Cuevas Nunez v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 20 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
Adriana Yadira Cuevas Nunez, No. 21-134
Petitioner, Agency No. A202-180-514
v.
MEMORANDUM*
Merrick B. Garland, U.S. Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 15, 2023
Pasadena, California
Before: TASHIMA, CHRISTEN, and MILLER, Circuit Judges.
Adriana Yadira Cuevas Nunez, a native and citizen of Mexico, petitions
for review of an order of the Board of Immigration Appeals affirming an
immigration judge’s denial of her applications for asylum, withholding of
removal, and protection under the Convention Against Torture (CAT). We have
jurisdiction under 8 U.S.C. § 1252. We grant the petition in part and deny it in
part.
*
This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
Where, as here, the Board “expressed agreement with the reasoning of the
[immigration judge],” we review both decisions. Kumar v. Holder, 728 F.3d
993, 998 (9th Cir. 2013). We review the agency’s findings of fact for substantial
evidence. Id. We review claims of due process violations de novo. Grigoryan v.
Barr, 959 F.3d 1233, 1239 (9th Cir. 2020).
1. Cuevas Nunez claims that her due process rights were violated because
the immigration judge displayed bias by misstating the record, so she did not
have a neutral factfinder. See Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.
2000). The misstatements consisted mostly of clerical errors, or permissible
interpretations of ambiguous testimony, which do not demonstrate bias.
Although the immigration judge incorrectly stated that Cuevas Nunez did not
provide evidence of her rape, Cuevas Nunez does not show how that statement
caused prejudice. See Ibarra-Flores v. Gonzales, 439 F.3d 614, 620–21 (9th
Cir. 2006) (to establish a due process violation, the petitioner must
“demonstrate[] prejudice, ‘which means that the outcome of the proceeding may
have been affected by the alleged violation’” (quoting Platero-Cortez v. INS,
804 F.2d 1127, 1132 (9th Cir. 1986))). The Board expressly rejected the
immigration judge’s statements about the lack of evidence of rape, and it did not
rely on the immigration judge’s adverse credibility finding. See Arrey v. Barr,
916 F.3d 1149, 1159 (9th Cir. 2019) (finding no prejudice when “although the
[immigration judge] made a questionable adverse credibility finding . . . , any
prejudice from that was cured by the Board’s subsequent decision assuming the
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credibility of [the petitioner’s] testimony in full”). We therefore deny the
petition for review insofar as it asserts a due process claim.
2. Cuevas Nunez argues that she is eligible for asylum and withholding of
removal because she faces persecution on account of her membership in certain
particular social groups and on account of her imputed political opinion. Her
proposed particular social groups are related to her family and her actions
assisting the prosecution of her rapists. Her proposed imputed political opinion
also relates to her actions assisting the prosecution of her rapists. The Board
rejected Cuevas Nunez’s asylum and withholding claims because, it said, she
had failed to raise any protected ground in front of the immigration judge, and
because she failed to establish any nexus between her claimed grounds and her
feared harm. Neither rationale survives review.
The Board erred in stating that Cuevas Nunez raised her particular social
groups and imputed political opinion for the first time on appeal. In her asylum
application and before the immigration judge, she argued that her family
relationships and her actions assisting the prosecution of her rapists had a
nexus to her past persecution and feared future persecution, and she did so
clearly enough that the immigration judge in fact addressed her claims on those
grounds.
Indeed, the Board went on to say that it agreed with what it
characterized as the immigration judge’s statements addressing those grounds
and finding no nexus to her past or feared harm. The Board was correct that
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Cuevas Nunez did not establish that her rape had any nexus to a protected
ground. But substantial evidence does not support the Board’s conclusion that
Cuevas Nunez’s asserted grounds were not “one central reason” or “a reason”
for the harm she faced after reporting her rape. Barajas-Romero v. Lynch, 846
F.3d 351, 360 (9th Cir. 2017).
To start, the existence of personal retribution as a motive for the harm
Cuevas Nunez suffered does not negate her claims. Membership in a particular
social group or a political opinion can be “one central reason” or “a reason” for
persecution even if personal retribution is also a reason. See, e.g., Madrigal v.
Holder, 716 F.3d 499, 506 (9th Cir. 2013); Garcia v. Wilkinson, 988 F.3d 1136,
1145 (9th Cir. 2021); Grava v. INS, 205 F.3d 1177, 1181 n.3 (9th Cir. 2000).
Assuming that Cuevas Nunez’s family is a cognizable particular social
group, the record contains significant evidence of harassment targeting the
family based on this ground. After one of Cuevas Nunez’s assailants was
arrested, the family discovered that the cables on their car had been cut and that
the vandals had left a note referring specifically to Cuevas Nunez. Cartel
members shot at her father’s house. A policeman threatened her father, saying
that “wherever . . . [the family members] were found or [Cuevas Nunez] was
found, [they would] be killed.” Her mother also received threats that mentioned
the entire family.
Similarly, assuming that Cuevas Nunez’s actions related to the rape
prosecution establish a valid protected ground, the record contains significant
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evidence of nexus between those actions and actual and threatened harm.
Cuevas Nunez testified that after the arrest of one of her assailants, unidentified
people tried to run her over with a car and shouted, “That’s what you get for
whistle blowing.” The sister of one of her assailants threatened her “that if she
continued with this,” meaning assisting with the prosecution of her rapists, “she
would be killed.” In addition, Cuevas Nunez received an anonymous threat that
again referenced her rape prosecution.
The Board cited Conde Quevedo v. Barr, 947 F.3d 1238, 1242–43 (9th
Cir. 2020), which held that “people who report the criminal activity of gangs to
police” did not constitute a socially distinct group in Guatemala. But “[t]o make
the social-distinction determination . . . . the inquiry is necessarily conducted
case-by-case.” Diaz-Torres v. Barr, 963 F.3d 976, 980 (9th Cir. 2020). Cuevas
Nunez proposed a differently defined group and is coming from a different
country. The cognizability of her proposed particular social groups therefore
requires an individualized analysis, which the agency did not conduct.
Moreover, Cuevas Nunez did more than “report the criminal activity of gangs”;
she also testified publicly against one of her assailants. See Henriquez-Rivas v.
Holder, 707 F.3d 1081, 1092 (9th Cir. 2013); In re H-L-S-A-, 28 I. & N. Dec.
228, 236–37 (B.I.A. 2021).
We grant the petition for review and remand for further consideration of
the asylum and withholding claims.
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3. Substantial evidence supports the Board’s conclusion that Cuevas
Nunez is not more likely than not to be tortured with government acquiescence
if she is returned to Mexico. See Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1183
(9th Cir. 2020). The past harm that Cuevas Nunez suffered was from private
actors, as is the future harm that she fears. Cuevas Nunez alleges that the police
were involved in her harassment. But the police investigated and arrested one of
her assailants, who was ultimately convicted. That the police failed to follow up
on her reports of harassment by the cartel does not “raise an inference that
public officials are likely to acquiesce in torture.” Garcia-Milian v. Holder, 755
F.3d 1026, 1034 (9th Cir. 2014). The immigration judge permissibly discounted
the threat by a police officer to Cuevas Nunez’s father because the judge
determined that “there is no relationship [between] any identifiable people and
what happened to her father.” In any event, in light of the other evidence in the
record, that incident alone does not compel a finding that the Mexican
government would be more likely than not to acquiesce in any torture. We deny
the petition for review insofar as it challenges the denial of the CAT claim.
The motion for a stay of removal (Dkt. No. 3) is denied as moot. Each
party shall bear its own costs.
PETITION GRANTED in part and DENIED in part; REMANDED.
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