FILED
NOT FOR PUBLICATION OCT 20 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
WILLIAM ALEXANDER LEIVA- No. 09-71636
PEREZ,
Agency No. A094-773-199
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted as of the filing date of this Memorandum **
San Francisco, California
Before: WARDLAW, FISHER, and BERZON, Circuit Judges.
William Alexander Leiva-Perez petitions for review of a decision of the
Board of Immigration Appeals (BIA) affirming an Immigration Judge’s (IJ) denial
of his application for asylum, withholding of removal, and relief under the United
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Nations Convention Against Torture (CAT). We grant the petition and remand to
the BIA.
1. The BIA abused its discretion by failing to provide a reasoned
explanation for its decision. See Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th
Cir. 2005). The BIA held that Leiva-Perez “failed to establish that past attempts to
extort money from him were on account of political opinion, or that any other harm
[Leiva-Perez] has suffered or will suffer was or will be on account of [statutory
grounds].” Leiva-Perez, who was found credible, had the burden of proving “(1)
that he held, or his persecutors believed that he held, a political opinion; and (2)
that he was harmed because of that political opinion.” Baghdasaryan v. Holder,
592 F.3d 1018, 1023 (9th Cir. 2010) (citation omitted). Because he filed his
application for asylum after May 11, 2005, Leiva-Perez must meet the REAL ID
Act’s requirement that his political opinion was “one central reason” for his
persecution, although he “need not prove that a protected ground was the only
central reason for the persecution [he] suffered,” as “a persecutory act may have
multiple causes.” Parussimova v. Mukasey, 555 F.3d 734, 740–41 (9th Cir. 2009).
Leiva-Perez adduced considerable evidence to carry his burden. First, he
demonstrated that he was associated with the ARENA political party. He believed
that ARENA would improve El Salvador; wore ARENA shirts, particularly during
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campaigns; and worked for a boss who supported ARENA, at a location where
ARENA meetings were held. Leiva-Perez asserted that he was targeted because of
his connection to his boss and his boss’s support of ARENA.
Second, Leiva-Perez testified that his attackers were members of FMLN, a
rival political party to ARENA; that they were driving cars adorned with FMLN
flags during at least one of their attacks on him; and that the FMLN members often
held confrontational street meetings.
Third, Leiva-Perez asserted that the first time he was attacked, FMLN
members “approached [him] and without saying any thing [sic] they started to hit
[him],” and then told him that they “had [him] under surveillance.” There was no
mention of money during that attack; that demand came some two months later, in
a second attack of Leiva-Perez by FMLN members. The IJ and the BIA, however,
did not mention the first attack at all in their analyses, and so did not consider the
reference to “surveillance” or the inconsistency between that initial attack and the
thesis that the FMLN members were interested in Leiva-Perez only as a source of
funds.
In sum, the BIA, agreeing with the IJ, dramatically minimized or disregarded
the record evidence that Leiva-Perez appeared to be an ARENA sympathizer;
worked in a place where ARENA meetings were held and for a boss who was a
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known ARENA supporter; was attacked by members of a rival party while they
were exhibiting party insignia; and was attacked so as to be “control[led],” apart
from the later extortion attempts. Although there may be a reasoned basis for
nonetheless finding no nexus between the violence Leiva-Perez suffered and a
protected ground, the agency has not yet articulated one, and “we can neither
‘accept . . . post hoc rationalizations for agency action’ nor ‘supply a reasoned
basis for the agency’s action that the agency itself has not given.’”
Hernandez-Cruz v. Holder, --- F.3d ----, 2011 WL 2652461, at *11 (9th Cir. 2011)
(quoting Nw. Envtl. Def. Ctr. v. Bonneville Power Admin., 477 F.3d 668, 688 (9th
Cir. 2007)).
We therefore remand to the BIA for the limited purpose of reconsidering its
holding that Leiva-Perez has not shown the requisite nexus. If the BIA reaches the
same conclusion upon remand, it shall explain its reasoning in sufficient detail to
demonstrate that it “has heard, considered, and decided” the nexus issue. Kalubi v.
Ashcroft, 364 F.3d 1134, 1141 (9th Cir. 2004); see also Franco-Rosendo v.
Gonzales, 454 F.3d 965, 967–68 (9th Cir. 2006); Movsisian, 395 F.3d at 1098.
2. The BIA did not consider the IJ’s alternative basis for denying the asylum
claim: that Leiva-Perez “ha[d] not demonstrated [that] he could not live elsewhere
in El Salvador.” We therefore cannot consider it either, see Andia v. Ashcroft, 359
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F.3d 1181, 1184 (9th Cir. 2004) (per curiam), and so remand for the BIA to
consider that issue in the first instance as well. We note, however, that the IJ
appeared to apply the wrong standard as to this issue. Once it is established that an
alien was persecuted on account of a protected ground, it is the government’s
burden to prove that he could avoid persecution by internally relocating. See 8
C.F.R. § 208.13(b)(1)(B) & (b)(ii).
3. The BIA’s only basis for denying Leiva-Perez’s withholding claim was
that insofar as he had failed to meet the lower burden of proof for asylum, a
fortiori he could not establish eligibility for withholding of removal. See 8 U.S.C.
§ 1231(b)(3)(A); Al-Harbi v. INS, 242 F.3d 882, 888–89 (9th Cir. 2001). Because
the BIA failed to explain its reasoning as to the nexus issue, we remand Leiva-
Perez’s withholding claim as well.
4. Leiva-Perez’s persecutors are not government agents, but members of a
rival political party. The BIA affirmed the IJ’s denial of Leiva-Perez’s CAT claim
by holding that Leiva-Perez “failed to establish a likelihood that he will be tortured
in El Salvador by or with the acquiescence of a public official or other individual
acting in an official capacity.” See 8 C.F.R. § 1208.18(a)(1); Aden v. Holder, 589
F.3d 1040, 1047 (9th Cir. 2009). Substantial evidence does not compel a contrary
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finding. Accordingly, we dismiss that part of Leiva-Perez’s petition that seeks
review of the BIA’s CAT determination.
Each party shall bear its own costs.
GRANTED IN PART, DENIED IN PART, AND REMANDED.
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