Rodriguez Tornes v. Garland, No. 19-71104 (9th Cir. 2021)
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The Ninth Circuit granted the petition for review of the BIA's decision reversing the IJ's grant of asylum and withholding of removal to petitioner. The panel held that it was compelled to conclude that petitioner established a nexus between her mistreatment and her feminist political opinion and the BIA necessarily concluded that she carried her burden to prove the other elements of her claims for asylum and withholding of removal.
The panel denied the government's motion to remand so that the BIA can consider Matter of A-B- II's effect on nexus, concluding that Matter of A-B- II did not change the standard for establishing nexus, at least in this circuit. The panel has repeatedly held that political opinions encompass more than electoral politics or formal political ideology or action. Like the Third Circuit, the panel had little doubt that feminism qualifies as a political opinion within the meaning of the relevant statutes. In this case, substantial evidence does not support the BIA's conclusion that the record lacks evidence of a nexus between petitioner's persecution and her feminist political opinion. Rather, the panel concluded that petitioner had an actual or imputed political opinion and she was persecuted because of that political opinion. Finally, the petition presented a recognized exception to the ordinary remand rule under I.N.S. v. Ventura, 537 U.S. 12 (2002) (per curiam). The panel remanded for the Attorney General to exercise his discretion in determining whether to grant petitioner asylum. If he does not grant asylum, petitioner shall receive withholding of removal.
Court Description: Immigration. The panel granted Maria Rodriguez Tornes’s petition for review of the Board of Immigration Appeals’ decision reversing an immigration judge’s grant of asylum and withholding of removal, and remanded, holding that the evidence compelled the conclusion that Rodriguez established a nexus between her mistreatment in Mexico and her feminist political opinion. The panel noted that under the Attorney General’s recent decision in Matter of A-B-, 28 I. & N. Dec. 199 (A.G. 2021) (“Matter of A-B- II”), in order to establish the requisite nexus for asylum relief, a protected ground (1) must be a but-for cause of the wrongdoer’s act; and (2) must play more than a minor role—in other words, it cannot be incidental or tangential to another reason for the act. The panel explained that this standard was substantively indistinguishable from this circuit’s precedent. The panel wrote that the fact that an unprotected ground, such as a personal dispute, also constitutes a central reason for persecution does not bar asylum. Rather, if a retributory motive exists alongside a protected motive, an applicant need show only that a protected ground is “one central reason” for his or her persecution. Observing that this court has held repeatedly that political opinions encompass more than electoral politics or formal ROGRIGUEZ TORNES V. GARLAND 3 political ideology or action, the panel wrote that it had little doubt that feminism qualifies as a political opinion within the meaning of the relevant statutes. The panel concluded that Rodriguez’s testimony concerning equality between the sexes, her work habits, and her insistence on autonomy compelled the conclusion that she has a feminist political opinion. The panel also held that the record compelled the conclusion that Rodriguez’s political opinion was at least one central reason for her past persecution. The panel explained that some of the worst acts of violence came immediately after Rodriguez asserted her rights as a woman, and that the fact that some incidents of abuse may also have reflected a dysfunctional relationship was beside the point, as Rodriguez did not need to show that her political opinion—rather than interpersonal dynamics—played the sole or predominant role in her abuse. By demonstrating that her political opinion was “one central reason” for her persecution, the panel concluded that Rodriguez likewise established that her political opinion was “a reason” for her persecution for purposes of withholding of removal. Because in granting relief under the Convention Against Torture the agency necessarily determined that Rodriguez carried her burden to prove the other elements of her claims for asylum and withholding of removal, the panel concluded that Rodriguez’s petition presented a recognized exception to the ordinary remand rule under I.N.S. v. Ventura, 537 U.S. 12 (2002) (per curiam). The panel explained that because the agency concluded that Rodriguez met the higher burden of establishing that she is likely to be tortured, she necessarily met the lower burdens for asylum and withholding relief of establishing that she has a well-founded fear, or clear probability, of persecution. Similarly, because the Board determined that the Mexican government would acquiesce to 4 ROGRIGUEZ TORNES V. GARLAND Rodriguez’s torture, the panel concluded that the Board had necessarily decided that the Mexican government would be unwilling or unable to protect Rodriguez from future persecution. The panel also concluded that because the Board determined that it would be unreasonable for Rodriguez to relocate within Mexico to avoid future torture, she likewise could not relocate to avoid future persecution. The panel held that Rodriguez was thus eligible for asylum and entitled to withholding of removal, and it remanded for the Attorney General to exercise his discretion whether to grant Rodriguez asylum, and if asylum is not granted, to grant withholding of removal. Concurring, Judge Paez wrote that in addition to ignoring evidence that Rodriguez was targeted on account of her feminist political opinion, the Board also ignored extensive record evidence from a leading authority on domestic violence that directly rejected the Board’s premise that domestic violence is presumed to be motivated by nothing more than the private dynamics of a “personal relationship.”
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