Salguero Sosa v. Garland

• Decision Date: 16 December 2022
• Docket Number: 19-70961
• Citation: 55 F.4th 1213
• Parties: Nery Adeli SALGUERO SOSA, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

55 F.4th 1213

Nery Adeli SALGUERO SOSA, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 19-70961

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 17, 2022 San Francisco, California

Filed December 16, 2022

Sylvia L. Esparza (argued), Law Office of Sylvia L. Esparza, Las Vegas, Nevada, for Petitioner.

Stephen P. Finn (argued), Senior Trial Attorney; Mary J. Candaux, Assistant Director; Brian M. Boynton, Principal Deputy Assistant Attorney General; United States Department of Justice, Civil Division; Washington, D.C.; for Respondent.

Before: SIDNEY R. THOMAS and MILAN D. SMITH, JR., Circuit Judges, and GEORGE H. WU,^* District Judge.

Opinion by Judge Milan D. Smith, Jr. ;

Partial Concurrence by Judge Wu

M. SMITH, Circuit Judge:

Nery Adeli Salguero Sosa, a citizen of Guatemala who suffers from dwarfism

and who advocated in Guatemala for increased legal protections for dwarfs, petitions our court to review the Board of Immigration Appeals' decision denying him asylum, withholding of removal, and Convention Against Torture (CAT) relief. We grant the petition in part, deny in part, and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Salguero Sosa is a native and citizen of Guatemala. He lawfully entered the United States but overstayed his nonimmigrant visa. When charged as removable pursuant to 8 U.S.C. § 1227(a)(1)(B), he conceded removability and applied for asylum, withholding of removal, and CAT relief.

Before the Immigration Judge (IJ) and Board of Immigration Appeals (BIA), Salguero Sosa contended—in support of his asylum and withholding of removal claims—that he suffered past persecution and would suffer future persecution on account of his political opinion and his membership in two particular social groups (PSGs): dwarfs in Guatemala and human rights defenders in Guatemala. Though Salguero Sosa primarily relied on showing past persecution (and the rebuttable presumption it triggers), he alternatively argued that he could show future persecution because his two alleged PSGs are also disfavored groups—a related but separate showing. In asserting his CAT claim, Salguero Sosa did not argue that he suffered past torture and instead argued only that it was more likely than not that he would be tortured with the acquiescence of the government if he were removed to Guatemala.

I. Salguero Sosa's Alleged Past Persecution

In presenting his asylum and withholding of removal claims, Salguero Sosa testified about several categories of mistreatment that he contends amounted to past persecution, namely: (1) educational mistreatment by his father, peers, and teachers; (2) employment barriers, including discriminatory hiring practices, denial of raises and career-advancement opportunities, and derogatory comments made by his superiors; (3) several assaults and robberies, including one in which he was "brutally" beaten at gunpoint; (4) death threats from anonymous callers; (5) social mistreatment, including his then-girlfriend's family forcing her to have an abortion because they did not want her to risk having a dwarf child; and (6) his and his brother's treatment at a state-run hospital where his brother, who was also a dwarf, died due to what Salguero Sosa contends was inadequate medical care.

II. BIA Proceedings

Salguero Sosa's petition for review comes to us with an extended procedural history, wherein both the IJ and BIA have each issued two prior decisions. Collectively, those decisions denied Salguero Sosa's application for asylum, withholding of removal, and CAT relief.

The BIA denied Petitioner asylum because it determined that he did not suffer harm that rose to the level of past persecution and that, in any event, his political opinion was not "at least one central reason" for any past persecution. It also held that Salguero Sosa did not have a well-founded fear of future persecution because he was not a member of a disfavored group. The BIA rejected Petitioner's withholding of removal claim on the view that since his asylum claim was denied, his withholding of removal claim necessarily failed. The BIA denied Petitioner's CAT claim, determining that Salguero Sosa failed to establish that the government would acquiesce in any torture to which he would be subjected if removed to Guatemala. Salguero Sosa timely filed a petition for review before this court.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 8 U.S.C. § 1252. Where the BIA affirms the IJ "and also adds its own reasoning, we review the decision of the BIA and those parts of the IJ's decision upon which it relies." Duran-Rodriguez v. Barr , 918 F.3d 1025, 1027–28 (9th Cir. 2019). We review legal questions de novo. See, e.g., Mendoza-Garcia v. Garland , 36 F.4th 989, 993 (9th Cir. 2022). And we review the factual determinations underlying denials of CAT relief for substantial evidence. See, e.g., Nasrallah v. Barr , ––– U.S. ––––, 140 S. Ct. 1683, 1692, 207 L.Ed.2d 111 (2020). Under that "highly deferential" standard, we must accept the BIA's factual findings as "conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." Id. (quoting 8 U.S.C. § 1252(b)(4)(B) ).

ANALYSIS

I. Asylum

Salguero Sosa challenges the BIA's denial of asylum on the grounds that the BIA erred by (1) failing to conduct cumulative-effect review when assessing past persecution; (2) concluding that his alleged persecution lacked a nexus to his political opinion; and (3) concluding that he was not a member of a disfavored group when assessing whether he would experience future persecution. We agree with Salguero Sosa's first argument, grant the petition for review as to asylum, and remand for further proceedings consistent with this opinion.

A. Cumulative-Effect Review

The BIA erred by failing to conduct cumulative-effect review when assessing Salguero Sosa's evidence of past persecution. To be eligible for asylum, a petitioner must demonstrate a "well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." Sharma v. Garland , 9 F.4th 1052, 1059 (9th Cir. 2021) (quoting 8 U.S.C. § 1101(a)(42)(A) ). A petitioner can satisfy this burden by showing past persecution, which gives rise to a rebuttable presumption of future persecution. Id. at 1060 ; see 8 C.F.R. § 208.13(b)(1).

We have previously held that when determining whether a petitioner's past mistreatment rises to the level of persecution, the BIA must apply cumulative-effect review. See, e.g., Sharma , 9 F.4th at 1061 ("The key question is whether, looking at the cumulative effect of all the incidents that a petitioner has suffered, the treatment he received rises to the level of persecution." (cleaned up)); Ahmed v. Keisler , 504 F.3d 1183, 1194 (9th Cir. 2007) ("Where an asylum applicant suffers [physical harm and threats] on more than one occasion ..., the cumulative effect of the harms is severe enough that no reasonable fact-finder could conclude that it did not rise to the level of persecution."); Krotova v. Gonzales , 416 F.3d 1080, 1087 (9th Cir. 2005) ("The combination of sustained economic pressure, physical violence and threats ..., and the restrictions on Petitioner's ability to practice her religion cumulatively amount to persecution."); Korablina v. INS , 158 F.3d 1038, 1044 (9th Cir. 1998) ("Persecution may be found by cumulative, specific instances of violence and harassment toward an individual and her family members ....").

Cumulative-effect review is essential where "[a] single isolated incident may not rise to the level of persecution, but the cumulative effect of several incidents may constitute persecution." Korablina , 158 F.3d at 1044 (cleaned up) (emphasis added) (quoting Singh v. INS , 94 F.3d 1353, 1358 (9th Cir. 1996) ). Two of our decisions illustrate this principle.

The first is Korablina. There, the IJ found that Korablina, a Jewish Ukrainian woman, had suffered a "serious [form] of discrimination" but "her numerous experiences did not amount to persecution." Id. Korablina's past-persecution showing was based on suffering one physical attack; observing her boss (who was also Jewish) be severely beaten and eventually "disappeared"; receiving threatening phone calls; and having her workplace ransacked. Id. at 1044–45. After stating the above legal rule, we declined to decide whether any of Korablina's experiences individually amounted to persecution. Instead, we held that the BIA's denial of relief lacked substantial evidence because "[c]umulatively , the experiences suffered by Korablina compel the conclusion that she suffered persecution." Id. at 1045 (emphasis added).

The second is Guo v. Sessions , 897 F.3d 1208 (9th Cir. 2018). There, a Christian Chinese citizen contended that he had suffered past persecution. Id. at 1213. Specifically, Guo testified about a police beating; a short detention; and a requirement that he report to the police each week. Id. at 1211. As in Korablina , we concluded that we "need not decide whether Petitioner's beating alone amounted to persecution because his asylum claim is also premised on his release conditions" and, when we "consider[ed] the record as a whole ," a finding of persecution was compelled. Id. at 1215–17 (emphasis added).

The government argues that these cases do not establish a legal rule requiring cumulative-effect review. In the government's view, Korablina and Guo are simply substantial-evidence-review decisions in which we determined, on the basis of the whole record, that any reasonable factfinder would be compelled to disagree with the BIA. We reject the government's limited, fact-bound reading of these decisions for two reasons.

First, the structure of Korablina and Guo undermines the government's reading. Korablina , for instance, took a textbook rule-application-conclusion approach to the issue of whether the petitioner had suffered past persecution. We first described the...