Ana Rivera-Montenegro v. Jeffrey Rosen ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 24 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANA MARINA RIVERA-MONTENEGRO, No. 19-70548
Petitioner, Agency No. A206-895-204
v.
MEMORANDUM*
JEFFREY A. ROSEN, Acting Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 11, 2020
San Francisco, California
Before: BOGGS,** M. SMITH, and BENNETT, Circuit Judges.
Petitioner Ana Rivera-Montenegro seeks review of the decision of the Board
of Immigration Appeals (BIA), which affirmed the Immigration Judge’s (IJ) denial
of her application for asylum, withholding of removal, and relief under the
Convention Against Torture (CAT). Rivera-Montenegro contends that the BIA
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
committed legal error with respect to her asylum and withholding-of-removal
claims. Specifically, she argues that the BIA failed to undertake a mixed-motives
analysis in determining whether she had established that the gang extortion she
experienced was motivated in part by her status as a single female and member of
numerous single female head of household social groups. 1 In addition, Rivera-
Montenegro argues that the BIA erred by failing to consider the entire record when
it denied her claim for CAT relief. We have jurisdiction under 8 U.S.C. § 1252,
and we grant the petition for review with respect to Rivera-Montenegro’s asylum
and withholding-of-removal claims, deny it with respect to her CAT claim, and
remand.
Rivera-Montenegro is a 34-year-old native and citizen of El Salvador, who
fled to the United States with her now twelve-year old daughter following repeated
gang harassment and extortion. Her application stated: “I was threatened by the
gang, Mara 18, who targeted me because I was a single mother and business owner
and I lived alone with my seven-year-old daughter. I was forced to pay ‘[la] renta’,
but when I could no longer afford it, they threatened to harm my daughter and me,
1
Rivera-Montenegro asserted membership in the following social groups: (1)
Salvadoran female heads of household; (2) Salvadoran female heads of household
without male support; (3) single Salvadoran women without male support; (4)
single Salvadoran mothers without male support; (5) single Salvadoran women
small business owners; and (6) single Salvadoran women small business owners
without male support.
2
so I fled.” While in El Salvador, Rivera-Montenegro and her sisters experienced
serious continuing abuse from men and gangs as they were growing up, ranging
from sexual harassment to violent assaults. After her mother relocated to the
United States, Rivera-Montenegro and her daughter moved to Soyapango, San
Salvador. Her neighborhood there was also overrun with gang members. In 2012,
she opened a “mini market” out of her home, selling products such as beans, rice,
and chips. After she started her business, gang members came to her store and told
her that she had to pay “la renta” of $150 per month in order to keep her business
open. While no threats to physically harm her were initially conveyed, she
considered “la renta” demand a threat in itself. Gang members returned every
month to collect the payments, and when Rivera-Montenegro was unable to pay
the full amount, they verbally accosted her, often with threatening gestures, name
calling, vulgarities, and by telling her that she knew what they were capable of
doing to her.
The gang members would point to Rivera-Montenegro’s daughter and say,
“She’s your daughter,” and tell Rivera-Montenegro that she knew what they were
capable of doing to her daughter. On one occasion when she was unable to pay the
full $150 amount, the gang specifically told her they were going to hurt her
daughter and she “couldn’t do anything against them.” Rivera-Montenegro
became very frightened that the gang was going to harm her daughter. She
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thereafter moved her daughter away to live with her grandparents. The gang
members returned to her home, and even inquired why she was “hiding [her
daughter],” as they continued their verbal threats. Rivera-Montenegro closed her
shop, fled El Salvador, and came to the United States.
The IJ denied Rivera-Montenegro’s application for asylum and withholding
of removal as well as her claim for CAT relief. In her oral decision, the IJ
specifically found that “the gang used [Rivera-Montenegro’s] status as an adult
female who was living without a protective male in her household . . . to intimidate
[her] in an effort to control her and an effort to make sure that she paid them the
extortion that they wanted.” But the IJ rejected this as a reason for granting relief,
including because “using someone’s status as a means of leverage is different than
targeting a respondent because she is different in a way that is regarded as
offensive. What is lacking here is any evidence of persecutory motive by the
gang.” The IJ also found that not just Rivera-Montenegro, but “[v]irtually
everyone in El Salvador who is perceived as having money” is a victim of
extortion. In the IJ’s view, Rivera-Montenegro was unable to establish past
persecution for asylum purposes because “she hasn’t been able to establish that she
was targeted because of one of the enumerated grounds in the asylum statute,
rather than the fact that she was simply an attractive victim of crime.”
4
With respect to Rivera-Montenegro’s withholding-of-removal claim, the IJ
held that, under the “mixed-motive standard,” Rivera-Montenegro failed to show
that the extortion was persecutory in nature. In the IJ’s view, Rivera-Montenegro
showed “no nexus between the harm and the proposed particular social groups.”
“[T]he extortion and the reprisals are criminal enterprises intended to increase the
coffers of the gangs and increase their exertion of control over their territory and
over the people living in their territory.”
Finally, the IJ rejected Rivera-Montenegro’s CAT claim. First, Rivera-
Montenegro’s experiences demonstrated that she is not likely to be tortured upon
her return to El Salvador given that she failed to pay “la renta” in full on multiple
occasions and was never physically harmed. Second, Rivera-Montenegro failed to
show the government acquiesced in the alleged torture.
The BIA affirmed the IJ’s decision on limited grounds. The BIA held that
Rivera-Montenegro had failed to establish “a nexus between the harm she
experienced and fears and a ground protected under the [INA].” The BIA
explained that there was no clear error in the IJ’s holding that “the perpetrators of
the extortion and other related crimes were motivated by a desire to obtain money
for their organization, rather than a desire to overcome a protected characteristic,
such as a membership in the particular social group.” (emphasis added).
Accordingly, the BIA rejected Rivera-Montenegro’s asylum and withholding-of-
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removal claims.
The BIA also rejected Rivera-Montenegro’s CAT claim. The BIA agreed
with the IJ that Rivera-Montenegro “did not establish that she will more likely than
not suffer harm rising to the level of ‘torture’ if returned to” El Salvador. The BIA
also held that even if Rivera-Montenegro had proven that she would be tortured
upon her return, she had failed to prove that the harm would have occurred with
the consent or acquiescence of any public official in El Salvador.
We “review denials of asylum, withholding of removal, and CAT relief for
substantial evidence.” Silva-Pereira v. Lynch, 827 F.3d 1176, 1184 (9th Cir. 2016)
(internal quotation marks and citations omitted). We review “determinations of
mixed questions of law and fact for substantial evidence, and legal questions de
novo.” Zumel v. Lynch, 803 F.3d 463, 471 (9th Cir. 2015) (quotation marks and
citation omitted). Here, because the BIA conducted a review of the record and law
to consider the merits of Rivera-Montenegro’s claim—adding its own analysis in
affirming the IJ’s reasoning—we review both decisions. See Huang v. Holder, 744
F.3d 1149, 1152 (9th Cir. 2014). However, “[i]n reviewing the decision of the
BIA, we consider only the grounds relied upon by that agency. If we conclude that
the BIA’s decision cannot be sustained upon its reasoning, we must remand to
allow the agency to decide any issues remaining in the case.” Andia v. Ashcroft,
359 F.3d 1181, 1184 (9th Cir. 2004) (per curiam).
6
We grant the petition for review with respect to Rivera-Montenegro’s
asylum and withholding-of-removal claims. A mixed-motives analysis is required
where the record supports that multiple reasons could have motivated the alleged
persecutory actions. See Parussimova v. Mukasey, 555 F.3d 734, 740–41 (9th Cir.
2009). We agree with Rivera-Montenegro’s contention that the BIA committed
legal error when it employed a binary analysis instead of a mixed-motives analysis,
as evinced by its use of the phrase “rather than”: “the perpetrators of the extortion
and other related crimes were motivated by a desire to obtain money for their
organization, rather than a desire to overcome a protected characteristic.” The BIA
provided no further analysis or explanation, leaving us to conclude that it did not
consider the possibility that the gangs were motivated at least in part by Rivera-
Montenegro’s status as a single female and single female mother. 2
We reject the government’s position that there is no record evidence that
supports that the gang was motivated even in part by any alleged protected ground.
As we have noted, the IJ specifically found that the gang was not only aware of
Rivera-Montenegro’s status as a single woman and mother but used it as leverage
and to intimidate her in their efforts to extort her. And, the IJ may have rejected
Rivera-Montenegro’s claim because she presented no evidence the gangs saw her
2
This could potentially encompass all the social groups advanced by Rivera-
Montenegro. See supra, n.1.
7
status as “offensive,” but as the government correctly conceded at oral argument,
Oral Argument at 21:15, Rivera-Montenegro v. Barr, 19-70548, there is no
requirement that the gang have viewed Rivera-Montenegro’s alleged protected
group “as offensive,” see Ayala v. Sessions, 855 F.3d 1012, 1021 (9th Cir. 2017)
(finding there could be a nexus between extortion and the petitioner’s membership
in a particular social group, namely, her family, which was targeted because they
owned hotels). Accordingly, we grant the petition for review as to Rivera-
Montenegro’s asylum and withholding-of-removal claims and remand to the BIA
for further proceedings.3
We deny the petition for review with respect to Rivera-Montenegro’s CAT
claim because substantial evidence supports the holding that Rivera-Montenegro
was unable to show consent or acquiescence of El Salvadoran public officials as to
any alleged torture she would experience upon her return. The record indicates
that while there is evidence that the government is having difficulty curbing gang
activity, efforts to curb that activity are current and ongoing. Rivera-Montenegro
therefore cannot meet the requisite standard required for CAT relief.
In addition, nothing compels reversal of the BIA’s finding that the IJ did not
3
Rivera-Montenegro advanced an alternative argument before the IJ and the
BIA—that she was eligible for asylum and withholding of removal on the basis of
an imputed political opinion. Neither the IJ nor the BIA addressed this argument.
Because we are limited to the issues reached by the BIA, see Andia, 359 F.3d at
1184, we do not address this issue.
8
clearly err in her determination that Rivera-Montenegro had not established that
she would likely suffer harm rising to the level of torture if returned to El Salvador.
As the IJ correctly found, the gangs never physically harmed Rivera-Montenegro
on the multiple occasions when she failed to pay “la renta” in full. This supported
the IJ’s conclusion that Rivera-Montenegro’s “own experience” suggested that she
had not met her burden of proof. The record does not compel a contrary
conclusion.
PETITION FOR REVIEW GRANTED in part; DENIED in part;
REMANDED.
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