully blind to it, or simply stood by because of their inability or
unwillingness to oppose it.” Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1060
(9th Cir. 2006). For that reason, the immigration judge’s focus on Mexico’s “high-
level government efforts, however important and laudable,” was not sufficient
because those efforts may not “necessarily reflect low-level government actors on
the ground.” Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1185 (9th Cir. 2020). And
Bernardo credibly testified that the police were involved in and assented to his
assailants’ conduct, and that he repeatedly filed reports with the authorities, who
refused to intervene on his behalf.
Even though the Board articulated the correct legal standard for relief under
the CAT and emphasized aspects of the immigration judge’s decision, by citing
Matter of Burbano, the Board adopted the immigration judge’s flawed decision in
its entirety. Lezama-Garcia v. Holder, 666 F.3d 518, 524 (9th Cir. 2011). Because
the Board’s decision cannot be “sustained upon its reasoning,” we remand for the
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Board to consider Bernardo’s entire account against the correct legal standard in
the first instance. See Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004) (per
curiam). We view the agency’s error as intertwined with its analysis of the
remaining elements of Bernardo’s CAT claim under 8 C.F.R. § 1208.16(c)(3), so
the Board should reconsider those aspects of its CAT analysis as well.
Because of the significant overlap between this case and Victor’s case, we
encourage the agency on remand to consolidate the cases or evaluate them together
so that their disposition is consistent.
PETITION GRANTED; REMANDED.
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