Sanchez v. Garland

• Docket Number: 20-71034
• Decision Date: 26 October 2023
• Parties: YAINE REYNA SANCHEZ, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

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YAINE REYNA SANCHEZ, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.

No. 20-71034

United States Court of Appeals, Ninth Circuit

October 26, 2023

NOT FOR PUBLICATION

Argued and Submitted September 21, 2023 San Francisco, California

On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A203-699-600

Before: GOULD, NGUYEN, and BENNETT, Circuit Judges.

MEMORANDUM ^[*]

Yaine Reyna Sanchez, a native and citizen of Cuba, petitions for review of a Board of Immigration Appeals ("BIA") decision dismissing her appeal from a decision by an immigration judge ("IJ") denying her applications for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). We grant the petition in part and deny it in part.

1. Reyna Sanchez properly exhausted her claims before the BIA. "[O]ur precedent is quite clear that claims addressed on the merits by the BIA are exhausted." Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 874 (9th Cir. 2008). The BIA addressed the merits of Reyna Sanchez's claims demonstrating that it was "on notice" of them and had an "adequate opportunity" to pass on them. Diaz-Jimenez v. Sessions, 902 F.3d 955, 959-60 (9th Cir. 2018).

2. We have jurisdiction under 8 U.S.C. § 1252(a)(1). Where, as here, the BIA adopts the IJ's decision and adds its own reasoning, we review both the BIA and IJ decisions. Duran-Rodriguez v. Barr, 918 F.3d 1025, 1027-28 (9th Cir. 2019). The BIA affirmed the IJ's denial of Reyna Sanchez's application for asylum because she did not establish: (1) she suffered harm rising to the level of persecution; and (2) a well-founded fear of future persecution on account of a protected ground (i.e., a showing of "nexus"). We review for substantial evidence both the past persecution and nexus determinations. Antonio v. Garland, 58 F.4th 1067, 1072 (9th Cir. 2023); Rodriguez-Zuniga v. Garland, 69 F.4th 1012 1018 (9th Cir. 2023). Under the substantial evidence standard, we must accept the agency's findings "unless any reasonable adjudicator would be compelled to conclude to the contrary." Antonio, 58 F.4th at 1072-73 (quoting Garland v. Dai, 141 S.Ct. 1669, 1677 (2021)).

3. Any reasonable adjudicator would be compelled to conclude that the harm Reyna Sanchez suffered constitutes past persecution. Reyna Sanchez credibly testified that the Cuban police beat her until she was unconscious, detained her for 24 hours, detained her again for 72 hours (this time denying her water), and made numerous threats of death and imprisonment.

We have held that beating someone until they are unconscious is "clearly sufficient" to show past persecution. Parada v. Sessions, 902 F.3d 901, 909 (9th Cir. 2018) (cleaned up). Deprivation of food or water contributes to a finding of past persecution. See Tarubac v. INS, 182 F.3d 1114, 1117, 1118 n.2 (9th Cir. 1999). When threats-and in particular, death threats-occur "in conjunction with other forms of abuse," this "require[s] a finding of past persecution." Smolniakova v. Gonzales, 422 F.3d 1037, 1049 (9th Cir. 2005); see also Aden v. Wilkinson, 989 F.3d 1073, 1082 (9th Cir. 2021) (holding that "physical harm plus something more, such as credible death threats" compels a finding of past persecution). The "key question is whether, looking at the cumulative effect of all the incidents that a Petitioner has suffered, the treatment [s]he received rises to the level of persecution." Sharma v. Garland, 9 F.4th 1052, 1061 (9th Cir. 2021) (emphasis added) (quoting Gormley v. Ashcroft, 364 F.3d 1172, 1176-77 (9th Cir. 2004)). We conclude that the BIA and IJ's conclusion that the cumulative harm Reyna Sanchez suffered does not rise to the level of past persecution is not supported by substantial evidence. See Mamouzian v. Ashcroft, 390 F.3d 1129, 1134 (9th Cir. 2004) (holding that "physical abuse . . . combined with other incidents, such as detention and threats," compels a finding of persecution).

4. Any reasonable adjudicator would also be compelled to conclude that the Cuban police persecuted Reyna Sanchez on account of her political opinion. A petitioner's credible testimony about a "persecutor's statements about motive is direct evidence that the applicant's political opinion motivated the persecution." Khudaverdyan v. Holder, 778 F.3d 1101, 1106-07 (9th Cir. 2015). Here, Cuban police officers made several statements supporting nexus: (1) three days after Reyna Sanchez was arrested, police officers came to her restaurant to fine her for being "against the government"; (2) when Reyna Sanchez was detained for a second time and denied water, the officers told her "this [is] what we have for traitors"; and (3) an officer told Reyna Sanchez that if she "did not change the way that [she] thought," she would be imprisoned for 15 or more years. See Singh v. Holder, 764 F.3d 1153, 1159-63 (9th Cir. 2014) (holding that petitioner's credible testimony that police officers called him a "traitor" and accused him of "working against the government" compelled a finding of nexus). The denial of the applications for asylum and withholding of removal cannot stand. The record compels the finding that Reyna Sanchez suffered past persecution.

The dissent erroneously "gives conclusive weight to any piece of testimony that cuts [in favor of] the agency's finding." Dai, 141 S.Ct. at 1678; see Dissent at 5. That is not the correct standard. We look at the full record to decide if a reasonable adjudicator could have found that there was no nexus between the severe harm suffered by Reyna Sanchez and her publicly expressed anti-Castro political opinion. De Leon Lopez v. Garland, 51 F.4th 992, 999 (9th Cir. 2022). The dissent reads the word "reasonable" out of the "reasonable adjudicator" standard for substantial evidence. Our determination that the basis for the IJ's factual findings is "insufficient or illogical," id. at 1000, does not amount to an improper "reweighing of the evidence," id. at 1012 (Collins, J., dissenting). See Dissent at 3-4. In determining the Cuban officers' motive, no reasonable fact finder could give more weight to Reyna Sanchez's isolated statement-which she later disavowed-than to powerful circumstantial evidence relevant to a nexus finding.^[1] See Garcia v. Wilkinson, 988 F.3d 1136, 1145 (9th Cir. 2021); Aden, 989 F.3d at 1084 ("The motive may also be inferred if the factual circumstances alone demonstrate 'no other logical reason for the persecution at issue.'" (quoting Navas v. INS, 217 F.3d 646, 657 (9th Cir. 2000))). Contrary to our precedent, the dissent discounts circumstantial evidence as being less probative of motive than a statement made not by the Cuban officers themselves, but by Reyna Sanchez. Dissent at 6-7. Moreover, even if the Cuban police beat Reyna Sanchez in part because she sold food without a permit, "it is well established that mixed motives do not negate a legitimate nexus to political opinion." Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir. 2010). The severe beating, multiple instances of prolonged detainment, and death threats Reyna Sanchez suffered cannot reasonably be explained by her prior sale of food without a permit given the timing of the persecution, her persecutor's statements, and the country conditions reported showing repression of anti-Castro sentiments.

5. We review for substantial evidence the BIA and IJ's determinations regarding CAT protection. Guo v. Sessions, 897 F.3d 1208, 1212 (9th Cir. 2018). "Torture" that evokes CAT protection is a concept "more severe than persecution." Id. at 1217 (quoting Nuru v. Gonzales, 404 F.3d 1207, 1224 (9th Cir. 2005)). We conclude that the record does not compel a finding of "torture" for CAT protection.^[2]Cf. e.g., Nguyen v. Holder, 763 F.3d 1022, 1031 (9th Cir. 2014) (finding that being beaten and left permanently disabled or being deprived of food and water to the point of watching a fellow prisoner starve to death constitutes torture).

6. Because Reyna Sanchez has demonstrated past persecution by government forces on account of her political opinion, she is entitled to a presumption of future persecution for her asylum and withholding of removal claims. Guo, 897 F.3d at 1217; 8 C.F.R. § 1208.16(b)(1). We grant the petition in part as to Reyna Sanchez's asylum and withholding of removal claims and remand this case to the BIA to determine in the first instance whether the government can rebut this presumption. We deny the petition in part as to Reyna Sanchez's CAT claim.

PETITION GRANTED IN PART AND DENIED IN PART.

BENNETT, Circuit Judge, dissenting in part:

We review "for substantial evidence the [agency's] determination that a petitioner has failed to establish eligibility for asylum." Sharma v. Garland, 9 F.4th 1052, 1060 (9th Cir. 2021). We must accept findings from the Agency "unless any reasonable adjudicator would be compelled to conclude to the contrary." Nasrallah v. Barr, 140 S.Ct. 1683, 1692 (2020) (quoting 8 U.S.C. § 1252(b)(4)(B)). Because the record would not compel a reasonable adjudicator to conclude that the harm Reyna Sanchez suffered was on account of her alleged political activity, I respectfully dissent, in part.^[1]

A petitioner seeking asylum must show that the persecution she endured was "on account of" a statutorily protected ground. Parussimova v. Mukasey, 555 F.3d 734, 738-39 (9th Cir. 2009). To meet this "nexus" requirement an applicant must show that the protected ground was "at least one central reason" why the applicant was persecuted. 8 U.S.C. § 1158(b)(1)(B)(i). "[A] motive is a 'central reason' if the persecutor would not have harmed the applicant if such motive did not exist." Parussimova, 555 F.3d at 741. In asylum cases, the "critical" issue is the persecutor's motive. ...