Jose Mendez v. Loretta E. Lynch ( 2016 )

FILED
NOT FOR PUBLICATION
AUG 30 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE A. MENDEZ, No. 13-70920
Petitioner, Agency No. A073-915-421
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 14, 2016
San Francisco, California
Before: KLEINFELD, RAWLINSON, and HURWITZ, Circuit Judges.
Jose A. Mendez petitions for review from the Board of Immigration
Appeals’ decision to deny his claims for asylum, withholding of removal, and
protection under the Convention Against Torture. We have jurisdiction pursuant to
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
8 U.S.C. § 1252. We grant in part and deny in part the petition for review, and
remand for further proceedings.
1. The Board concluded that Mendez was ineligible for asylum because he
he did not suffer past persecution, and did not have a well-founded fear of future
persecution. 8 C.F.R. § 208.13(b). The Board found “no reason in the record to
disturb [the Immigration Judge’s] finding” that Mendez “was credible.”
Mendez testified his family supported the government of El Salvador during
the country’s civil war. When Mendez was thirteen, he received “three notes in
school accusing him of giving information to the army,” and which “threatened
him.” His pastor, after seeing the notes, “suggested that Mendez move or leave the
country.” To avoid the guerillas, Mendez started sleeping at a different house each
night and taking different routes to school. One night, the guerillas knocked on the
door of the house that Mendez was staying in. He escaped out a back window and
ran away. As he ran, they shot him. Fortunately, his wound was a nonfatal one to
his left arm. Mendez fled El Salvador for the United States to avoid being killed.
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Despite concluding that Mendez was credible and had “articulated a social
group which is visible within Salvadoran society as affiliation with the army
during the civil war period,” the Board concluded that Mendez’s description of
these events were “too vague” to establish that he was “individually targeted.”
This conclusion is not backed by “substantial evidence,” because no reasonable
fact-finder could conclude that Mendez was not individually targeted. Ruano v.
Ashcroft, 301 F.3d 1155, 1159–61 (9th Cir. 2002) (holding that a similarly situated
petitioner was persecuted when he was “repeatedly threatened with death . . . [and]
hunted down (albeit unsuccessfully) by men with pistols who were out to harm
him.”).
A reasonable fact-finder would have to conclude that Mendez was
individually targeted, because he was individually threatened, individually chased,
and individually shot by his persecutors. Mendez is entitled to the presumption
that he has a well-founded fear of persecution on the basis of this past persecution.
8 C.F.R. § 208.13(b)(1). For the same reason, Mendez is also entitled to the
presumption that his life or freedom would be threatened if he returned to El
Salvador. Id. § 208.16(b)(1)(i).
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We grant Mendez’s petition and remand to the BIA to address in the first
instance whether the government has successfully rebutted both the presumption of
a well-founded fear of future persecution, and the presumption of eligibility for
withholding of removal.
3. We deny Mendez’s petition for review of his claim under the Convention
Against Torture. Mendez provided evidence that he was persecuted, but provided
no evidence that he would “more likely than not” be tortured if returned to his
country. Kamalthas v. INS, 251 F.3d 1279, 1283 (9th Cir. 2001).
Costs are awarded to petitioner.
PETITION GRANTED IN PART, DENIED IN PART, AND REMANDED.
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