Molina v. Garland
| Decision Date | 13 June 2022 |
| Docket Number | s. 19-73028,20-71774 |
| Parties | Mario Rajib FLORES MOLINA, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Mary-Christine Sungaila (argued) and Joshua R. Ostrer, Buchalter APC, Irvine, California; Paula M. Mitchell, Attorney; Tina Kuang (argued) and Natalie Kalbakian (argued), Certified Law Students, Loyola Law School, Los Angeles, California; for Petitioners.
Jeffrey R. Leist (argued), Senior Litigation Counsel; Anthony C. Payne, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
Before: Richard A. Paez and Lawrence VanDyke, Circuit Judges, and Edward R. Korman,* District Judge.
Opinion by Judge Paez ;
Petitioner Mario Rajib Flores Molina ("Flores Molina") participated in demonstrations against the ruling regime in his native Nicaragua, where he witnessed the murder of his friend and fellow protester by police and paramilitary members. Thereafter, he was publicly marked as a terrorist, threatened with torture and death by government operatives, and forced to flee his home. Flores Molina, however, was tracked down at his hideaway by armed paramilitary members, and was forced to flee for his life a second time. Flores Molina still was not safe. He was discovered, yet again, assaulted, and threatened with death by a government-aligned group. Flores Molina ultimately fled a third time—from Nicaragua altogether—out of fear for his safety. He eventually presented himself to authorities at the United States border and sought asylum and other relief.
When Flores Molina sought asylum, withholding of removal and protection under the Convention Against Torture ("CAT"), an Immigration Judge ("IJ") and the Board of Immigration Appeals ("BIA") determined that his past experiences in Nicaragua did not rise to the level of persecution. They also determined that Flores Molina did not establish a well-founded fear of future persecution. The IJ and BIA denied all forms of relief and ordered Flores Molina's removal to Nicaragua. Flores Molina petitions for review of the BIA's denial of his appeal of the IJ's decision, as well as of the BIA's subsequent denial of his motion to reopen proceedings. Because the record compels a finding that Flores Molina's past experiences constitute persecution and because the BIA erred in its analysis of the other issues, we grant the first petition and remand for further proceedings. Accordingly, we dismiss the second petition as moot.
The Sandinista National Liberation Front or "Frente Sandinista de Liberación Nacional" ("FSLN") regained control of the Nicaraguan government in 2007 under Daniel Ortega. The FSLN maintains power in part through Citizen Power Councils ("CPCs"), FSLN party-based grassroots organizations that operate in neighborhoods and districts across Nicaragua. The CPCs function as intelligence-gathering entities for the Nicaraguan government. They also assist the government in suppressing dissent. CPCs and police work with paramilitary groups associated with the Sandinista Party to target the homes of protesters. In recent years, they have abducted and detained protesters, and raided homes of suspected protesters across Nicaragua.
In April 2018, political opposition groups, university students and farmers organized protests against pension reform and government corruption. The protests developed into a wider movement in opposition to the Ortega regime, which was met with violent suppression by the FSLN, CPCs, police and paramilitary groups. Shortly after the commencement of the protest movement, the Nicaraguan parliament passed a law enabling the Ortega regime to prosecute protesters as terrorists, and to impose harsh penalties. The Guardian reported that between April and July 2018, it was estimated that over 300 protesters were killed by the police and government operatives.
Flores Molina is a graduate of the Autonomous National University of Nicaragua, married, and the father of two children. He has been an active member of the opposition Liberal Party since 2006. In April 2018, Flores Molina began to participate in the opposition protest movement in the city of Estelí. At the second protest he attended that month, police and paramilitary personnel shot bullets into the crowd of demonstrators. As he fled the shooting, Flores Molina learned that his friend, and fellow demonstrator, Franco Valdivia, had been shot in the head. Flores Molina stopped, turned around, and tended to Valdivia as he lay in a pool of his own blood, before Valdivia ultimately died of his injuries.
Flores Molina participated in protests in Estelí throughout May 2018, as police and paramilitary members regularly shot at, wounded and killed demonstrators. As Flores Molina's presence at the protests continued, he received escalating threats on his life from government operatives and paramilitary members.
Government operatives publicly circulated posts on social media identifying Flores Molina as an instigator of hate and violence and threatened to send him to "El Chipote" prison, notorious as a site for torture. Flores Molina continued to receive threats over WhatsApp and was aware of at least five public posts on Facebook that were widely circulated identifying him as a dangerous opponent of the government. The public posts galvanized Ortega supporters to locate and drive to Flores Molina's home and verbally threaten him. Then, in June, Flores Molina found his home vandalized, with the words "Bullets to Strikers" spray painted on the walls by a group of masked individuals who arrived in an unmarked truck commonly known as the type of vehicle used by government operatives.
The escalating digital and verbal threats, the death threat painted on his house, and the increasing number of killings of protesters by the Ortega regime forced Flores Molina to flee his home for safety. But five months after Flores Molina fled to a hideaway, a truck full of police officers and paramilitary members arrived at his refuge wearing ski masks, army jackets and carrying assault rifles. The paramilitary squad demanded that Flores Molina come out, climbed on the roof, and looked through the windows. Flores Molina hid in the backyard to evade detection; immediately after, he fled, for the second time, to a new hideaway.
On November 20, 2018, six masked members of the pro-Ortega Sandinista Youth assaulted Flores Molina as he returned to his second hideaway. They struck him in the head, causing him to lose a tooth and leaving scarring on his lip. As they beat him, the attackers warned Flores Molina, Flores Molina could not see a doctor because the hospital entrance was full of police and the paramilitary members. The United States Department of State Country Report on Human Rights Practices in Nicaragua for 2018 ("2018 State Department Report") shows that the Ortega regime directed the Ministry of Health to deprive protesters of medical attention and instructed public hospitals and clinics not to provide medical care to wounded protesters.
Flores Molina fled Nicaragua and ultimately arrived at the United States-Mexico border. He presented himself at a port of entry and requested protection.
Flores Molina appeared pro se and testified before an IJ on June 10, 2019, where he requested asylum, withholding of removal and protection under CAT. At the hearing, Flores Molina and the Department of Homeland Security submitted, as exhibits, news articles and country conditions reports on Nicaragua and the 2018 protest movement. The IJ found Flores Molina's testimony consistent with the declaration he submitted in support of his application for relief, but determined that he had not shown that his past experiences constituted persecution for the purposes of asylum and withholding of removal. The IJ also held that, because Flores Molina failed to show past persecution, he had not demonstrated a well-founded fear of future persecution. The IJ denied Flores Molina's application for asylum, withholding of removal and CAT protection.
In November 2019, the BIA dismissed Flores Molina's appeal, finding that "[t]he claimed past harm, cumulatively considered, [did] not rise to the level of past persecution" and that the "threats are not the sort of ‘extreme’ or ‘especially menacing’ threats necessary to establish past persecution." The BIA also concluded that Flores Molina lacked an objectively well-founded fear of future persecution because he was physically assaulted only once, and because the number of political activists detained in Nicaragua is small compared to the number of individuals who participated in the protest movement. As for CAT relief, the BIA determined that the past harm Flores Molina experienced did not rise to the level of torture and that the risk he would be tortured upon removal to Nicaragua was too speculative to merit relief. The BIA affirmed the IJ's denial of asylum, withholding of removal and CAT protection.
In June 2020, the BIA denied Flores Molina's motion to reopen his removal proceedings to seek a continuance while the United States Citizenship and Immigration Services ("USCIS") adjudicated his pending application for an immigrant visa.
Flores Molina timely petitioned for review of the BIA's denial of asylum, withholding of removal and CAT protection (No. 19-73028), and the BIA's denial of his motion to reopen (No. 20-71774). We address both petitions.
"Where the BIA conducts its own review of...
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