NERY SALGUERO SOSA V. MERRICK GARLAND ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 19-70961
NERY ADELI SALGUERO SOSA,
Agency No.
Petitioner,
A087-365-423
v.
OPINION
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 17, 2022
San Francisco, California
Filed December 16, 2022
Before: SIDNEY R. THOMAS and MILAN D. SMITH,
JR., Circuit Judges, and GEORGE H. WU, * District Judge.
Opinion by Judge Milan D. Smith, Jr.;
Partial Concurrence by Judge Wu
The Honorable George H. Wu, United States District Judge for the
*
Central District of California, sitting by designation.
2 SALGUERO SOSA V. GARLAND
SUMMARY **
Immigration
The panel granted in part and denied in part Nery Adeli
Salguero Sosa’s petition for review of a decision of the
Board of Immigration Appeals upholding an immigration
judge’s denial of asylum, withholding of removal, and
protection under the Convention Against Torture, and
remanded for further proceedings.
The panel concluded that the BIA erred by failing to
conduct cumulative-effect review when assessing Salguero
Sosa’s evidence of past persecution. The panel explained
that Korablina v. INS, 158 F.3d 1038 (9th Cir. 1998), and
Guo v. Sessions, 897 F.3d 1208 (9th Cir. 2018), held that
when determining whether a petitioner’s past mistreatment
rises to the level of persecution, the BIA must apply
cumulative-effect review. The panel wrote that cumulative-
effect review is essential where a single isolated incident
may not rise to the level of persecution, but the cumulative
effect of several incidents may constitute persecution. The
panel rejected the government’s view that Korablina and
Guo were simply substantial-evidence-review decisions in
which the court determined, on the basis of the whole record,
that any reasonable factfinder would be compelled to
disagree with the BIA. Rather, the panel explained that the
agency’s purported failure to conduct cumulative-effect
review is a legal issue that this court reviews de novo.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
SALGUERO V. GARLAND 3
The panel concluded that it is evident from the record
that the BIA failed to conduct a cumulative-effect
review. The panel explained that the IJ analyzed each
category of past harm in isolation and found that none
individually rose to the level of persecution. In addition, the
BIA failed to acknowledge Salguero Sosa’s request for
cumulative-effect review, and the BIA’s analysis did not
demonstrate that it took a cumulative look at the various
instances of harm Salguero Sosa asserted. Instead, the BIA
followed in the IJ’s footsteps, ticking off each of Salguero
Sosa’s categories of harm on an individual basis and finding
that each amounted only to discrimination. The panel
remanded for the agency to apply the correct legal
framework to Salguero Sosa’s asylum claim.
Because withholding of removal, like asylum, requires a
showing of future persecution and employs a past-
persecution rebuttable presumption, the panel explained that
its cumulative-effect holding applies to Salguero Sosa’s
withholding of removal claim as well. The panel held that
the BIA also erred by applying asylum’s heightened “at least
one central reason” nexus requirement to Salguero Sosa’s
withholding of removal claim, rather than the correct “a
reason” standard. The panel therefore remanded for the BIA
to apply the correct legal framework for evaluating the
withholding of removal nexus requirement.
Finally, the panel concluded that substantial evidence
supported the BIA’s conclusion that the Guatemalan
government would not acquiesce in any torture Salguero
Sosa might suffer. The panel explained that although
Salguero Sosa’s proffered evidence might suggest some
government disregard or animus toward Salguero Sosa, in
particular, or to individuals in his proposed social group
generally, it did not meet the high bar of compelling the
4 SALGUERO SOSA V. GARLAND
conclusion that the Guatemalan government would
acquiesce in Salguero Sosa’s torture.
Judge Wu concurred in the majority’s remand of
Salguero Sosa’s withholding of removal claim, and its denial
of the petition as to his CAT claim. However, Judge Wu did
not join in the majority’s remand of Salguero Sosa’s asylum
claim. Judge Wu disagreed that Circuit precedent already
requires the BIA to conduct cumulative-error review, or that
the failure to conduct such a review warrants remanding the
matter back to the BIA. Judge Wu also pointed out that
without some description as to the elements, factors, or steps
of such an analysis, it is uncertain what that review would
entail and how it is to be (or could be) conducted in the
present case.
COUNSEL
Sylvia L. Esparza (argued), Law Office of Sylvia L. Esparza,
Las Vegas, Nevada, for Petitioner.
Stephen P. Finn (argued), Senior Trial Attorney; Mary J.
Candaux, Assistant Director; Brian M. Boynton, Principal
Deputy Assistant Attorney General; United States
Department of Justice, Civil Division; Washington, D.C.; for
Respondent.
SALGUERO V. GARLAND 5
OPINION
M. SMITH, Circuit Judge:
Nery Adeli Salguero Sosa, a citizen of Guatemala who
suffers from dwarfism and who advocated in Guatemala for
increased legal protections for dwarfs, petitions our court to
review the Board of Immigration Appeals’ decision denying
him asylum, withholding of removal, and Convention
Against Torture (CAT) relief. We grant the petition in part,
deny in part, and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Salguero Sosa is a native and citizen of Guatemala. He
lawfully entered the United States but overstayed his
nonimmigrant visa. When charged as removable pursuant to
8 U.S.C. § 1227(a)(1)(B), he conceded removability and
applied for asylum, withholding of removal, and CAT relief.
Before the Immigration Judge (IJ) and Board of
Immigration Appeals (BIA), Salguero Sosa contended—in
support of his asylum and withholding of removal claims—
that he suffered past persecution and would suffer future
persecution on account of his political opinion and his
membership in two particular social groups (PSGs): dwarfs
in Guatemala and human rights defenders in Guatemala.
Though Salguero Sosa primarily relied on showing past
persecution (and the rebuttable presumption it triggers), he
alternatively argued that he could show future persecution
because his two alleged PSGs are also disfavored groups—
a related but separate showing. In asserting his CAT claim,
Salguero Sosa did not argue that he suffered past torture and
instead argued only that it was more likely than not that he
would be tortured with the acquiescence of the government
6 SALGUERO SOSA V. GARLAND
if he were removed to Guatemala.
I. Salguero Sosa’s Alleged Past Persecution
In presenting his asylum and withholding of removal
claims, Salguero Sosa testified about several categories of
mistreatment that he contends amounted to past persecution,
namely: (1) educational mistreatment by his father, peers,
and teachers; (2) employment barriers, including
discriminatory hiring practices, denial of raises and career-
advancement opportunities, and derogatory comments made
by his superiors; (3) several assaults and robberies, including
one in which he was “brutally” beaten at gunpoint; (4) death
threats from anonymous callers; (5) social mistreatment,
including his then-girlfriend’s family forcing her to have an
abortion because they did not want her to risk having a dwarf
child; and (6) his and his brother’s treatment at a state-run
hospital where his brother, who was also a dwarf, died due
to what Salguero Sosa contends was inadequate medical
care.
II. BIA Proceedings
Salguero Sosa’s petition for review comes to us with an
extended procedural history, wherein both the IJ and BIA
have each issued two prior decisions. Collectively, those
decisions denied Salguero Sosa’s application for asylum,
withholding of removal, and CAT relief.
The BIA denied Petitioner asylum because it determined
that he did not suffer harm that rose to the level of past
persecution and that, in any event, his political opinion was
not “at least one central reason” for any past persecution. It
also held that Salguero Sosa did not have a well-founded fear
of future persecution because he was not a member of a
disfavored group. The BIA rejected Petitioner’s
SALGUERO V. GARLAND 7
withholding of removal claim on the view that since his
asylum claim was denied, his withholding of removal claim
necessarily failed. The BIA denied Petitioner’s CAT claim,
determining that Salguero Sosa failed to establish that the
government would acquiesce in any torture to which he
would be subjected if removed to Guatemala. Salguero Sosa
timely filed a petition for review before this court.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 8 U.S.C. § 1252.
Where the BIA affirms the IJ “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
legal questions de novo. See, e.g., Mendoza-Garcia v.
Garland, 36 F.4th 989, 993 (9th Cir. 2022). And we review
the factual determinations underlying denials of CAT relief
for substantial evidence. See, e.g., Nasrallah v. Barr, 140 S.
Ct. 1683, 1692 (2020). Under that “highly deferential”
standard, we must accept the BIA’s factual findings as
“conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.” Id. (quoting 8
U.S.C. § 1252(b)(4)(B)).
ANALYSIS
I. Asylum
Salguero Sosa challenges the BIA’s denial of asylum on
the grounds that the BIA erred by (1) failing to conduct
cumulative-effect review when assessing past persecution;
(2) concluding that his alleged persecution lacked a nexus to
his political opinion; and (3) concluding that he was not a
member of a disfavored group when assessing whether he
would experience future persecution. We agree with
8 SALGUERO SOSA V. GARLAND
Salguero Sosa’s first argument, grant the petition for review
as to asylum, and remand for further proceedings consistent
with this opinion.
A. Cumulative-Effect Review
The BIA erred by failing to conduct cumulative-effect
review when assessing Salguero Sosa’s evidence of past
persecution. To be eligible for asylum, a petitioner must
demonstrate a “well-founded fear of persecution on account
of race, religion, nationality, membership in a particular
social group, or political opinion.” Sharma v. Garland, 9
F.4th 1052, 1059 (9th Cir. 2021) (quoting 8
U.S.C. § 1101(a)(42)(A)). A petitioner can satisfy this
burden by showing past persecution, which gives rise to a
rebuttable presumption of future persecution. Id. at 1060;
see 8 C.F.R. § 208.13(b)(1).
We have previously held that when determining whether
a petitioner’s past mistreatment rises to the level of
persecution, the BIA must apply cumulative-effect review.
See, e.g., Sharma, 9 F.4th at 1061 (“The key question is
whether, looking at the cumulative effect of all the incidents
that a petitioner has suffered, the treatment he received rises
to the level of persecution.” (cleaned up)); Ahmed v. Keisler,
504 F.3d 1183, 1194 (9th Cir. 2007) (“Where an asylum
applicant suffers [physical harm and threats] on more than
one occasion . . . , the cumulative effect of the harms is
severe enough that no reasonable fact-finder could conclude
that it did not rise to the level of persecution.”); Krotova v.
Gonzales, 416 F.3d 1080, 1087 (9th Cir. 2005) (“The
combination of sustained economic pressure, physical
violence and threats . . . , and the restrictions on Petitioner’s
ability to practice her religion cumulatively amount to
persecution.”); Korablina v. INS, 158 F.3d 1038, 1044 (9th
SALGUERO V. GARLAND 9
Cir. 1998) (“Persecution may be found by cumulative,
specific instances of violence and harassment toward an
individual and her family members . . . .”).
Cumulative-effect review is essential where “[a] single
isolated incident may not rise to the level of persecution, but
the cumulative effect of several incidents may constitute
persecution.” Korablina, 158 F.3d at 1044 (cleaned up)
(emphasis added) (quoting Singh v. INS, 94 F.3d 1353, 1358
(9th Cir. 1996)). Two of our decisions illustrate this
principle.
The first is Korablina. There, the IJ found that
Korablina, a Jewish Ukrainian woman, had suffered a
“serious [form] of discrimination” but “her numerous
experiences did not amount to persecution.” Id. Korablina’s
past-persecution showing was based on suffering one
physical attack; observing her boss (who was also Jewish)
be severely beaten and eventually “disappeared”; receiving
threatening phone calls; and having her workplace
ransacked. Id. at 1044–45. After stating the above legal rule,
we declined to decide whether any of Korablina’s
experiences individually amounted to persecution. Instead,
we held that the BIA’s denial of relief lacked substantial
evidence because “[c]umulatively, the experiences suffered
by Korablina compel the conclusion that she suffered
persecution.” Id. at 1045 (emphasis added).
The second is Guo v. Sessions, 897 F.3d 1208 (9th Cir.
2018). There, a Christian Chinese citizen contended that he
had suffered past persecution. Id. at 1213. Specifically, Guo
testified about a police beating; a short detention; and a
requirement that he report to the police each week. Id. at
1211. As in Korablina, we concluded that we “need not
decide whether Petitioner’s beating alone amounted to
10 SALGUERO SOSA V. GARLAND
persecution because his asylum claim is also premised on his
release conditions” and, when we “consider[ed] the record
as a whole,” a finding of persecution was compelled. Id. at
1215–17 (emphasis added).
The government argues that these cases do not establish
a legal rule requiring cumulative-effect review. In the
government’s view, Korablina and Guo are simply
substantial-evidence-review decisions in which we
determined, on the basis of the whole record, that any
reasonable factfinder would be compelled to disagree with
the BIA. We reject the government’s limited, fact-bound
reading of these decisions for two reasons.
First, the structure of Korablina and Guo undermines the
government’s reading. Korablina, for instance, took a
textbook rule-application-conclusion approach to the issue
of whether the petitioner had suffered past persecution. We
first described the governing legal rule, Korablina, 158 F.3d
at 1044 (“Persecution may be found by cumulative, specific
instances of violence and harassment . . . .”), and then
applied that rule to Korablina’s testimony, id. at 1044–45
(“Cumulatively, the experiences suffered by Korablina
compel the conclusion that she suffered persecution.”). The
bottom-line factual conclusion (that substantial evidence did
not support the BIA’s finding of no past persecution)
necessarily resulted from the application of the legal rule we
had stated (that incidents must be evaluated cumulatively).
Secondly, if we accepted the government’s argument,
our treatment of cumulative-effect error would be an outlier
in immigration and administrative law. We review legal
issues arising from administrative proceedings de novo,
including analogous contentions that the BIA applied an
incorrect legal framework. See, e.g., Garcia v. Wilkinson,
SALGUERO V. GARLAND 11
988 F.3d 1136, 1146 (9th Cir. 2021) (nexus); Zheng v.
Ashcroft, 332 F.3d 1186, 1194–97 (9th Cir. 2003)
(government acquiescence). In such cases, unless remand
would be an “idle and useless formality,” we remand if the
petitioner shows the existence of a legal error. Singh v. Barr,
935 F.3d 822, 827 (9th Cir. 2019) (quoting NLRB v. Wyman-
Gordon Co., 394 U.S. 759, 766 n.6 (1969)). But under the
government’s view, petitioners would benefit from showing
cumulative-effect error only if they present the rare case—
as in Korablina and Guo—where the record is so factually
overwhelming that it is appropriate to outright grant relief
instead of remanding for the agency to apply the correct legal
framework in the first instance. We see no reason for
treating Petitioner’s raising a cumulative-effect error
differently than we treat other petitioners’ assertion of legal
error.
Accordingly, we hold that the BIA must conduct a
cumulative-effect review when assessing a petitioner’s
claim of past persecution and that the agency’s purported
failure to do so is a legal issue we decide de novo. 1
Turning to the case before us, it is evident from the
record that the BIA failed to conduct a cumulative-effect
review. The IJ analyzed each category of past harm in
isolation and found that none individually rose to the level
of persecution. Indeed, when summarizing his findings, the
IJ expressly stated that he “evaluate[d] the nature of each
claim the respondent presents in support” of past persecution
1
To preserve such an argument before this court, petitioners must, of
course, exhaust their remedies before the BIA. See, e.g., Bare v. Barr,
975 F.3d 952, 960 (9th Cir. 2020). Here, there is no contention of waiver,
as Salguero Sosa squarely raised his cumulative-effect argument on
appeal to the BIA.
12 SALGUERO SOSA V. GARLAND
and concluded that “in every instance what the respondent
may have experienced was nothing greater than
discrimination focused on him.”
On appeal to the BIA, Salguero Sosa challenged the IJ’s
siloed evaluation of his past-persecution evidence, but the
BIA failed to grapple with this argument. The BIA nowhere
acknowledged Salguero Sosa’s request for cumulative-effect
review, nor did its analysis ever demonstrate that the BIA
took a cumulative look at the various instances of harm
Salguero Sosa asserted. Instead, the BIA followed in the IJ’s
footsteps, ticking off each of Salguero Sosa’s categories of
harm on an individual basis and finding that each amounted
only to discrimination.
The BIA erred by failing to conduct a cumulative-effect
review. We thus grant Salguero Sosa’s petition for review
as to asylum and remand to the agency to apply the correct
legal framework to Petitioner’s asylum claim. We do not
reach Salguero Sosa’s substantial-evidence arguments about
the BIA’s nexus 2 and disfavored-group determinations.
Because we grant the petition as to asylum and the BIA’s
resolution of the past-persecution issue on remand may
affect those two related issues, it would be inappropriate for
us to address them now. 3
2
We do, however, note that, while the IJ and BIA made factual findings
about political-opinion nexus, it is unclear whether they ever analyzed
whether Salguero Sosa could establish a nexus with his membership in
either alleged PSG.
3
To the extent the partial concurrence suggests that we tacitly endorse
these determinations and “leave[] [them] intact,” we clarify that we do
no such thing. As mentioned, the BIA’s resolution of the antecedent
past-persecution issue could lead the BIA to reach materially different
determinations on these subsequent issues. For example, the BIA’s
SALGUERO V. GARLAND 13
II. Withholding of Removal
Salguero Sosa challenges the BIA’s denial of
withholding of removal by (1) raising the same argument he
made in his claim for asylum regarding cumulative-effect
review; and (2) arguing that the BIA erred by applying
asylum’s heightened nexus requirement. We agree with
Salguero Sosa on both arguments, grant the petition for
review as to withholding of removal, and remand for further
proceedings consistent with this opinion.
A. Cumulative-Effect Review
The cumulative-effect requirement articulated
respecting asylum applies with equal force to Salguero
Sosa’s withholding of removal claim. Withholding of
removal requires a substantially similar (though not
identical) showing as asylum. “The Attorney General must,
in general, withhold removal of an alien if the alien’s life or
freedom would be threatened ‘because of the alien’s race,
religion, nationality, membership in a particular social
group, or political opinion.’” Barajas-Romero v. Lynch, 846
F.3d 351, 356 (9th Cir. 2017) (quoting 8 U.S.C.
§ 1231(b)(3)(A)). Petitioners meet this burden if they show
finding of no political-opinion nexus looked only at two assaults about
which Salguero Sosa testified; accordingly, if the BIA on remand were
to find that cumulatively Salguero Sosa suffered persecution, then the
scope of that persecution may require a new nexus analysis. Similarly,
if the BIA finds past persecution and the government fails to rebut the
presumption that finding triggers, then any disfavored-group analysis
would be unnecessary. We, of course, express no view on how the BIA
should resolve these issues on remand. Moreover, in the event the BIA
reaches substantially similar nexus and disfavored-group determinations
on remand, Salguero Sosa will be able to seek judicial review without
any law-of-the-case effect flowing from this decision regarding those
issues.
14 SALGUERO SOSA V. GARLAND
that they have a “clear probability of persecution,” Aden v.
Wilkinson, 989 F.3d 1073, 1085–86 (9th Cir. 2021) (quoting
Korablina, 158 F.3d at 1045), and their persecution has a
nexus to one of the five enumerated categories, Bajaras-
Romero, 846 F.3d at 357; 8 C.F.R. § 208.16(b). A finding
of past persecution triggers a rebuttable presumption that the
petitioner will suffer future persecution. Aden, 989 F.3d at
1086; 8 C.F.R. § 208.16(b)(1).
Because withholding of removal, like asylum, requires a
showing of future persecution and employs a past-
persecution rebuttable presumption, our cumulative-effect
holding applies to Salguero Sosa’s withholding of removal
claim as well. Though withholding of removal and asylum
have different burdens of proof, the substantive definition of
what constitutes past persecution is the same. See, e.g.,
Korablina, 158 F.3d at 1043–46. The BIA, therefore, erred
and we remand for it to apply the correct legal framework in
evaluating past persecution.
B. Nexus
As the government concedes, the BIA also erred by
applying an incorrect nexus requirement to Salguero Sosa’s
withholding of removal claim. 4 The nexus requirement for
withholding of removal is less demanding than that for
asylum. In asylum cases, petitioners must show that one of
the five enumerated categories is “at least one central
reason” for their persecution. Barajas-Romero, 846 F.3d at
358 (quoting 8 U.S.C. § 1158(b)(1)(B)(i)). For withholding
4
Though we decline to reach Salguero Sosa’s fact-intensive substantial-
evidence challenge to the BIA’s nexus finding, we reach this issue
because it is an independent legal error unmoored from the BIA’s
factfinding on remand.
SALGUERO V. GARLAND 15
of removal, by contrast, petitioners need only show that one
of the five enumerated categories is “a reason” for their
persecution. Id. (quoting 8 U.S.C. § 1231(b)(3)(C)). “The
phrase ‘a reason’ includes weaker motives than ‘one central
reason.’” Id. at 359.
Here, the BIA applied the heightened “at least one
central reason” nexus requirement to Salguero Sosa’s
withholding of removal claim. The BIA, therefore, erred and
we remand for it to apply the correct legal framework for
evaluating withholding of removal’s nexus requirement.
III. CAT Relief
Salguero Sosa challenges the BIA’s denial of CAT relief
by attacking, on substantial-evidence grounds, the agency’s
conclusion that he would not be tortured with the
acquiescence of the Guatemalan government.
To qualify for CAT relief, an applicant “must establish
that ‘it is more likely than not that he or she would be
tortured if removed to the proposed country of removal.’”
Garcia-Milian v. Holder, 755 F.3d 1026, 1033 (9th Cir.
2014) (quoting 8 C.F.R. § 208.16(c)(2)). Torture is “more
severe than persecution,” Davila v. Barr, 968 F.3d 1136,
1144 (9th Cir. 2020) (quoting Guo, 897 F.3d at 1217), and
requires the infliction of “an extreme form of cruel and
inhuman treatment,” 8 C.F.R. § 208.18(a)(2). Of particular
significance here, “the torture must be ‘inflicted by or at the
instigation of or with the consent or acquiescence of a public
official acting in an official capacity or other person acting
in an official capacity.’” Garcia-Milian, 755 F.3d at 1033(quoting 8 C.F.R. § 208.18(a)(1)).
Substantial evidence supports the BIA’s conclusion that
the Guatemalan government would not acquiesce in any
16 SALGUERO SOSA V. GARLAND
torture Salguero Sosa might suffer. In attempting to rebut
this finding, Salguero Sosa points to four categories of
evidence. Though Petitioner’s proffered evidence might
suggest some government disregard or animus toward
Salguero Sosa in particular or dwarfs generally, 5 it does not
meet the high bar of compelling the conclusion that the
Guatemalan government would acquiesce in Salguero
Sosa’s torture.
First, Salguero Sosa points to his testimony that a state-
run hospital allegedly caused the death of his brother (who
was also a dwarf) and that the director of that hospital
allegedly threatened Salguero Sosa when he complained.
However, the IJ found that there was “nothing in the
evidentiary record to substantiate” Salguero Sosa’s
testimony about what occurred at the hospital—other than
the fact that Salguero Sosa had an older brother who died
while being treated for a lung infection. The IJ further found
that there was “no reliable indication whatsoever” that
Salguero Sosa was “targeted for harm in Guatemala by
members of the medical arts community.”
Second, Salguero Sosa relies on past retaliation by the
Guatemalan government against human rights advocates.
However, the BIA found that such past retaliation was not as
broadly practiced as Salguero Sosa contends. The agency
found that government retaliation was directed mostly
“toward groups that investigate land disputes or natural
resources”; that “most human rights defenders were able to
operate without restrictions”; and that “there was insufficient
5
We express no opinion on how this evidence relates to asylum and
withholding of removal showings, including PSG nexus and
membership in a disfavored group.
SALGUERO V. GARLAND 17
evidence of authorities targeting human rights defenders of
the disabled.”
Third, Salguero Sosa argues that the timing of death
threats made to him and assaults he suffered—after media
appearances critical of the government and during an
election year—show that the government would acquiesce
in his torture. Fourth, Salguero Sosa points to a statement
by a public official—made in the context of a legislative
debate over a proposed disability law—that “disabled people
only constitute an expense for the country.” While these two
latter categories of evidence might support an inference of
government animus, they do not overcome our “highly
deferential” review of BIA’s factual findings in which we
reverse only if “any reasonable adjudicator would be
compelled to conclude to the contrary.” Nasrallah, 140 S.
Ct. at 1692 (quoting 8 U.S.C. § 1252(b)(4)(B)). Therefore,
substantial evidence supports the BIA’s determination that
Salguero Sosa would not, with the acquiescence of the
government, be subjected to torture, and his CAT claim fails
CONCLUSION
For the foregoing reasons, the petition for review is
GRANTED IN PART, DENIED IN PART, and
REMANDED. Each party shall bear its own costs for this
petition for review. See Fed. R. App. P. 39(a)(4), (b); 28
U.S.C. § 2412(a)(1).
WU, District Judge, concurring in part:
I concur in the majority opinion’s (“Opinion”) remand of
Sosa’s withholding of removal claim and denial of his
application for protection under the Convention Against
18 SALGUERO SOSA V. GARLAND
Torture. However, I am unable to join in the majority’s
remand of Sosa’s asylum claim based upon alleged past
persecution in Guatemala.
I.
On January 24, March 10, and May 20, 2014, hearings
before the immigration judge (“IJ”) were conducted as to
whether Sosa qualified for relief from removal. Evidence
was presented and the IJ fully considered all of the following
areas which Sosa proffered to establish past persecution due
to his dwarfism and/or human rights advocacy: (1) his
childhood experiences; (2) educational adversities 1 (i.e., his
initially not being allowed to attend any school,2 the bullying
he encountered from his fellow students, and the lack of
support from some teachers); (3) employment barriers due
to his dwarfism; 3 (4) his having been a victim of crimes in
Guatemala (e.g., his being mugged on a number of
occasions); 4 (5) death threats due to his advocating for
persons diagnosed with dwarfism; 5 (6) the medical care
1
Sosa did attend grade school, high school, and eventually obtained two
college degrees.
2
The earliest impediment was his father’s objections to enrolling him in
school because of his dwarfism.
3
Although he experienced difficulties throughout his working career due
to his dwarfism, Sosa was able to obtain numerous jobs including a
supervisory position at a hotel and being hired as a regional manager for
a security company, plus he was certified as a public accountant.
4
The IJ concluded that the various crimes all appeared to be theft-related
and that, while Sosa may have been seen by the attackers as a convenient
target because of his diminished stature, it was not part of a pattern or
practice of persecution directed at him.
5
There is no evidence in the record that any person who made a death
threat actually attempted to act on it.
SALGUERO V. GARLAND 19
received by his brother (who also was a dwarf and who died
after seven days of hospitalization for a lung infection); 6 and
(7) social mistreatment. 7 The IJ concluded that Sosa was not
“eligible to receive asylum” because “the Immigration Court
has gone on to recognize that in every instance what [Sosa]
may have experienced was nothing greater than
discrimination focused on him . . . . that discrimination is
less provocative than persecution . . . . [and i]t follows that
[Sosa] was not previously persecuted in Guatemala.”
The IJ discussed two incidents where Sosa claims to have been
assaulted and robbed by persons who, during the crimes, commented on
his advocacy endeavors. The IJ noted that Sosa’s testimony at the
hearing was “at variance” in certain material areas with the lengthy
reports which he provided to the police following the incidents;
especially where he failed to inform the police of the alleged comments
made by his attackers or his belief that the attacks were due to his
advocacy activities. Likewise, the Board of Immigration Appeals also
observed that Sosa had not mentioned those comments/threats in either
his original or amended asylum declarations even though he was
represented by counsel at the time.
6
While Sosa believes that his brother died due to the medical
indifference of hospital staff arising from their antipathy to his brother’s
dwarfism, the IJ found that Sosa had no evidence to support his
suspicions that his brother had received inadequate medical treatment or
that any purported medical malpractice stemmed from anti-dwarf
animus.
7
Sosa testified as to his having a romantic relationship with a woman of
normal stature, whose family disapproved of the liaison. Eventually, the
woman’s mother pressured her daughter into breaking off the
relationship and aborting the child which she was then-carrying. While
recognizing the obvious pain that Sosa suffered as a result of that
situation, the IJ nevertheless found that the incident did not establish
persecution but rather constituted discrimination against him by the
mother.
20 SALGUERO SOSA V. GARLAND
The Board of Immigration Appeals (“BIA”), after
reviewing incidents raised by Sosa, upheld the IJ’s
determination that he had not established past persecution.
However, the BIA remanded the issue of whether Sosa had
a well-founded fear of persecution because the IJ never made
findings as to whether Sosa “is a member of a ‘disfavored
group’ or whether [he] is at an ‘individualized risk of being
singled out for persecution.’”
Additional testimony was taken before the IJ on March
27, 2017. As to the issue of whether there was a pattern or
practice of persecution against dwarfs in Guatemala, the IJ
held: “[t]he record here does not demonstrate widespread
brutality against dwarves or that there is any criminalization
due to one’s stature or disability in Guatemala. The record
simply points to certain societal discrimination factors
especially related to employment which this Court is unable
to find is a pattern or practice of persecution against
dwarves.” As to the issue of whether there is a pattern or
practice of persecution against “human rights defenders” in
Guatemala, the IJ found: “[t]he record here indicates that the
Guatemalan government works with many human rights
[organizations] and many operate in the country without
restriction. The Country Report states that most of the
violence that was targeted against human rights groups dealt
with groups investigating land disputes or exploitation of
natural resources. [Sosa] has failed to point to any violence
or threats of harm towards his specific organization, or any
organization that is lobbying on behalf of the disabled in
Guatemala.” The IJ concluded that Sosa “has failed to offer
any evidence showing that a pattern or practice of
persecution exists against either dwarfs or human rights
defenders in Guatemala.” As to whether Sosa had shown
that he himself was singled out for persecution because of
SALGUERO V. GARLAND 21
his being a dwarf and/or human rights defender, the IJ held
that he had not done so, relying primarily upon the agency’s
previous determination that Sosa “did not establish that he
was subjected to past persecution in Guatemala.”
The BIA agreed with the IJ’s factual findings and
concluded, inter alia, that: (1) as to Sosa’s being a dwarf in
Guatemala, “the past harm [he] encountered was
discrimination, not persecution,” and (2) as to Sosa’s being
an advocate for persons with restricted growth, “there is
insufficient evidence that persons advocating for dwarves or
the disabled are singled out for harm by the government or
by persons whom the government is unable or unwilling to
control.”
II.
As to the denial of asylum, the Opinion agrees with
Sosa’s first argument that the BIA erred in failing to conduct
a “cumulative-effect” review when assessing the incidents
of his alleged past persecution, and remands the matter for
“further proceedings consistent with this opinion.” The
majority goes on to state: “We have previously held that
when determining whether a petitioner’s past mistreatment
rises to the level of persecution, the BIA must apply
cumulative-effect review.” (Emphasis added).
The Opinion does not indicate that the IJ or BIA failed
to consider all of the relevant evidence proffered by Sosa;
nor does it conclude that the IJ or BIA was incorrect in
deciding that Sosa’s individual incidents of mistreatment
were only acts of discrimination and/or harassment, which
did not rise to the level of persecution. 8 While the majority
8
As observed in Sharma v. Garland, 9 F.4th 1052 (9th Cir. 2021):
22 SALGUERO SOSA V. GARLAND
remands the matter to the BIA for a “cumulative-effect
review,” it is not exactly clear what such a review would
entail, and the Opinion does not offer any hints.
III.
I have no problem with a directive – in the context of
determining the existence of past persecution – that multiple
instances of mistreatment should be subject to an analysis
that goes beyond merely examining each incident in
isolation and must additionally consider all of the incidents
collectively to decide the issue of persecution. See Guo v.
Ashcroft, 361 F.3d 1194, 1203 (9th Cir. 2004) (“We look at
the totality of the circumstances in deciding whether a
finding of persecution is compelled.”). However, the
Opinion states that the Circuit already has a mandate which
requires “that when determining whether a petitioner’s past
mistreatment rises to the level of persecution, the BIA must
apply cumulative-effect review.” I respectfully disagree.
First, there is a question as to whether the Circuit has
previously articulated such a rule. All of the cases cited in
the Opinion for that proposition have not expressly done so.
“Persecution,” we have repeatedly held, “is an extreme
concept that means something considerably more than
discrimination or harassment.” . . .
Because it is an extreme concept, persecution
“does not include every sort of treatment our society
regards as offensive.” . . . This means that “some
circumstances that cause petitioners physical
discomfort or loss of liberty do not qualify as
persecution, despite the fact that such conditions have
caused the petitioners some harm.” . . . Simply stated,
“not all negative treatment equates with persecution.”
Id. 1060-61 (cleaned up and citations omitted).
SALGUERO V. GARLAND 23
Rather, the cases merely reference (or are variations of)
previous holdings that state: (1) “[a] single isolated incident
may not ‘rise to the level of persecution, [but] the cumulative
effect of several incidents may constitute persecution,’”
Korablina v. INS, 158 F.3d 1038, 1044 (9th Cir. 1998)
(quoting Singh v. INS, 94 F.3d 1353, 1358 (9th Cir. 1996));
and/or (2) there will be cases where “[t]he key question is
whether, looking at the cumulative effect of all the incidents
that a Petitioner has suffered, the treatment he received rises
to the level of persecution,” Sharma, 9 F.4th at 1061
(quoting Singh v. INS, 134 F.3d 962, 967 (9th Cir. 1998)).
There does not appear to be a published case where the
Circuit actually held that some sort of established
“cumulative-effect review” must be applied by the IJ or BIA
when determining whether a petitioner’s past mistreatment
rises to the level of persecution, and that the failure to
conduct such a review warrants remanding the matter back
to the BIA.
Second, if the rule proposed in the Opinion is enacted,
what will that mean as a practical matter? Can the IJ and/or
BIA, after examining each of the proffered incidents of
mistreatment, simply announce that “the cumulative effect
of [petitioner’s] alleged harm[s] do[] not rise to the level of
persecution.” 9 See, e.g., Singh v. Garland, 48 F.4th 1059,
1065 (9th Cir. 2022). Or will they be required to articulate
the details of their cumulative-effect review. Further, will a
9
For example, would it have sufficed in this case if, at the end of the
examination of the incidents delineated in the record, the IJ and/or BIA
had said something to the effect that: “the instances of mistreatment
raised by the petitioner simply amount to acts of discrimination and/or
harassment which individually and in the aggregate do not constitute
past persecution.”
24 SALGUERO SOSA V. GARLAND
failure to sufficiently discuss the particulars of the
cumulative-effect review automatically mean that the matter
must be remanded to the agency for further proceedings?
Third, if a hard-and-fast rule requiring a “cumulative-
effect review” is adopted, shouldn’t there be some
description as to what are the elements, factors, or steps of
such an analysis? The majority does not attempt any such
exposition; nor do any of the cases cited in the Opinion
contain such delineation. 10 Thus, the Opinion is totally
opaque regarding what the BIA is supposed to do on remand.
Further, the Opinion does not overturn but leaves intact the
IJ’s and BIA’s determinations: (1) that each of the individual
incidents raised by Sosa only amount to acts of
discrimination or harassment and not persecution; and (2)
that Sosa has not shown a pattern or practice of persecution
against dwarfs or disability advocates in Guatemala.
One might surmise that the Opinion is calling for a
reweighing of the evidence taking a gestalt approach as to
the issue of whether the individual acts of
discrimination/harassment cited by Sosa collectively reach a
10
The closest description of what such analysis might entail is contained
in Singh, 134 F.3d at 967-68, which describes the “inquiry [as being]
heavily fact-dependent, and is perhaps best answered by comparing the
facts of Petitioner’s case with those of similar cases.” However, if the
analysis boils down to a comparison between the petitioner’s facts and
those in similar cases where a decision has been rendered as to whether
persecution was (or was not) established, then “cumulative-effect
review” is a misnomer and should rather be labelled a “comparative
review.” Further, would the petitioner have the burden of locating and
presenting those similar cases to the agency?
SALGUERO V. GARLAND 25
critical mass which can be deemed persecution. 11 How
exactly that determination is to be made remains a mystery.
But unless the cumulative-effect analysis as to past
persecution is tethered to some standards or criteria, it may
wind up being rudderless and entirely subjective, akin to
Justice Stewart’s famous non-test for obscenity – “I know it
when I see it.” Jacobellis v. Ohio, 378 U.S. 184, 197 (1964)
(Stewart, J., concurring).
IV.
I do not join in the remand of Sosa’s asylum claim based
upon alleged past persecution because: (1) I would not find
that this Circuit has previously demanded a cumulative-
11
But it should be remembered that this entire process is being conducted
under a highly deferential substantial evidence review. As observed in
Sharma:
We review for substantial evidence the BIA’s
determination that a petitioner has failed to establish
eligibility for asylum or withholding of removal . . . .
[and] the BIA’s particular determination that a
petitioner’s past harm “do[es] not amount to past
persecution.”
Because “the law entrusts the agency to make the
basic” eligibility determinations, “[t]he substantial
evidence standard of review is ‘highly deferential’ to
the [BIA].” Consistent with this level of deference, we
may grant a petition only if the petitioner shows that
the evidence “compels the conclusion” that the BIA’s
decision was incorrect. In other words, we ask not
whether “a reasonable factfinder could have found”
the harm the petitioner experienced “sufficient to
establish persecution,” but whether “a factfinder
would be compelled to do so.”
9 F.4th at 1060 (cleaned up and citations omitted).
26 SALGUERO SOSA V. GARLAND
effect review in all such cases with the penalty of remand in
its absence; and (2) it is uncertain what that review would
entail and how it is to be (or could be) conducted in the
present case.