Juliana Calmo Matias v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 6 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JULIANA CALMO MATIAS; et al., No. 20-72574
Petitioners, Agency Nos. A209-159-178
A209-159-179
v. A209-159-180
MERRICK B. GARLAND, Attorney
General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 7, 2022
San Francisco, California
Before: S.R. THOMAS and McKEOWN, Circuit Judges, and ORRICK,** District
Judge.
Petitioners Juliana Calmo Matias (“Calmo Matias”), Sonia Matias Calmo
(“Sonia”), and Luis Matias Calmo (“Luis”), natives and citizens of Guatemala,
petition for review of the decision of the Board of Immigration Appeals (“BIA”)
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable William Horsley Orrick, United States District Judge
for the Northern District of California, sitting by designation.
dismissing their appeals of the Immigration Judge’s (“IJ”) denial of their
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 in part, dismiss in part, and remand.
“Where, as here, the BIA agrees with the IJ decision and also adds its own
reasoning, we review the decision of the BIA and those parts of the IJ’s decision
upon which it relies.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1027–28 (9th Cir.
2019). We review questions of law and mixed questions of law and fact de novo
and factual findings for substantial evidence. Conde Quevedo v. Barr, 947 F.3d
1238, 1241 (9th Cir. 2020).
I
Contrary to the government’s contentions, petitioners sufficiently exhausted
their arguments that the BIA and IJ (1) did not consider record evidence of future
persecution or torture and (2) did not assess Sonia and Luis’s applications for relief
individually from Calmo Matias’s. See Aden v. Holder, 589 F.3d 1040, 1047 (9th
Cir. 2009) (holding that arguments in support of a claim for a particular form of
relief are properly exhausted by a petitioner “merely mention[ing] in his brief to
the BIA that he was requesting reversal of the IJ’s denial of” that specific form of
relief (internal quotation marks and citation omitted)); see also Bare v. Barr, 975
F.3d 952, 960 (9th Cir. 2020) (“[T]he petitioner may raise a general argument
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[before the BIA] and then raise a more specific legal issue on appeal.”); Figueroa
v. Mukasey, 543 F.3d 487, 492 (9th Cir. 2008) (“[A] petitioner need not elaborate
on the argument in their brief [to exhaust it].” (internal quotation marks and
citation omitted)).
As petitioners concede, they did not exhaust the issue of whether Sonia and
Luis pleaded to the charges of removability individually and whether the IJ erred in
ruling them removable (as distinct from being entitled to relief from removal via
asylum, withholding, or CAT protection). That issue is jurisdictionally barred.
See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).
II
The agency erred in denying asylum and withholding of removal; we
remand for further consideration of those claims.
A
“The BIA is obligated to consider and address in its entirety the evidence
submitted by a petitioner.” Singh v. Gonzales, 494 F.3d 1170, 1172 (9th Cir. 2007)
(internal quotation marks, alteration, and citation omitted). In these cases, the BIA
and IJ did not address or indicate that they considered evidence that the break-in,
destruction of property, and threats of kidnapping were motivated (at least in part)
by petitioners’ Mam ethnicity. Specifically, Calmo Matias testified that the
criminals had taken similar actions against others in the village and that those who
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lived in the village were Mam. Petitioners’ country conditions evidence showed
that indigenous people—women in particular—face frequent racism,
discrimination, and violence in Guatemala on account of being indigenous, often at
the hands of “ladinos.” And Calmo Matias testified that the men who broke in
spoke Spanish to each other and she, consequently, surmised that they were likely
ladino.1
Consideration of this evidence “could have affected,” id., the decision to
deny asylum and withholding of removal, requiring remand. The agency based its
denial on the lack of a nexus to a protected ground. Based on the evidence above,
however, a factfinder could readily conclude that these men targeted Calmo Matias
(like her Mam neighbors) at least in part due to being indigenous, even if economic
gain was also a motive. See INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992)
(holding that circumstantial evidence can establish motive of persecution); Singh v.
Holder, 764 F.3d 1153, 1162 (9th Cir. 2014) (explaining that “a petitioner may
have been persecuted both because of [a non-protected ground] and because of . . .
[a] protected ground”).
1
The government implies that Calmo Matias changed her testimony by
identifying the men as ladinos “despite her earlier insistence that she could not
identify the intruders due to their masks.” It is clear that when she testified that she
could not tell who the criminals were due to their masks, she meant their individual
identities.
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B
If, on remand, the BIA determines that the men’s actions amount to past
persecution, petitioners would be entitled to presumptions of a well-founded fear
of persecution (for asylum) and a likelihood of persecution (for withholding), see
Hanna v. Keisler, 506 F.3d 933, 939–40 (9th Cir. 2007), requiring the BIA to
reassess those findings as well. Accordingly, we remand the claims in their
entirety for further consideration.
III
The agency erred in denying protection under the CAT because it failed to
discuss or indicate that it considered country conditions evidence relevant to the
likelihood of torture—in particular, the brutal mistreatment of indigenous people
by Guatemalan government officials, including killings and humans rights abuses.
See Aguilar-Ramos v. Holder, 594 F.3d 701, 705 (9th Cir. 2010) (“The failure of
the IJ and BIA to consider evidence of country conditions constitutes reversible
error.”). Nor did the BIA include a “catchall phrase” that it considered all record
evidence. See Cole v. Holder, 659 F.3d 762, 771–72 (9th Cir. 2011). In these
circumstances, we “grant petitions for review.” Id. at 771.
IV
We agree with petitioners that each of them is entitled to individualized
consideration of their applications for relief. Sonia and Luis have filed individual
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applications under 8 U.S.C. § 1229a rather than solely seeking asylum relief
derivative of their mother’s under 8 U.S.C. § 1158(b)(3). Because petitioners
have, for the most part, jointly presented identical evidence and arguments in
support of all three applications, joint consideration of that evidence and those
arguments is appropriate. But there is no reason that a denial of relief to Calmo
Matias would automatically foreclose any other noncitizen’s separate application,
including Sonia’s or Luis’s. On remand, the BIA should consider whether Sonia or
Luis have established any individual grounds for relief if properly presented.
* * *
Because we remand the asylum, withholding of removal, and CAT claims in
their entirety and find the issue of removability unexhausted, we need not and do
not address petitioners’ other assertions of error or whether they were exhausted.
We emphasize that nothing in our decision is intended to preclude the BIA
from also granting Calmo Matias’s motion to reopen proceedings below and
considering the new evidence she seeks to present.
The government shall bear the costs for these petitions for review.
PETITIONS GRANTED IN PART, DISMISSED IN PART, and
REMANDED.
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