Magana Perez v. Garland ( 2023 )

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NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 18 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PABLO MANUEL MAGANA PEREZ, No. 21-247
Petitioner, Agency No. A206-591-013
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
March 7, 2023
San Francisco, California
Before: FRIEDLAND and R. NELSON, Circuit Judges, and KATZMANN,**
Judge.
Partial Concurrence and Partial Dissent by Judge KATZMANN.
Petitioner Pablo Manuel Magana Perez seeks review of a final order of
removal issued by the Board of Immigration Appeals (BIA). The BIA dismissed
Magana Perez’s appeal of the Immigration Judge’s (IJ) order denying his
*
This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
** The Honorable Gary S. Katzmann, Judge for the United States Court
of International Trade, sitting by designation.
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applications for asylum and withholding of removal under the Immigration and
Nationality Act and protection under the Convention Against Torture (CAT). We
have jurisdiction pursuant to 8 U.S.C. § 1252, Wang v. Sessions, 861 F.3d 1003,
1007 (9th Cir. 2017), and we deny the petition.
The agency’s factual findings are reviewed for substantial evidence.
Castillo v. Barr, 980 F.3d 1278, 1283 (9th Cir. 2020). “[T]o reverse such a
finding[,] we must find that the evidence not only supports a contrary conclusion,
but compels it.” Wang, 861 F.3d at 1007 (cleaned up). We cannot reinterpret the
record, reweigh the evidence, or substitute our judgment for that of the agency.
See Singh v. INS, 134 F.3d 962, 969 n.14 (9th Cir. 1998); Cruz-Navarro v. INS,
232 F.3d 1024, 1028 (9th Cir. 2000) (we cannot “substitute an analysis of which
side in the factual dispute we find more persuasive” (quoting Marcu v. INS, 147
F.3d 1078, 1082 (9th Cir. 1998))). “Where the BIA issues its own decision but
relies in part on the immigration judge’s reasoning, we review both decisions.”
Singh v. Holder, 753 F.3d 826, 830 (9th Cir. 2014) (citation omitted).
1. Substantial evidence supports the agency’s denial of Magana
Perez’s asylum and withholding claims. Magana Perez alleged that he was
persecuted on account of his membership in the particular social group of
“Mexican landowners who report crimes to the police.” The BIA affirmed the
IJ’s conclusion that Magana Perez did not establish a nexus between his harm and
his alleged particular social group because the goal of both Magana Perez’s past
attackers and the new gang present in his hometown area was “to maintain the
2
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criminal enterprise” rather than target Magana Perez for informing the police that
the gang had approached him about giving up his family’s land.
Substantial evidence supports this conclusion. The IJ concluded, based on
the record, that Magana Perez and his family were not singled out for any
particular reason and that the motivation for the gang’s attempted extortion was
mere criminal activity. In so doing, the IJ pointed to Magana Perez’s testimony
that his attackers’ motives, both past and future, were merely pecuniary, and that
no members of his family have been physically harmed, even though they
continue to own the land that his attackers sought. Accordingly, the record does
not compel the conclusion that Magana Perez established nexus.
2. Magana Perez argues the agency erred in denying CAT relief
because it found that Magana Perez could relocate to another part of Mexico upon
return and discounted evidence that he established past torture at the hands of the
Mexican police, which he argues would entitle him to a presumption of
nationwide harm.
Before the IJ, Magana Perez presented some evidence that the men who
attacked him may have been affiliated with the police and testified that they were
members of a gang. But he also testified that he did not know “which particular
group” was responsible for the attack. Based on this uncertainty, the IJ concluded
that Magana Perez could relocate to avoid future harm, and the BIA found no
clear error in that determination.
“While petitioners seeking CAT relief are not required to prove that safe
3
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relocation would be factually impossible, they do ‘carr[y] the overall burden of
proof.’” Tzompantzi-Salazar v. Garland, 32 F.4th 696, 705 (9th Cir. 2022)
(alteration in original) (quoting Maldonado v. Lynch, 786 F.3d 1155, 1164 (9th
Cir. 2015) (en banc)). The IJ explained that Magana Perez could not show that
whoever tortured him would still be interested in him or capable of finding him
throughout the country, and the record does not compel the alternative
conclusion. Magana Perez’s statements reflect uncertainty about the
circumstances of his kidnapping and the identity of his attackers. Even though
the attackers allegedly had a “badge” and attacked Magana Perez shortly after he
reported a previous crime to the local police, the record does not definitively
establish that the attackers were affiliated with the police. 1
The agency also considered the potential affiliation between the attackers
and the local police, and still concluded that Magana Perez had not met the high
burden required for relief under the CAT because Magana Perez could safely
relocate. Although we have held that persecution by local government actors
establishes a presumption of nationwide harm in the asylum context, see Edu v.
Holder, 624 F.3d 1137, 1146 (9th Cir. 2010), that presumption is not available in
1
The dissent notes that “Magana Perez’s testimony never suggests that the police
were not involved in his torture,” and that we have “reasoned that evidence of
police involvement in torture is relevant to the relocation analysis.” But this flips
our standard of review on its head. Under substantial evidence review, it is
irrelevant what the record does “not” suggest; the inquiry is whether the agency’s
determination is supported by sufficient record evidence. See, e.g., Sharma v.
Garland, 9 F.4th 1052, 1066–67 (9th Cir. 2021).
4
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the CAT context because the applicant for CAT relief “carries the overall burden
of proof,” Maldonado, 786 F.3d at 1164. 2 Thus, even if Magana Perez’s attackers
were affiliated with (or even included) the local police, this does not compel the
conclusion that the attackers would be likely to pursue Magana Perez should he
relocate in Mexico.3
2
The dissent also accuses us of applying a too onerous standard that “without a
presumption in the petitioner’s favor, the omitted evidence must ‘compel the
conclusion that the attackers would be likely to pursue Magana Perez should he
relocate in Mexico.’” This standard is not unduly onerous, rather it is the standard
we must apply under substantial evidence review. See, e.g., Sharma 9 F.4th at
1067.
3
The IJ did not mention the fact that Magana Perez testified that the attackers
showed him a “badge” upon arriving at his house. That omission does not
necessitate remand. See Hernandez v. Garland, 52 F.4th 757, 771 (9th Cir. 2022)
(“[I]f evidence is neither ‘highly probative [n]or potentially dispositive,’ the
Board need not expressly discuss it.” (second alteration in original) (quoting
Castillo v. Barr, 980 F.3d 1278, 1283 (9th Cir. 2020))).
The dissent instead critiques us for not resting our analysis on the standard
that the agency must consider “all evidence relevant to the possibility of future
torture,” including “[e]vidence that the applicant could relocate to a part of the
country of removal where he or she is not likely to be tortured” under 8 C.F.R. §
1208.16(c)(3). The core of the dissent’s grievance is that the agency failed to
specifically mention Magana Perez’s testimony that his kidnappers “showed him
a badge before abducting him,” which according to the dissent is “indication that
the [agency] did not consider all of the evidence before it,” and was “key
evidence” that “could shed light on their affiliation.” The dissent would also find
that the badge testimony was “highly probative or potentially dispositive”
“because it may establish a finding by the agency” that Magana Perez’s alleged
attackers were “still sufficiently associated with public authority to render future
relocation unsafe.”
But the dissent’s approach ventures too far into reweighing or crediting
testimony that was properly considered by the agency. The notion that a certain
piece of evidence merely “may” or “could” establish a finding defeats the
5
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On the contrary, as the IJ recognized, the record shows that Magana Perez’s
attackers were associated with a gang that is no longer located in his family’s
area. Magana Perez contends that the New Generation gang has now taken over
the area, and the record fails to evince that members of this gang would have any
reason to target Magana Perez in particular. This, and the fact that Magana
Perez’s close family members have continued to live in Mexico on his family’s
land without facing any physical harm, shows that the agency’s conclusion is
supported by substantial evidence.
PETITION DENIED.
assertion that this evidence is either highly probative or potentially dispositive.
Even the case on which the dissent relies, Parada v. Sessions, reversed the
agency’s denial of the petitioner’s CAT claim only because the agency “ignored
significant evidence in the record” including: (1) that petitioner “credibly feared
death at the hands of the MS gang”; (2) that the government acquiesced in gang
violence; and (3) that the same security forces that allegedly harmed petitioner
were government sponsored and regularly engaged in torture. 902 F.3d 901, 915
(9th Cir. 2018). The evidence that the agency failed to mention here is much less
probative than the evidence that the agency ignored in Parada.
6
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FILED
Magana Perez v. Garland, No. 21-247 APR 18 2023
MOLLY C. DWYER, CLERK
KATZMANN,* Judge, concurring in part and dissenting in part: U.S. COURT OF APPEALS
I join the majority in denying the petition for review of Magana Perez’s
applications for asylum and withholding of removal. With respect to the CAT
claim, however, we have indication that the agency overlooked testimony that
Magana Perez’s attackers showed him a badge before kidnapping and torturing
him. I differ from the majority and would instead hold that the agency did not
consider all relevant evidence when it concluded that Magana Perez was not
likely to be tortured upon return to Mexico. While not intimating a view as to the
agency’s ultimate decision, I would grant the petition in part and remand to the
agency to reconsider the CAT claim in light of the badge evidence.
I agree that the agency’s factual findings are indeed reviewed for
substantial evidence, Castillo v. Barr, 980 F.3d 1278, 1283 (9th Cir. 2020), and
the panel must “uphold a denial supported by reasonable, substantial, and
probative evidence on the record considered as a whole,” Garcia-Milian v.
Holder, 755 F.3d 1026, 1031 (9th Cir. 2014) (internal quotation marks and
citation omitted). But we must also enforce the agency’s express directive to
consider “all evidence relevant to the possibility of future torture,” including
“[e]vidence that the applicant could relocate to a part of the country of removal
where he or she is not likely to be tortured.” 8 C.F.R. § 1208.16(c)(3); see also
*
The Honorable Gary S. Katzmann, Judge for the United States Court of
International Trade, sitting by designation.
1
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Aguilar-Ramos v. Holder, 594 F.3d 701, 705 n.6 (9th Cir. 2010). The majority
does not apply this requirement to the case at bar and propounds an exclusive
application of the substantial evidence standard. But we cannot defer to an
agency’s finding of fact under the substantial evidence standard where there is
indication that the agency did not consider the relevant facts. The agency need
not “discuss each piece of evidence submitted,” Cole v. Holder, 659 F.3d 762,
771 (9th Cir. 2011), but “where the [agency] does not consider all the evidence
before it, either by misstating the record or failing to mention highly probative or
potentially dispositive evidence, its decision cannot stand,” Hernandez v.
Garland, 52 F.4th 757, 770 (9th Cir. 2022) (internal quotation marks and citation
omitted).
Despite having determined that Magana Perez was credible, the IJ and BIA
failed to mention his testimony that the kidnappers showed him a badge before
abducting him. The failure to mention the badge evidence is “indication that the
[agency] did not consider all of the evidence before it” concerning Magana
Perez’s police-specific relocation argument. Cole, 659 F.3d at 771–72. Whereas
the temporal proximity between Magana Perez’s visit to the police station and
next-day abduction was circumstantial evidence, the badge was the only direct
evidence on the record showing police involvement in his torture. And while the
IJ’s decision stated in the facts section that Magana Perez “believed the police
provided the information to the gang members based on the proximity to when
he was detained or abducted”—which the majority concludes is enough to
2
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determine that “the agency considered the potential affiliation between the
attackers and the police”—the record reveals that the badge also formed a basis
for his belief. Magana Perez was asked on direct examination about how he knew
that “the police [were] also some of the delinquents,” and he responded that “the
very next day” after his police report, “some men with a badge came.” In a case
where the identity of the kidnappers was not known, the badge was key
evidence—never contradicted or cast in doubt by other testimony—that could
shed light on their affiliation. 1 “[W]here potentially dispositive testimony and
documentary evidence is submitted, the [agency] must give reasoned
consideration to that evidence.” Cole, 659 F.3d at 772.
Moreover, the omitted badge evidence is “highly probative or potentially
dispositive,” Hernandez, 52 F.4th at 770, because it may establish a finding by
the agency that the three attackers—even though Magana Perez was unable to
identify them—were still sufficiently associated with public authority to render
future relocation unsafe. While the evidence is inconclusive as to whether the
kidnappers were themselves police officers or only associated with the police,
Magana Perez’s testimony never suggests that the police were not involved in his
torture. And we have reasoned that evidence of police involvement in torture is
1
The IJ reasoned that “[b]ecause respondent does not know who harmed him the
first time in 2009, there is little evidence in the record to show that respondent
could not relocate.” But an opinion weighing all relevant evidence would have
considered the badge evidence in evaluating Magana Perez’s knowledge of who
harmed him in 2009.
3
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relevant to the relocation analysis. See Vasquez-Rodriguez v. Garland, 7 F.4th
888, 899 (9th Cir. 2021); Diaz-Reynoso v. Barr, 968 F.3d 1070, 1089 (9th Cir.
2020); cf. Edu v. Holder, 624 F.3d 1137, 1146 (9th Cir. 2010) (“[W]hen a nation’s
government is itself persecuting its citizens, [i]t has never been thought that there
are safe places within [that] nation.” (internal quotation marks and citation
omitted)). The majority concludes that this analysis “flips our [substantial
evidence] standard of review on its head,” yet “we have repeatedly reversed
where the agency has failed” “to consider ‘all evidence relevant to the possibility
of future torture.’” Parada v. Sessions, 902 F.3d 901, 915 (9th Cir. 2018)
(quoting 8 C.F.R. § 1208.16(c)(3)).
While I agree with the majority that Maldonado overruled the presumption
of nationwide harm in the CAT context, 2 that court also made clear that a
petitioner’s overall burden of proof does not foreclose relief where an agency has
failed to consider all relevant evidence. There is no “burden on an applicant to
demonstrate that relocation within the proposed country of removal is impossible
because the IJ must consider all relevant evidence; no one factor is
determinative.” Maldonado v. Lynch, 786 F.3d 1155, 1163–64 (9th Cir. 2015)
(en banc) (citations omitted) (emphasis added); see also Tzompantzi-Salazar v.
2
Edu v. Holder, supra, cited by the majority, remains good law for the
proposition that official involvement in torture is relevant in evaluating a
petitioner’s possible relocation. 624 F.3d at 1146. Edu was a CAT case,
acknowledged “the burden . . . upon the alien,” and cited to the presumption in
asylum cases as support that “there [was] danger to political activists throughout”
the petitioner’s country. Id. at 1147.
4
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Garland, 32 F.4th 696, 705 (9th Cir. 2022) (also quoting “all relevant evidence”).
Moreover, the majority states that without a presumption in the petitioner’s favor,
the omitted evidence must “compel the conclusion that the attackers would be
likely to pursue Magana Perez should he relocate in Mexico.” The majority’s
analysis maintains that “[t]he notion that a certain piece of evidence merely ‘may’
or ‘could’ establish a finding defeats the assertion that this evidence is either
highly probative or potentially dispositive.” But that standard sets too high a
threshold; our cases have remanded for consideration of omitted evidence without
concluding that the evidence would compel a contrary finding. See, e.g., Parada,
902 F.3d at 914–16 (concluding that “the IJ did not properly consider all of the
relevant evidence before him,” without mentioning the substantial evidence
standard, and “remand[ing] to the agency for further consideration”); see also,
e.g., Cole, 659 F.3d at 771; Aguilar-Ramos, 594 F.3d at 705.3
To be clear, I would not hold at this time that the badge evidence
definitively demonstrates police involvement in Magana Perez’s torture or the
likelihood of future torture; “[s]uch an argument is premature[,] [b]ecause the
[agency] failed to consider” the badge evidence “at all.” Aguilar-Ramos, 594
F.3d at 705. But I would hold that the badge was sufficiently “probative or
3
The majority does not address these cases and instead cites Sharma v. Garland,
9 F.4th 1052 (9th Cir. 2021), to suggest that the omitted evidence must compel a
contrary finding to warrant remand. But the Sharma petitioner did not argue that
the agency had omitted relevant evidence in denying CAT relief, and apart from
a recitation of the substantial evidence standard with which I agree, that case did
not discuss the issue of considering all relevant evidence. See id. at 1066–67.
5
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potentially dispositive evidence” to warrant remand. 4 Cole, 649 F.3d at 772.
Consideration of the badge could have made a difference in the ultimate success
of Magana Perez’s CAT claim. The BIA was not free to consider an incomplete
version of Magana Perez’s argument, if it was considered at all,5 that the IJ failed
to “consider the direct involvement with local authorities.” See Sagayak v.
Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005). Moreover, the badge evidence
could further establish the relevance of country conditions evidence describing
the extent of Mexican police involvement—across federal, state, and local
levels—in unlawful detainment, torture, and organized crime activities.6 I would,
4
The IJ stated that she considered “all evidence submitted on the record,” even if
the evidence was “not described with particularity” in the decision. But “a
catchall phrase does not suffice” if the agency “fail[ed] to mention highly
probative or dispositive evidence.” Cole, 659 F.3d at 771–72.
5
It is unclear whether the agency even considered police involvement (premised
solely on temporal proximity) in denying the CAT claim. Neither the BIA nor
the IJ discussed the possibility of police involvement in the sections denying CAT
relief. See also supra note 1. Moreover, the BIA did not address Magana Perez’s
argument on appeal specifically but simply found no clear error in the IJ’s factual
findings.
6
The IJ mentioned the “high levels of crime and violence in various areas of
Mexico as demonstrated by the country conditions report” and determined that
“he would [not] be personally targeted by any individuals upon return,” but once
again failed to mention any police-specific evidence. See also Vasquez-
Rodriguez, 7 F.4th at 899 (remanding in part because the agency reasoned that
country conditions evidence had shown “the police and organized crime groups
can be dangerous in certain parts of the country” but nonetheless “identified no
evidence suggesting that [the petitioner] could safely relocate”).
6
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therefore, grant the petition in part and remand to the agency to reconsider
Magana Perez’s CAT claim in light of the badge evidence. 7
For the foregoing reasons, I respectfully concur in part and dissent in part.
7
The agency made a number of other findings that counseled against CAT relief:
Magana Perez was clear that the attackers were associated with a gang no longer
in power, and similarly situated family members continued to live in Mexico
without facing any physical harm. The majority reinforces its holding with these
facts. But these findings should not foreclose remand. Weighing all of the
evidence relevant to relocation against unconsidered evidence in the first instance
is a job for the agency, not this court. See Aguilar-Ramos, 594 F.3d at 705.
Limited review of other record evidence may be appropriate when determining
whether omitted evidence qualifies as “highly probative or potentially dispositive
evidence.” Hernandez, 52 F.4th at 770. The inquiry in Hernandez was cabined
to reviewing the nature of the evidence itself or closely related evidence: the
allegedly unconsidered evidence was found to be duplicative, unspecific to the
petitioner, cast in doubt by subsequent testimony, or ultimately irrelevant to
future torture entirely. See id. at 771–72. But Hernandez does not advise us to
cast a broad net over the body of evidence relevant to Magana Perez’s CAT claim.
Moreover, the court concluded that the “agency did not misstate or ignore
Hernandez’s evidence; it simply reached a different conclusion.” Id. at 772. Yet
we have indication here that the agency here “ignore[d]” the evidence and drew
no conclusion at all.
7