Vasquez-Rodriguez v. Garland

• Decision Date: 05 August 2021
• Docket Number: No. 19-71445,19-71445
• Citation: 7 F.4th 888
• Parties: Jonny Savier VASQUEZ-RODRIGUEZ, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

7 F.4th 888

Jonny Savier VASQUEZ-RODRIGUEZ, Petitioner,

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

No. 19-71445

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 10, 2020 San Francisco, California

Filed August 5, 2021

Nienke Schouten (argued), Law Office of Nienke Schouten, Pinole, California, for Petitioner.

Nehal Kamani (argued), Attorney; Holly M. Smith, Senior Litigation Counsel; Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: Eric D. Miller and Danielle J. Forrest,^* Circuit Judges, and Douglas L. Rayes,^** District Judge.

MILLER, Circuit Judge:

Jonny Vasquez-Rodriguez has repeatedly left El Salvador, illegally entered the United States, and been removed to El Salvador. Having once again entered the United States, he applied for withholding of removal and protection under the Convention Against Torture. The immigration judge denied relief, and the Board of Immigration Appeals dismissed his appeal. The agency did not consider whether Vasquez-Rodriguez was eligible for withholding of removal on account of his membership in the particular social group of people erroneously believed to be gang members. Although Vasquez-Rodriguez did not present that claim to the agency, we conclude that we may consider it now because presenting it to the agency would have been futile. We also conclude that the agency failed to consider certain evidence in the record showing that it is more likely than not that Vasquez-Rodriguez would be tortured if removed to El Salvador. We therefore grant the petition for review and remand.

I

Vasquez-Rodriguez was born in El Salvador and resided there until 2004, when he unlawfully entered the United States with his mother and siblings. In 2008, he was removed to El Salvador. The next year, he returned to the United States and was again removed.

According to Vasquez-Rodriguez, he lived with his uncle in San Vicente, El Salvador, where the local police harassed and beat him because he has several tattoos and the officers mistakenly believed him to be a gang member. Then, his uncle ran for mayor, and Vasquez-Rodriguez volunteered with the campaign. Vasquez-Rodriguez says that the incumbent mayor, and a handful of officers who were loyal to her, retaliated against him. They targeted him, rather than his uncle, because his uncle was well liked within the community. They beat Vasquez-Rodriguez and falsely accused him of marijuana possession, an offense to which he pleaded guilty so he could get out of jail. But officers continued to target him for harassment and violence. Eventually, he reported the officers to the police department and, when the department refused to help, to a human-rights organization. But the attacks continued, so he fled yet again to the United States.

In 2013, Vasquez-Rodriguez was removed to El Salvador a third time. He claims that the police detained him at the airport because, by leaving the country, he had violated the conditions of his release from jail on the marijuana conviction. He says that he was then turned over to San Vicente officers, only to be beaten and jailed once again. At one point, one of the officers raped him. He eventually went into hiding in the mountains, where he lived for almost a year before escaping to the United States.

In 2018, Vasquez-Rodriguez pleaded guilty to misdemeanor domestic battery in California state court, and his earlier removal order was reinstated under 8 U.S.C. § 1231(a)(5). Vasquez-Rodriguez expressed a fear of persecution in El Salvador on the basis of his political opinion, and an asylum officer referred him for withholding-only proceedings after determining that he was not eligible for asylum. Vasquez-Rodriguez filed applications for withholding of removal and for relief under the Convention Against Torture (CAT).

The immigration judge found Vasquez-Rodriguez not credible and denied both applications. The immigration judge also found that, even assuming his credibility, Vasquez-Rodriguez was not eligible for withholding of removal because he did not show that he had been persecuted or establish a well-founded fear of future persecution on account of any statutorily protected ground. And the immigration judge found that Vasquez-Rodriguez was ineligible for CAT relief because he could safely relocate to another part of El Salvador.

The Board assumed that Vasquez-Rodriguez was credible but affirmed the immigration judge's other findings and dismissed Vasquez-Rodriguez's appeal.

II

The Attorney General must withhold removal of an alien to a country if "the alien's life or freedom would be threatened in that country because of the alien's ... membership in a particular social group, or political opinion." 8 U.S.C. § 1231(b)(3)(A). Vasquez-Rodriguez argues that he is entitled to withholding of removal because he faces persecution on account of his political opinion and on account of his membership in the particular social group of people erroneously believed to be members of gangs. We begin by considering the political-opinion claim.

To qualify for withholding of removal, an applicant must show that "it is more likely than not that" he would be persecuted because of a protected ground. INS v. Stevic , 467 U.S. 407, 424, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984). The applicant need not demonstrate that the protected ground is a central reason for his persecution; it is enough for it to be "a reason." Barajas-Romero v. Lynch , 846 F.3d 351, 360 (9th Cir. 2017) (quoting 8 U.S.C. § 1231(b)(3)(C) ). Here, the Board determined that Vasquez-Rodriguez "was targeted by the police because he was a suspected gang member, not because of his political (or imputed political) opinion." Because "[a] persecutor's actual motive is a matter of fact," we review that finding for substantial evidence. Matter of N-M- , 25 I. & N. Dec. 526, 532 (B.I.A. 2011) ; see also Regalado-Escobar v. Holder , 717 F.3d 724, 726–27 (9th Cir. 2013). We conclude that substantial evidence supports the Board's determination.

In his declaration, Vasquez-Rodriguez stated that the officers initially targeted him because he had his own credit card, because "they didn't like the way [he] answered ... their questions," and because he had tattoos. That statement is consistent with his other documentary submissions, including his aunt's statement that Vasquez-Rodriguez was accused "of being a member of a gang because of his tattoos." It is also consistent with his earlier statements. For example, when Vasquez-Rodriguez reported the abusive officers to a human-rights organization, he did not mention his uncle's campaign, the mayor, or any other political motivation for the officers’ attacks. Instead, he reported that the police "ask[ed] him about his belonging to gangs" and "express[ed] that he has tattoos."

In challenging the agency's finding, Vasquez-Rodriguez relies on his own testimony and his family members’ letters of support stating that the mayor targeted him at least in part because of his involvement in his uncle's political campaign. But Vasquez-Rodriguez's testimony casts doubt on whether the mayor's actions were motivated by politics rather than by her suspicion that he was a gang member "because [he] ha[s] tattoos," by his involvement in criminal activity, or perhaps by her belief that he "was disrespecting her." Thus, although the Board assumed Vasquez-Rodriguez to be credible, his ambiguous testimony does not compel the conclusion that his political opinion was a reason for his persecution. See Garland v. Ming Dai , ––– U.S. ––––, 141 S. Ct. 1669, 1680, ––– L.Ed.2d –––– (2021) ("[E]ven if the [Board] treats an alien's evidence as credible, the agency need not find his evidence persuasive or sufficient to meet the burden of proof."); Singh v. Holder , 753 F.3d 826, 836 (9th Cir. 2014). Because the record does not compel a conclusion contrary to that reached by the agency, we uphold the agency's determination that Vasquez-Rodriguez did not establish eligibility for withholding of removal on this ground. See 8 U.S.C. § 1252(b)(4)(B) ; Ming Dai , 141 S. Ct. at 1678.

III

Vasquez-Rodriguez also argues that he is eligible for withholding of removal because he faces persecution on account of his membership in the particular social group of persons erroneously believed to be gang members. He admits that he did not exhaust that claim by presenting it to the agency, but he maintains that we may consider it now because raising it before the agency would have been futile. We conclude that the exhaustion requirement contains an exception for cases in which exhaustion would be futile, that the futility exception is satisfied here, and that the agency's treatment of claims of persecution based on imputed gang membership is legally flawed.

A

We begin by examining the exhaustion requirement and its futility exception. Congress has authorized us to review "a final order of removal only if ... the alien has exhausted all administrative remedies available to the alien as of right." 8 U.S.C. § 1252(d)(1). On its face, that provision appears to require only that the alien exhaust available remedies—that is, procedures for challenging an adverse decision. Nevertheless, we have held that the statute also requires issue exhaustion, or, in other words, that it permits us to consider only those issues that the petitioner properly raised before the agency. Juarez Alvarado v. Holder , 759 F.3d 1121, 1127 n.5 (9th Cir. 2014) ; accord Barron v. Ashcroft , 358 F.3d 674, 677–78 (9th Cir. 2004) ; see Sims v. Apfel , 530 U.S. 103, 106–07, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000) (distinguishing between exhaustion of remedies and issue exhaustion). On this point, our interpretation of section 1252(d)(1) is consistent with that of the other courts of appeals. See Perez Batres v. Lynch , 796 F.3d 157, 159–60 (1st Cir. 2015) ; Lin Zhong v. United States Dep't of Just. , 480 F.3d 104, 122 (2d Cir. 2007) ; Bin Lin v. Attorney Gen. , 543 F.3d...