Jean Charles v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 27 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEAN THONY CHARLES, No. 18-73357
Petitioner, Agency No. A208-302-731
v.
MEMORANDUM*
MERRICK GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 12, 2021**
San Francisco, California
Before: MURGUIA, R. NELSON, and HUNSAKER, Circuit Judges.
Jean Thony Charles petitions for review of the dismissal by the Board of
Immigration Appeals (“BIA”) of his appeal from an immigration judge’s (“IJ”)
(collectively, “Agency”) denial of his applications for asylum, withholding of
removal, and relief from removal under the Convention Against Torture (“CAT”).
*
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).
We have jurisdiction under 8 U.S.C. § 1252(b). We grant the petition for review in
part and deny in part.
Charles must demonstrate that he is unwilling or unable to return to Haiti
“because of persecution or a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or political opinion”
for his asylum claim to succeed. 8 U.S.C. § 1101(a)(42)(A); see also id.§ 1158(b)(1)(B)(i). The protected characteristic must be “a central reason” for past
or feared harm, which is the “nexus” requirement. Garcia v. Wilkinson, 988 F.3d
1136, 1143 (9th Cir. 2021) (citation omitted). For withholding of removal, the
protected ground must simply be “a reason” for the harm. Id. at 1146 (citation
omitted).
Charles seeks asylum and withholding of removal based on his imputed
political opinion and membership in the proposed particular social groups (“PSG”)
of “Haitians who are targeted for retaliation by gangs,” and “Haitians who are
witnesses to Haitian gangs’ criminal activities.” Additionally, Charles seeks CAT
protection because he claims he suffered torture with the acquiescence or willful
blindness of the Haitian government. We review the BIA’s determinations that
Charles has not established eligibility for asylum, withholding, or CAT protection
for substantial evidence, and uphold the BIA’s factual findings “unless the
2
evidence compels a contrary result.” Diaz-Reynoso v. Barr, 968 F.3d 1070, 1076
(9th Cir. 2020) (citation omitted).
As a threshold matter, the BIA’s failure to address the IJ’s adverse
credibility finding was not error. As an alternative finding, the IJ assumed
credibility but denied Charles relief based on lack of nexus between his harm and
any protected ground. The BIA likewise denied relief based on the IJ’s alternative
finding of lack of nexus. Thus, the BIA did not need to reach the issue of
credibility. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004).
Substantial evidence supports the Agency’s finding that Charles has not
shown a nexus to an imputed political opinion. Charles does not need to prove that
“he . . . actually held a political opinion or acted in furtherance of it, but must
provide ‘some evidence’ . . . that the persecutor was motivated by a belief that the
petitioner held the political opinion.” Khudaverdyan v. Holder, 778 F.3d 1101,
1106 (9th Cir. 2015) (emphasis and citation omitted). Charles contends that our
decision in Desir v. Ilchert establishes that a dispute with a gang in Haiti is
necessarily “political.” See 840 F.2d 723, 727 (9th Cir. 1988). But unlike in Desir
v. Ilchert, where the Haitian gang was operating as a pseudo-government security
force, Charles has offered no evidence of a direct connection between the Haiti
Prophecy gang and the government. See id. Further, general opposition to a gang
is not enough to impute a political opinion even if the police are unable to prevent
3
the violence. See Santos-Lemus v. Mukasey, 542 F.3d 738, 747 (9th Cir. 2008),
abrogated on other grounds by Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir.
2013) (en banc). The Agency found gang members targeted Charles solely
because they sought personal retaliation for the death of their “brother,” so Charles
has not established nexus between his harm and an imputed political opinion. See
Molina-Morales v. INS, 237 F.3d 1048, 1052 (9th Cir. 2001).
However, the Agency erroneously concluded that Charles had not
established a nexus to a PSG. The BIA explicitly declined to decide whether the
proposed PSGs were cognizable, determining only that Charles had not established
a nexus to a PSG. We thus assume that these are “both cognizable groups for the
purposes of evaluating the BIA’s nexus determination.” Garcia, 988 F.3d at 1143
(citation omitted). The BIA adopted the IJ’s finding of lack of nexus to a PSG, so
we review the IJ’s decision. Diaz-Reynoso, 968 F.3d at 1075–76. The IJ found
that “one individual allegedly from a gang is out to get the respondent and his
aunt.” The IJ concluded Charles “was targeted because the gang wants to take
revenge” on Charles believing “he had killed one of their brothers,” “not because
he was a witness.”
This finding is supported by substantial evidence. Thus, there is no nexus to
the PSG “Haitians who are witnesses to Haitian gangs’ criminal activities” because
4
Charles’s witnessing of Haitian gangs’ criminal activities was not a reason, let
alone a central reason, for his persecution. See Garcia, 988 F.3d at 1143, 1146.
But since the Agency had found the only reason Charles had been targeted
was because of gang retaliation, gang retaliation was necessarily the “central
reason” he was targeted. See id. at 1143–44. That means the “central reason”
Charles was targeted was because of his membership in the PSG “Haitians who are
targeted for retaliation by gangs.” Since we assume this group exists and is
cognizable, then by its own definition there is nexus between group membership
and the harm Charles suffered. Because Charles meets the more stringent standard
for nexus for purposes of asylum, he also satisfies it for withholding of removal.
Id. at 1146. Therefore, we grant the petition for review in part. We remand for the
Agency to clarify its decision and to analyze in the first instance whether the group
“Haitians who are targeted for retaliation by gangs” is cognizable, and whether the
other elements of Charles’s asylum and withholding of removal claims are
satisfied. Id. at 1144.
Finally, substantial evidence supports the BIA’s conclusion that Charles did
not show the Haitian government would consent or acquiesce to his torture.
Charles must show that a government official was aware of the torture and then
“breach[ed] his or her legal responsibility to intervene.” Ornelas-Chavez v.
Gonzales, 458 F.3d 1052, 1059 (9th Cir. 2006) (quoting 8 C.F.R. § 208.18(a)(7)).
5
However, “general ineffectiveness on the government’s part to investigate and
prevent crime will not suffice to show acquiescence.” Andrade-Garcia v. Lynch,
828 F.3d 829, 836 (9th Cir. 2016) (citation omitted). Charles testified that he
reported the initial attack to the police but was still found months later in a
different city by the same gang. However, Charles did not provide a police report
and there is no information in the record as to whether there was any police
investigation. Charles only stated that the police were ineffective in preventing his
second attack, and he felt that “it meant nothing” to go to the police again. Further,
there is evidence the police investigated the initial robbery Charles witnessed.
Charles’s conjecture that the police did not investigate his first attack because the
gang was able to find him again does not compel a finding that the Haitian
government acquiesced to his alleged torture.
We remand with instructions for the BIA to reconsider Charles’s asylum and
withholding of removal claims. We deny the petition as it relates to Charles’s
claim for relief under CAT.
Costs of this appeal are awarded to Charles.
PETITION GRANTED IN PART AND DENIED IN PART.
6