Flor Cruz Lopez v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 26 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FLOR ESTER CRUZ LOPEZ; BRAYAN No. 19-71215
ERNESTO MOLINA CRUZ; Y.S.M.C., a
Juvenile Male; J.M.M.C., a Juvenile Male,* Agency Nos. A206-758-880
A206-758-881
Petitioners, A206-758-882
A206-758-883
v.
MERRICK B. GARLAND, Attorney MEMORANDUM**
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 5, 2021
Pasadena, California
Before: MILLER and LEE, Circuit Judges, and HILLMAN,*** District Judge.
Partial Concurrence and Partial Dissent by Judge LEE
*
The Board of Immigration Appeals’ order hyphenates petitioners’ last
names and lists Brayan Ernesto Molina Cruz as “Brayon Molina-Cruz.” The Clerk
will update the docket as indicated to accurately reflect petitioners’ names.
**
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
***
The Honorable Timothy Hillman, United States District Judge for the
District of Massachusetts, sitting by designation.
Flor Cruz Lopez and her three sons, Brayan Molina Cruz, Y.S.M.C., and
J.M.M.C, natives and citizens of El Salvador, seek review of an order of the Board
of Immigration Appeals dismissing their appeal from an immigration judge’s
denial of their applications for asylum, withholding of removal, and protection
under the Convention Against Torture. We have jurisdiction under 8 U.S.C.
§ 1252(a)(1), and we grant the petition in part and deny the petition in part.
1. The Board correctly concluded that certain of petitioners’ proposed
particular social groups are not cognizable. We review the cognizability of a
particular social group de novo, Barbosa v. Barr, 926 F.3d 1053, 1059 (9th Cir.
2019), and the agency’s underlying factual findings for substantial evidence,
Conde Quevedo v. Barr, 947 F.3d 1238, 1242 (9th Cir. 2020). The Board correctly
reviewed the immigration judge’s underlying factual findings for clear error, and
we see no indication that the Board failed to consider the ultimate question of each
group’s cognizability de novo, as petitioners contend. See 8 C.F.R.
1003.1(d)(3)(i)–(ii).
The proposed social group of “Salvadoran women viewed as property by
gang members” lacks particularity and social distinction. The group lacks
particularity because it has no clear benchmark for determining which past or
prospective female victims of gangs belong to the group. See Nguyen v. Barr, 983
F.3d 1099, 1103 (9th Cir. 2020); Matter of W-G-R-, 26 I. & N. Dec. 208, 214
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(B.I.A. 2014). It also lacks social distinction because it is defined solely by
reference to the persecutor’s perception, which “is not itself enough to make a
group socially distinct.” Cordoba v. Barr, 962 F.3d 479, 482–83 (9th Cir. 2020)
(quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 242 (B.I.A. 2014)).
Likewise, the proposed social groups of “Salvadoran women without the
protection of a male spouse or partner” and “Salvadoran boys without the
protection of a father” lack particularity and social distinction. As to particularity,
the concept of “protection” is amorphous and subjective. See Matter of S-E-G-, 24
I. & N. Dec. 579, 585 (B.I.A. 2008). As to social distinction, the anecdotal
evidence cited by petitioners does not compel the conclusion “that society in
general perceives, considers, or recognizes persons sharing the particular
characteristic to be a group.” Garay Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir.
2016) (emphasis omitted) (quoting W-G-R-, 26 I. & N. Dec. at 217). Nor does the
fact that community members might know their neighbors’ living situation speak
to whether society views the groups as distinct. And because “the persecutor’s
perception is not itself enough to make a group socially distinct,” the fact that
members of these groups are more likely to be targeted by gangs, if true, is not
sufficient to establish that they are socially distinct. Cordoba, 962 F.3d at 482–83
(internal quotation marks omitted).
Assuming without deciding that the agency erred in discounting Dr.
3
Boerman’s testimony about petitioners’ proposed social groups for lacking
corroboration in the record, see Castillo v. Barr, 980 F.3d 1278, 1283–84 (9th Cir.
2020), the agency’s conclusions are supported by the independent reasons
discussed above.
2. Substantial evidence supports the Board’s conclusion that Cruz Lopez
did not establish a nexus between her feared persecution and her familial
relationship to her nephew. See Santos-Ponce v. Wilkinson, 987 F.3d 886, 890 (9th
Cir. 2021) (standard of review). As the Board concluded, there is no evidence that
gang members knew of Cruz Lopez’s relation to her nephew or that Cruz Lopez
was targeted or will be targeted on account of that relationship.
3. Substantial evidence does not support the Board’s conclusion that
Molina Cruz, Y.S.M.C., and J.M.M.C. failed to establish a nexus between their
feared persecution and their familial relationship to their mother, Cruz Lopez. The
Board did not consider relevant mixed-motive evidence, including Cruz Lopez’s
credited testimony that gang members threatened to kill her sons on multiple
occasions, regularly trespassed into the home where Cruz Lopez lived with her
sons, and expressly referenced Cruz Lopez in threats to Molina Cruz. See
Baghdasaryan v. Holder, 592 F.3d 1018, 1023–24 (9th Cir. 2010). Nor did the
Board consider Dr. Boerman’s testimony that the gang’s victimization of Molina
Cruz’s was likely based on his relationship to Cruz Lopez, or Dr. Boerman’s
4
testimony that the sons are at risk of future harm due to their relationship to Cruz
Lopez. We therefore remand to the Board to reconsider whether the sons’
relationship to Cruz Lopez is “a central reason” or at least “a reason” for their
persecution in light of the record as a whole. See Barajas-Romero v. Lynch, 846
F.3d 351, 360 (9th Cir. 2017).
4. Substantial evidence does not support the Board’s conclusion that
Molina Cruz failed to establish a nexus between his feared persecution and his
imputed membership in the particular social group of “Salvadoran homosexuals.”
As the Board recognized, gang members “used sexual orientation . . . as a means to
degrade and harass [Molina Cruz].” And Molina Cruz presented ample evidence
that gang members targeted him on account of his perceived sexual orientation,
including that gang members regularly used homophobic slurs when attacking him
and that they sexually molested him while stating “they knew it was what [he]
liked since [he] liked men.” See Li v. Holder, 559 F.3d 1096, 1111–12 (9th Cir.
2009) (“Persecutors’ motivation should not be questioned when the persecutors
specifically articulate their reason for attacking a victim.”). According to Dr.
Boerman, gang members often sexually molest individuals they perceive to be gay.
Thus, the record compels the conclusion that Molina Cruz’s perceived sexual
orientation was both “a central reason” and “a reason” for his persecution. See
Tapia Madrigal v. Holder, 716 F.3d 499, 506 (9th Cir. 2013); Antonyan v. Holder,
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642 F.3d 1250, 1255–56 (9th Cir. 2011).
5. Substantial evidence does not support the Board’s denial of
petitioners’ claims under the Convention Against Torture for failure to demonstrate
government acquiescence. See Akosung v. Barr, 970 F.3d 1095, 1104 (9th Cir.
2020). The Board failed to consider Cruz Lopez’s credible testimony that the
police told her they could not help her and hung up on her when she called to
report the gang’s extortionate demand and threats. Nor did the Board consider her
testimony that the police were willfully blind to gang activity and cooperated with
gangs. Although Cruz Lopez did not report later attacks to the police, she
explained that she did not do so because the police “never helped [her] even when
[she] needed their help.” Because the Board failed to consider this pertinent
testimony, we remand for reconsideration of petitioners’ application for relief
under the Convention. See Quiroz Parada v. Sessions, 902 F.3d 901, 914–16 (9th
Cir. 2018); Cole v. Holder, 659 F.3d 762, 772 (9th Cir. 2011).
6. The Board correctly rejected petitioners’ due process claim based on
the loss of the record for one of the six days of the removal hearing. Because the
immigration judge gave the witnesses an opportunity to re-testify and alternatively
offered to rely on their written declarations, the loss of the record did not render
the proceedings “fundamentally unfair.” Grigoryan v. Barr, 959 F.3d 1233, 1240
(9th Cir. 2020). Nor have petitioners shown “[s]ubstantial prejudice.” Id.6
PETITION GRANTED in part, DENIED in part, and REMANDED.
Costs shall be taxed against the respondent.
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FILED
MAR 26 2021
Cruz Lopez v. Garland, No. 19-71215 MOLLY C. DWYER, CLERK
LEE, Circuit Judge, concurring-in-part and dissenting-in-part. U.S. COURT OF APPEALS
Flor Cruz Lopez and her three sons, Brayan Molina Cruz, Y.S.M.C., and
J.M.M.C have suffered tremendously at the hands of the gangs in El Salvador. I
agree with the majority that we should remand the Board of Immigration Appeal’s
(BIA) denial of Convention Against Torture protection. But I believe that
substantial evidence supports the BIA’s determination that (1) no nexus existed
between the three sons’ feared persecution and their mother, and (2) Brayan Molina
Cruz failed to establish a nexus between his feared persecution and his imputed
membership in the particular social group of “Salvadoran homosexuals.” I therefore
respectfully dissent on those two nexus issues.
1. The majority says that the BIA did not consider mixed-motive evidence
suggesting that the gang targeted the sons because of their relationship with their
mother. But I believe that the record reflects that the BIA considered and rejected
this evidence. The BIA found that “the co-respondents did not establish that their
familial relationship to their mother was or will be ‘at least one central reason’ for
the claimed prosecution.” Cf. 8 U.S.C. § 1158(b)(1)(B)(i) (stating that in mixed-
motive cases, the applicant must establish that “race, religion, nationality,
membership in a particular social group, or political opinion, was or will be at least
one central reason for persecuting the applicant”) (emphasis added). The BIA then
listed the different pieces of evidence that the IJ considered, including both the oldest
child’s testimony and the fact that “gang members were also independently attacking
and threatening the co-respondents’ mother . . . after she was unable to pay the
extortion fees they demanded.” The BIA noted that after “considering the totality
of the evidence,” the IJ had found that the harm the eldest son experienced was not
sufficiently related to their relationship with their mother. To reach that conclusion,
the IJ “considered the eldest co-respondent's testimony that the harm he encountered
from the gangs began after he refused their recruitment efforts.” Put differently, the
son was not attacked after the gangs threatened his mother; he was attacked after he
rejected their recruitment efforts. I thus believe that a fair reading of the BIA’s
opinion shows that the BIA considered and rejected the mixed-motive argument.
2. Gang members use unsavory tactics to recruit new members, including
degrading those who refuse to join the gang. The IJ and BIA found that the gang
members engaged in horrendous homophobic slurs and harassed Molina Cruz
because he refused to join the gang, not because they perceived him to be gay. The
record does not compel a contrary conclusion.
The majority emphasizes Molina Cruz’s testimony that gang members
sexually molested him while stating “they knew it was what [he] liked since [he]
liked men.” But in the very next sentence, Molina Cruz said that the gang “said all
this because to them, you were gay if you would not join a gang and that was how
gay men would be treated.” This testimony suggests that the gang members — in a
fit of misguided machismo — used homophobic slurs because they believed such
degrading name-calling would pressure Molina Cruz into joining the gang.
Similarly, on direct examination, the eldest son was asked, “And how often would
they approximately call you these [homophobic] names?” Answer: “Every time I
refused to join the gang.” Indeed, in front of the IJ, petitioners argued that gang
members targeted Molina Cruz “because of his unwillingness to join the gangs.”
The IJ/BIA’s conclusion flows naturally from Molina Cruz’s own testimony. We
are therefore not compelled to find otherwise. See Zheng v. Holder, 644 F.3d 829,
835 (9th Cir. 2011)
I thus respectfully dissent from the majority’s holding on the two nexus
determinations.