Josep De Paz Sales v. William Barr


FILED NOT FOR PUBLICATION SEP 30 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JOSEP N. DE PAZ SALES, AKA Josep No. 19-72450 De Paz, Agency No. A207-001-533 Petitioner, v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted September 18, 2020** San Francisco, California Before: SCHROEDER, W. FLETCHER, and HUNSAKER, Circuit Judges. Josep N. De Paz Sales petitions for review of a decision of the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ’s) denial of his application for asylum, withholding of removal, and protection under the * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Convention Against Torture (“CAT”). We have jurisdiction under 28 U.S.C. § 1252, and we grant the petition. 1. The BIA agreed that family membership could be a protected ground. However, it affirmed the IJ’s denial of asylum and withholding of removal solely on the ground that De Paz Sales had failed to show his future persecution would be “on account of” family membership instead of as part of general gang violence. Substantial evidence compels the contrary conclusion. Barrio 18 has killed all seven of De Paz Sales’ male cousins in Guatemala. Although two female relatives, his grandmother and cousin, remain unharmed, the record reflects that gangs target men and women differently. Two experts explained that while Barrio 18 targets whole families in general, the seven murders indicate that Barrio 18 is targeting De Paz Sales’ family in particular. De Paz Sales’ grandmother and cousin confirm that Barrio 18 actively investigates familial affiliations. After De Paz Sales’ male cousin was returned to Guatemala from New York, Barrio 18 quickly discovered his family ties and murdered him. This court has reversed adverse nexus determinations on far less evidence. See, e.g., Shoafera v. INS, 228 F.3d 1070, 1074 (9th Cir. 2000) (petitioner showed nexus because she credibly testified that she was raped on account of her ethnicity); Borja v. INS, 175 F.3d 732, 736 (9th Cir. 1999) (en banc) (petitioner 2 showed nexus where she had stated her political opposition and guerillas “g[o]t mad” and pointed a gun at her), superseded by statute on other grounds as stated by Parussimova v. Mukasey, 555 F.3d 734, 740–41 (9th Cir. 2009). The BIA did not reach the questions whether extraordinary circumstances excused De Paz Sales’ late-filed asylum application or whether the particularly serious crime bar applied to his asylum and withholding of removal claims. We remand to the BIA to decide in the first instance whether either bar applies. See INS v. Ventura, 537 U.S. 12 (2002) (per curiam). 2. De Paz Sales is entitled to relief under CAT if “it is more likely than not that he . . . would be tortured ...

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