NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 2 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUIS AMAYA-PINEDA, No. 21-609
Agency No.
Petitioner, A208-169-505
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 13, 2023
San Francisco, California
Before: S.R. THOMAS and KOH, Circuit Judges, and RAKOFF, District
Judge.**
Luis Amaya-Pineda petitions for review of an order of the Board of
Immigration Appeals (“BIA”) affirming the Immigration Judge (“IJ”)’s denials
of asylum, withholding of removal, and relief under the Convention Against
Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252(a). We review
*
This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
legal questions de novo and the BIA’s factual determinations for substantial
evidence. Bhattarai v. Lynch, 835 F.3d 1037, 1042 (9th Cir. 2016). We deny the
petition in part and grant and remand in part for proceedings consistent with this
disposition.
1. With respect to Amaya-Pineda’s asylum and withholding claims, the
BIA assumed without deciding that Amaya-Pineda’s family was a cognizable
particular social group. However, the BIA concluded that Amaya-Pineda failed
to establish that his membership in his family constituted either “one central
reason for” his claimed persecution, as required for asylum, 8 U.S.C.
§ 1158(b)(1)(B)(i), or “a reason” for his claimed persecution, as required for
withholding of removal, Barajas-Romero v. Lynch, 846 F.3d 351, 359–60 (9th
Cir. 2017). Instead, the BIA sustained the IJ’s finding that the reason Amaya-
Pineda was extorted and threatened with violence by a criminal gang was simply
because “the gang members . . . wanted money.”
Ample evidence supports the agency’s factual finding that the putative
persecutors were motivated by money rather than animus. However, this does not
end the inquiry, because the facts as recounted by the BIA plainly demonstrate
that Amaya-Pineda’s membership in his family was “at least one central reason”
that the 18th Street gang targeted him, as opposed to some other individual. 8
U.S.C. § 1158(b)(1)(B)(i). Specifically, the BIA found that “[t]he gang members
also explicitly told [Amaya-Pineda] they were extorting him because they knew
he had family members in the United States who could pay.” Thus, “the attackers’
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words themselves evidence that they were motivated, at least in part, by [Amaya-
Pineda’s] [family] status . . . and not solely by criminal opportunism.” Ali v.
Ashcroft, 394 F.3d 780, 786 (9th Cir. 2005).
Although this evidence plainly supports the inference that Amaya-Pineda’s
membership in his family was “at least one central reason” he was targeted, the
BIA instead treated it as undermining the asserted nexus between his membership
in his family and his persecution claim. That was error. To the extent Amaya-
Pineda was targeted—as the BIA found he was—because gang members knew
he had family in the United States, that tends to show Amaya-Pineda’s
membership in his family was “at least one central reason” he was targeted. 8
U.S.C. § 1158(b)(1)(B)(i). “Because we hold that the BIA erred in determining
that [Amaya-Pineda] had not met the ‘central reason’ standard required for
asylum, it necessarily follows that the BIA erred in determining [he] had not met
the standard for withholding.” Kaur v. Garland, 2 F.4th 823, 833 n.7 (9th Cir.
2021). Accordingly, the BIA’s legal conclusion that there was no nexus between
Amaya-Pineda’s claim of persecution and his membership in his family was
erroneous. We therefore grant this aspect of the petition and remand for the
agency to consider in the first instance whether Amaya-Pineda’s proposed
particular social group is cognizable, and whether the other elements of his
asylum and withholding of removal claims are satisfied. See Garcia v. Wilkinson,
988 F.3d 1136, 1144 (9th Cir. 2021).
2. However, we deny the petition with respect to Amaya-Pineda’s
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claim for CAT relief because he has failed to demonstrate any error in the BIA’s
conclusion that he had not established El Salvador’s acquiescence to any torture
Amaya-Pineda might face if removed. To the contrary, the BIA reasonably
concluded that the evidence that several of Amaya-Pineda’s assailants were
investigated and arrested soon after their assault of Amaya-Pineda undermined
any inference of acquiescence. To be sure, no charges were ultimately brought,
but “[e]vidence that the police were aware of a particular crime, but failed to bring
the perpetrators to justice, is not in itself sufficient to establish acquiescence in
the crime.” Garcia-Milian v. Holder, 755 F.3d 1026, 1034 (9th Cir. 2014).
Further, as the BIA noted, the failure to bring charges may have owed to Amaya-
Pineda’s own departure, which deprived any prosecution of the key witness. And,
other than this failure to bring charges, Amaya-Pineda failed to point to any
evidence that the Salvadoran government actually acquiesced in torture by gangs;
to the contrary, the BIA noted evidence that El Salvador’s government has sought
to prevent gang violence, even if its efforts have not always achieved success. As
such, we deny the petition with respect to Amaya-Pineda’s CAT claim.
PETITION FOR REVIEW DENIED IN PART AND GRANTED IN
PART; REMANDED.
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