Alberto Pupo Diaz v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 11 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALBERTO PUPO DIAZ, No. 20-71321
Petitioner, Agency No. A201-564-247
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 13, 2022
Pasadena, California
Before: BADE and LEE, Circuit Judges, and CARDONE,** District Judge.
Alberto Pupo Diaz petitions for review of the Board of Immigration
Appeals’ (BIA) order dismissing his appeal of an Immigration Judge’s (IJ) denial
of his applications for asylum, withholding of removal, and relief under the
Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Kathleen Cardone, United States District Judge for the
Western District of Texas, sitting by designation.
1
We review legal issues de novo and factual findings for substantial evidence,
Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc), and
we grant the petition in part, deny it in part, and remand.
While in Cuba, Diaz worked at a government-owned coffee factory.1 He
objected to working conditions at the factory, and in March 2018, he was accused
of “insubordination and defamation,” by government officials. Months later, in
October 2018, two Cuban police officers threatened Diaz near his home. In
January 2019, two officers beat Diaz because of his workplace conduct and
friendship with a member of the opposition party in Cuba. Diaz sought medical
attention after the beating and missed one week of work due to back pain.
1. Substantial evidence supports the BIA’s conclusion that Diaz did not suffer
past persecution. See Gu v. Gonzalez, 454 F.3d 1014, 1017–22 (9th Cir. 2006)
(holding that the record did not compel a finding of past persecution when a
petitioner was detained for three days, struck on the back ten times with a rod, and
interrogated in a room filled with instruments of torture); Prasad v. I.N.S., 47 F.3d
336, 339–40 (9th Cir. 1995) (holding that the record did not compel the conclusion
that a petitioner suffered past persecution when he was detained for four to six
1
Before this, Diaz attended university in Cuba. He was expelled for failing
to complete a final project, although he speculates that his criticism of Cuba’s
economic and educational systems played a role in his expulsion.
2
hours, hit and kicked by police, and targeted by assailants who threw rocks at his
house and attempted to steal his property).
Diaz argues that the agency failed to consider the cumulative effect of his
increasingly negative encounters with the Cuban government. We disagree. The
IJ considered both police encounters. The IJ acknowledged Diaz’s “criticism of
government leaders” and Cuba’s “failing system,” as well as Diaz’s effort to tie the
October 2018 threat to the March 2018 workplace incident. But the IJ found it
illogical to link the October 2018 threat to an incident that occurred more than six
months prior. The IJ considered Diaz’s work history, observing that he had raised
many grievances and had been sanctioned but otherwise worked at the factory for
nine years without incident. While Diaz is correct that the IJ did not explicitly
consider his expulsion from university, the record suggests that he was expelled
because he failed to complete a final project, and Diaz did not identify any other
incident that occurred at university. We thus conclude that the agency adequately
considered the cumulative effect of the harm Diaz suffered. See Padash v. I.N.S.,
358 F.3d 1161, 1165–66 (9th Cir. 2004).
2. Diaz’s asylum claim does not end there because “[a] petitioner who cannot
show past persecution might nevertheless be eligible for relief if he instead shows a
well-founded fear of future persecution.” Sharma v. Garland, 9 F.4th 1052, 1065
(9th Cir. 2021) (citation omitted). To be well-founded, Diaz’s fear must be
3
“subjectively genuine and objectively reasonable.” Ahmed v. Keisler, 504 F.3d
1183, 1191 (9th Cir. 2007) (citation omitted). Diaz’s credible testimony satisfies
the subjective component. See id. The agency erred in assessing the objective
component because it did not consider Diaz’s fear based on his alleged status as a
deserter.2 See Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005) (“IJs
and the BIA are not free to ignore arguments raised by a petitioner.”); cf.
Rodriguez-Roman v. I.N.S., 98 F.3d 416, 429–30 (9th Cir. 1996) (“[A]n asylum
applicant who left his country because of his political opinions and who faces
severe punishment for the crime of illegal departure has established that he is
subject to persecution . . . .”).
Diaz testified that he is afraid to return to Cuba because he has been
“accused” or “flagged in the system as a deserter.” Although the IJ acknowledged
that Diaz is afraid to return to Cuba because “he would be accused of deserting his
country,” the IJ never assessed whether such fear constitutes a well-founded fear of
future persecution. The BIA simply adopted the IJ’s reasoning. We therefore
grant the petition on this ground and remand so that the BIA can properly evaluate
whether Diaz established a well-founded fear of future persecution based on his
status as a deserter. See I.N.S. v. Ventura, 537 U.S. 12, 16–17 (2002).
2
Diaz exhausted this issue by sufficiently raising it to the BIA. See
Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 873 (9th Cir. 2008) (“[P]ro se claims
are construed liberally for purposes of the exhaustion requirement.”).
4
3. The BIA also erred in evaluating Diaz’s CAT claim. “The regulations
implementing CAT explicitly require the IJ to consider ‘all evidence relevant to
the possibility of future torture.’” Aguilar-Ramos v. Holder, 594 F.3d 701, 705 n.6
(9th Cir. 2010) (quoting 8 C.F.R. § 208.16(c)(3)). “CAT claims must be
considered in terms of the aggregate risk of torture from all sources, and not as
separate, divisible CAT claims.” Quijada-Aguilar v. Lynch, 799 F.3d 1303, 1308
(9th Cir. 2015). The IJ and BIA did not consider the likelihood that Diaz will be
tortured as a deserter if returned to Cuba. See Parada v. Sessions, 902 F.3d 901,
915 (9th Cir. 2018) (“Relevant evidence includes the petitioner’s testimony and
country conditions evidence.”). We therefore grant the petition on this additional
ground and remand to allow the BIA to evaluate Diaz’s CAT claim by considering
the aggregate risk of torture arising from all sources.
GRANTED IN PART, DENIED IN PART, REMANDED.3
3
The motion for a stay of removal is granted. Diaz’s removal is stayed
pending a decision by the BIA.
5