NERY SALGUERO SOSA V. MERRICK GARLAND, No. 19-70961 (9th Cir. 2022)
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Petitioner 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’ (BIA) decision denying him asylum, withholding of removal, and Convention Against Torture (CAT) relief.
The Ninth Circuit granted in part and denied in part Petitioner’s petition for review of the BIA’s decision upholding an immigration judge’s denial of asylum, withholding of removal, and protection under the CAT and remanded. The panel concluded that it is evident from the record that the BIA failed to conduct a cumulative-effect review. The panel explained that the IJ analyzed each category of past harm in isolation and found that none individually rose to the level of persecution. In addition, the BIA failed to acknowledge Petitioner’s request for cumulative-effect review, and the BIA’s analysis did not demonstrate that it took a cumulative look at the various instances of harm Petitioner asserted. Instead, the BIA followed in the IJ’s footsteps, ticking off each of Petitioner’s categories of harm on an individual basis and finding that each amounted only to discrimination. The panel remanded for the agency to apply the correct legal framework to Petitioner’s asylum claim.
The panel held that the BIA also erred by applying asylum’s heightened “at least one central reason” nexus requirement to Petitioner’s withholding of removal claim, rather than the correct “a reason” standard. Finally, the panel concluded that substantial evidence supported the BIA’s conclusion that the Guatemalan government would not acquiesce in any torture Petitioner might suffer
Court Description: Immigration The panel granted in part and denied in part Nery Adeli Salguero Sosa’s petition for review of a decision of the Board of Immigration Appeals upholding an immigration judge’s denial of asylum, withholding of removal, and protection under the Convention Against Torture, and remanded for further proceedings. The panel concluded that the BIA erred by failing to conduct cumulative-effect review when assessing Salguero Sosa’s evidence of past persecution. The panel explained that Korablina v. INS, 158 F.3d 1038 (9th Cir. 1998), and Guo v. Sessions, 897 F.3d 1208 (9th Cir. 2018), held that when determining whether a petitioner’s past mistreatment rises to the level of persecution, the BIA must apply cumulative-effect review. The panel wrote that 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. The panel rejected the government’s view that Korablina and Guo were simply substantial-evidence-review decisions in which the court determined, on the basis of the whole record, that any reasonable factfinder would be compelled to disagree with the BIA. Rather, the panel explained that the agency’s purported failure to conduct cumulative-effect review is a legal issue that this court reviews de novo. SALGUERO V. GARLAND 3 The panel concluded that it is evident from the record that the BIA failed to conduct a cumulative-effect review. The panel explained that the IJ analyzed each category of past harm in isolation and found that none individually rose to the level of persecution. In addition, the BIA failed to acknowledge Salguero Sosa’s request for cumulative-effect review, and the BIA’s analysis did not demonstrate that it took a cumulative look at the various instances of harm Salguero Sosa asserted. Instead, the BIA followed in the IJ’s footsteps, ticking off each of Salguero Sosa’s categories of harm on an individual basis and finding that each amounted only to discrimination. The panel remanded for the agency to apply the correct legal framework to Salguero Sosa’s asylum claim. Because withholding of removal, like asylum, requires a showing of future persecution and employs a past- persecution rebuttable presumption, the panel explained that its cumulative-effect holding applies to Salguero Sosa’s withholding of removal claim as well. The panel held that the BIA also erred by applying asylum’s heightened “at least one central reason” nexus requirement to Salguero Sosa’s withholding of removal claim, rather than the correct “a reason” standard. The panel therefore remanded for the BIA to apply the correct legal framework for evaluating the withholding of removal nexus requirement. Finally, the panel concluded that substantial evidence supported the BIA’s conclusion that the Guatemalan government would not acquiesce in any torture Salguero Sosa might suffer. The panel explained that although Salguero Sosa’s proffered evidence might suggest some government disregard or animus toward Salguero Sosa, in particular, or to individuals in his proposed social group generally, it did not meet the high bar of compelling the 4 SALGUERO SOSA V. GARLAND conclusion that the Guatemalan government would acquiesce in Salguero Sosa’s torture. Judge Wu concurred in the majority’s remand of Salguero Sosa’s withholding of removal claim, and its denial of the petition as to his CAT claim. However, Judge Wu did not join in the majority’s remand of Salguero Sosa’s asylum claim. Judge Wu disagreed that Circuit precedent already requires the BIA to conduct cumulative-error review, or that the failure to conduct such a review warrants remanding the matter back to the BIA. Judge Wu also pointed out that without some description as to the elements, factors, or steps of such an analysis, it is uncertain what that review would entail and how it is to be (or could be) conducted in the present case.
The court issued a subsequent related opinion or order on August 15, 2023.
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