Elmer Lopez-Rodriguez v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 1 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELMER ROSENDO LOPEZ-RODRIGUEZ, No. 21-70418
Petitioner, Agency No. A206-082-632
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted August 10, 2022
Seattle, Washington
Before: BERZON, CHRISTEN, and FORREST, Circuit Judges.
Petitioner Elmer Lopez-Rodriguez seeks review of the Board of Immigration
Appeals’ (BIA) 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. We grant the petition in part, deny in part, and remand to the BIA for
further proceedings.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
“Where, as here, the BIA cites [Matter of Burbano, 20 I. & N. Dec. 872, 874
(BIA 1994)] and also provides its own review of the evidence and law, we review
both the IJ’s and the BIA’s decisions.” Cordoba v. Barr, 962 F.3d 479, 481 (9th Cir.
2020) (alteration in original) (citation omitted). “We review questions of law de
novo and the agency’s factual findings for substantial evidence.” Ruiz-Colmenares
v. Garland, 25 F.4th 742, 748 (9th Cir. 2022) (internal quotation marks and citation
omitted).
1. Asylum and Withholding of Removal. The BIA’s denial of Lopez-
Rodriguez’s applications for asylum and withholding of removal is supported by
substantial evidence. Lopez-Rodriguez failed to establish that his proposed social
group, “young male business owners who are targeted for gang membership based
on the gang wanting the resources and connections that the business owner has
access to, and who refuse to join the gang,” is cognizable. See Macedo Templos v.
Wilkinson, 987 F.3d 877, 882–83 (9th Cir. 2021) (affirming BIA’s determination
that “Mexican wealthy business owners who do not comply with extortion attempts”
was not a cognizable particular social group); Ochoa v. Gonzales, 406 F.3d 1166,
1170 (9th Cir. 2005) (affirming BIA’s determination that “business owners in
Colombia who rejected demands by narco-traffickers to participate in illegal
activity” was not a cognizable particular social group). The record presented does
not demonstrate that Lopez-Rodriguez’s proposed group is “composed of members
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who share a common immutable characteristic” or that Guatemalan society
perceives young male business owners as a distinct social group. See Macedo
Templos, 987 F.3d at 882 (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237
(BIA 2014)). As such, we affirm the BIA’s conclusion that Lopez-Rodriguez has not
demonstrated eligibility for asylum or withholding of removal based on his
membership in a particular social group. See Cordoba, 962 F.3d at 483.1
2. CAT Relief. The BIA erred when denying Lopez-Rodriguez’s application
for CAT relief for failure to show torture by the government or with government
acquiescence. When analyzing a CAT claim, the BIA must consider “all relevant
evidence,” including a petitioner’s credible testimony and evidence of country
conditions. Parada v. Sessions, 902 F.3d 901, 914 (9th Cir. 2018). Failure to do so
constitutes reversible error. Diaz-Reynoso v. Barr, 968 F.3d 1070, 1089 (9th Cir.
2020); Aguilar-Ramos v. Holder, 594 F.3d 701, 705 (9th Cir. 2010).
Here, Lopez-Rodriguez’s country reports provide evidence of corruption by
Guatemalan public officials, including police officers, in connection with organized
criminals. See Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1186 (9th Cir. 2020)
(remanding to the BIA where “the country conditions evidence shows that
1
Because Lopez-Rodriguez cannot establish membership in a particular social
group, we need not address whether he has established the requisite nexus between
his claimed persecution and his status as a young, male business owner. See
Cordoba, 962 F.3d at 483.
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corruption of government officials, especially of the police with regard to drug
cartels, and specifically with regard to [a Mexican gang], remains a major problem
in Mexico.”). Additionally, Lopez-Rodriguez testified at several points that he and
the rest of his community did not go to the police or report gang threats and attacks
because it was common knowledge that the gang controlled the police and would
retaliate against those who tried to report against them. He also submitted several
letters from his community members and family documenting corruption by the
police and other governmental officials within his community and the country at
large. See Aguilar-Ramos, 594 F.3d at 705 (remanding where “[t]here [wa]s
evidence in the record that suggests that gangs and death squads operate in El
Salvador, and that its government is aware of and willfully blind to their existence.”).
Neither the IJ nor the BIA considered Lopez-Rodriguez’s country reports when
analyzing his CAT claim, nor did they explain why his testimony and documentary
evidence failed to establish government acquiescence or willful blindness.
Because we cannot assume that the IJ and BIA considered evidence they did
not discuss, we remand to the BIA to consider “all relevant evidence” regarding
Lopez-Rodriguez’s likelihood of future torture through government acquiescence or
willful blindness. See Madrigal v. Holder, 716 F.3d 499, 508 (9th Cir. 2013)
(“[W]here there is any indication that the BIA did not consider all of the evidence
before it . . . the decision cannot stand.” (citation omitted)).
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GRANTED IN PART; DENIED IN PART; REMANDED.2
2
Each party shall bear its own costs. See Fed R. App. Proc. 39(a)(4).
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