Yaine Reyna Sanchez v. Merrick Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 26 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT YAINE REYNA SANCHEZ, No. 20-71034 Petitioner, Agency No. A203-699-600 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted September 21, 2023 San Francisco, California Before: GOULD, NGUYEN, and BENNETT, Circuit Judges. Partial Dissent by Judge BENNETT. 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. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 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 2 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 …

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