Jose Ramirez v. Merrick Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 10 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE LEONARDO RAMIREZ, No. 19-71960
Petitioner, Agency No. A099-531-493
v.
MEMORANDUM *
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 3, 2023
San Francisco, California
Before: McKEOWN, BYBEE, and FORREST, Circuit Judges.
Jose Leonardo Ramirez, a native and citizen of El Salvador, seeks review of
the Board of Immigration Appeals’ (“BIA”) decision dismissing his appeal of the
Immigration Judge’s (“IJ”) denial of asylum, withholding of removal, and protection
under the Convention Against Torture (“CAT”). We review de novo the BIA’s legal
conclusions, Parada v. Sessions, 902 F.3d 901, 908 (9th Cir. 2018), including
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
whether a “particular social group” is cognizable, Cordoba v. Barr, 962 F.3d 479,
482 (9th Cir. 2020). Factual findings are reviewed for substantial evidence. Parada,
902 F.3d at 908. To the extent that the BIA incorporated the IJ’s reasoning, we
review both decisions. Iman v. Barr, 972 F.3d 1058, 1064 (9th Cir. 2020). We have
jurisdiction under 8 U.S.C. § 1252, and we grant in part, deny in part, and remand.
Ramirez contends that the BIA erred in denying his applications for asylum
and withholding of removal because it improperly rejected his proposed particular
social group of “individuals erroneously perceived as gang members.” The IJ found
that the proposed group “ha[d] not been defined or delineated with particularity” and
lacked an “immutable characteristic” or a “showing that such a group is perceived
as such in the country of El Salvador.” The BIA offered a brief affirmation of the
IJ’s findings and conclusion on this issue, followed by a string of citations that
included Matter of E-A-G-, 24 I. & N. Dec. 591 (B.I.A. 2008).
The BIA’s cursory analysis and reliance on Matter of E-A-G- conflicts with
our recent decision in Vasquez-Rodriguez v. Garland, 7 F.4th 888, 897 (9th Cir.
2021). There, we overruled Matter of E-A-G- as inconsistent with the requisite
“case-by-case determination” of whether a particular society recognizes a proposed
group. Vasquez-Rodriguez, 7 F.4th at 897–98 (quoting Pirir-Boc v. Holder, 750
F.3d 1077, 1084 (9th Cir. 2014)). In Vasquez-Rodriguez’s appeal, the BIA erred by
conflating perceived with actual gang membership and by “adopt[ing] a legal rule
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categorically barring people erroneously perceived to be gang members from
recognition as a particular social group.” Id. Although the BIA did not have the
benefit of Vasquez-Rodriguez at the time it reviewed Ramirez’s appeal, its decision
replicated the same reversible error. Thus, we grant Ramirez’s petition for review
with respect to his asylum and withholding of removal claims and remand to the
agency to conduct an evidence-based, case-by-case determination of Ramirez’s
potential particular social groups consistent with Vasquez-Rodriguez. Accordingly,
we do not reach the issue of whether Ramirez established past or future persecution.
See Garcia v. Wilkinson, 988 F.3d 1136, 1143 (9th Cir. 2021).
Substantial evidence supports the BIA’s denial of Ramirez’s CAT claim. “To
be eligible for relief under CAT, an applicant bears the burden of establishing that
she will more likely than not be tortured with the consent or acquiescence of a public
official if removed to her native country.” Xochihua-Jaimes v. Barr, 962 F.3d 1175,
1183 (9th Cir. 2020). When, as here, “an applicant posits multiple theories for why
he would be tortured, the Agency should consider the aggregate risk posed by all
sources and grant CAT relief if the cumulative probability of torture is greater than
50 percent.” Velasquez-Samayoa v. Garland, 49 F.4th 1149, 1155 (9th Cir. 2022).
Ramirez argues that the BIA erred by failing to address all of the evidence in the
record and evaluate the risk of torture in the aggregate. But the BIA need not
“individually identify and discuss every piece of evidence,” Hernandez v. Garland,
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52 F.4th 757, 770 (9th Cir. 2022), since “we apply a ‘presumption that the BIA did
review the record,’” id. at 771 (quoting Fernandez v. Gonzales, 439 F.3d 592, 603
(9th Cir. 2006)). Nonetheless, the BIA did address Ramirez’s multiple grounds for
CAT relief. Ramirez has not overcome the required presumption or proffered
probative evidence that the violence that he fears would amount to torture. Nor has
Ramirez demonstrated that the IJ’s multi-factor analysis of his ability to relocate in
El Salvador was insufficient. Thus, we affirm the BIA’s denial of Ramirez’s CAT
claim.
PETITION FOR REVIEW GRANTED in part; DENIED in part; and
REMANDED.
Each party shall bear its own costs on this petition for review.
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