Carmen Salazar-Velasquez v. Merrick Garland

FILED
NOT FOR PUBLICATION
MAR 9 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARMEN FRANCISCO SALAZAR- No. 17-70462
VELASQUEZ,
Agency No. A070-095-306
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 11, 2022**
Phoenix, Arizona
Before: MURGUIA, Chief Judge, GRABER, Circuit Judge, and L. BURNS,***
District Judge.
Concurrence by Judge BURNS.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Larry A. Burns, United States District Judge for the
Southern District of California, sitting by designation.
Petitioner Carmen Francisco Salazar-Velasquez, a native and citizen of
Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”)
denial of his applications for asylum and withholding of removal. He claims past
persecution and a well-founded fear of future persecution, on account of his
political opinion. The agency ruled that the harm suffered by Petitioner did not
rise to the level of past persecution. Reviewing for substantial evidence, Reyes v.
Lynch, 842 F.3d 1125, 1137 (9th Cir. 2016), we conclude that the record
“compel[s]” the contrary conclusion, 8 U.S.C. § 1252(b)(4)(B). Accordingly, we
grant the petition and remand for the BIA to reconsider, applying the presumption
that Petitioner has a well-founded fear of future persecution. 8 C.F.R.
§ 208.13(b)(1).
Petitioner belonged to and was a local officer (General Secretary) in a
political party, the UCN. Other UCN leaders were receiving death threats from
political rivals at the time. Heavily armed men came to one of the UCN’s
meetings, asked for Petitioner by his title, and demanded to know his name and
whereabouts. Although the men left when they did not obtain the information that
they sought, they returned a few weeks later, again bearing arms, and repeated the
same demand. This time, when their demand was not satisfied, they kidnapped and
severely beat one of Petitioner’s UCN associates to try to obtain Petitioner’s name,
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and they said that they would find and kill the UCN General Secretary. Shortly
thereafter, the same men learned Petitioner’s identity. They went to Petitioner’s
aunt’s house in a distant province, where he was hiding, and, while brandishing
firearms, threatened to kill Petitioner. He fled the country, but the threats to kidnap
and kill Petitioner and his family continued. The immigration judge expressly
found Petitioner to be credible.
Death threats alone can constitute persecution, depending on the degree of
harm inflicted. Canales-Vargas v. Gonzales, 441 F.3d 739, 743–44 (9th Cir.
2006). Here, Petitioner testified to intense fear and intimidation that he and family
members suffered. In cases similar to this one, we have concluded that a finding of
past persecution was compelled. See, e.g., Jahed v. INS, 356 F.3d 991, 998–99
(9th Cir. 2004) (so concluding where a political opponent threatened to extort the
petitioner in circumstances where imprisonment and death were likely to result
from noncompliance); Ruano v. Ashcroft, 301 F.3d 1155, 1159–60 (9th Cir. 2002)
(so concluding where the petitioner, an Assistant General Secretary for UCN,
received repeated and menacing death threats); Gonzales-Neyra v. INS, 122 F.3d
1293, 1295–96 (9th Cir. 1997) (so concluding where the petitioner received one
death threat and his family members were confronted and intimidated), as amended
on denial of reh’g, 133 F.3d 726 (9th. Cir. 1998). Death threats can constitute past
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persecution even when communicated to third parties and even when those making
the threats do not know the name of their target. See Mashiri v. Ashcroft, 383 F.3d
1112, 1120 (9th Cir. 2004) (concluding that a single “specific and menacing death
threat” was “strong evidence of persecution” despite the threat’s not naming the
petitioner or being communicated face-to-face), as amended (Nov. 2, 2004);
Salazar-Paucar v. INS, 281 F.3d 1069, 1071, 1074–75 (9th Cir. 2002) (concluding
that the evidence compelled finding of past persecution after the petitioner received
death threats through a third party). Moreover, harm to a petitioner’s close
relatives, friends, or associates is relevant to a finding of past persecution if the
harm is part of a pattern closely tied to the petitioner himself. Korablina v. INS,
158 F.3d 1038, 1043–44 (9th Cir. 1998). Those criteria are met here.
PETITION GRANTED; REMANDED.
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FILED
MAR 9 2022
BURNS, D.J., concurring. MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I agree that the record establishes Petitioner suffered past persecution. The
immigration judge therefore should have presumed that he maintains a well-
founded fear of future persecution. See 8 C.F.R. § 208.13(b)(1). But I write
separately to explain that, in my view, the record evidence is sufficient to rebut that
presumption.
An immigration judge may deny a petition for asylum despite evidence of
past persecution if the judge finds by a preponderance of the evidence that “[t]here
has been a fundamental change in circumstances such that the applicant no longer
has a well-founded fear of persecution in the applicant’s country of nationality.”
8 C.F.R. § 208.13. The record here contains ample evidence of such fundamental
change. First, the incidents that gave rise to Petitioner’s fear of persecution
occurred more than 30 years ago. Second, those incidents arose out of Petitioner’s
affiliation with a political party that isn’t influential anymore and commands little,
if any, public attention in modern day Guatemala. Third, Petitioner’s mother, two
brothers, aunt, and mother-in-law have all remained in Guatemala without being
harmed, threatened, or even contacted by the people who were looking for
Petitioner back in March 1991. These circumstances undercut the reasonableness
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of any claim that Petitioner faces a present threat of persecution in his home
country.
Remand is appropriate here because the immigration judge was bound to
presume that Petitioner’s past persecution gave rise to a well-founded fear of future
persecution. But the presumption is rebuttable, not conclusive. Petitioner’s past
persecutors (if they’re still around after three decades) have apparently lost interest
in him. That’s enough to rebut the presumption.
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