Luis Poroj-Lopez v. Jefferson Sessions

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 14 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

LUIS FERNANDO POROJ-LOPEZ, No. 14-73742

Petitioner, Agency No. A205-521-429

v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted August 9, 2017**

Before: SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges.

Luis Fernando Poroj-Lopez, a native and citizen of Guatemala, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal

from an immigration judge’s (“IJ”) decision denying his application for asylum,

withholding of removal, and relief under the Convention Against Torture (“CAT”).

*
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).
We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence

the agency’s factual findings. Madrigal v. Holder, 716 F.3d 499, 503 (9th Cir.

2013). We dismiss in part, deny in part, and grant in part the petition for review

and remand.

We lack jurisdiction to consider Poroj-Lopez’s contention that he will be

harmed based on his ethnicity because he failed to raise the issue before the BIA.

See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (petitioner must

exhaust issues or claims in administrative proceedings below).

Substantial evidence supports the BIA’s conclusion that even if Poroj-Lopez

was a member of a valid social group of “business and/or land owners,” he failed

to demonstrate a nexus between the harm he suffered and fears and his

membership in that group. See INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992) (an

applicant “must provide some evidence of [motive], direct or circumstantial”).

Without addressing the cognizability of the group, the BIA also concluded

that even if Poroj-Lopez was a member of a valid social group of “witnesses to

corrupt government officials,” he failed to establish that his past mistreatment

reflected anything more than indiscriminate criminal violence in Guatemala.

Substantial evidence does not support this conclusion. See Hu v. Holder, 652 F.3d

1011, 1019 (9th Cir. 2011). In light of our conclusion, and remand as to Poroj-

Lopez’s claim of past persecution, we do not reach the agency’s relocation finding.

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See 8 C.F.R. § 1208.13(b)(1) (If an applicant is entitled to a presumption of a fear

of future persecution, the government shall bear the burden of establishing the

applicant could not relocate to avoid harm). In remanding, we express no opinion

as to the cognizability of the proposed social groups in this case. See Andia v.

Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004) (per curiam) (“In reviewing the

decision of the BIA, we consider only the grounds relied upon by that agency. If

we conclude that the BIA’s decision cannot be sustained upon its reasoning, we

must remand to allow the agency to decide any issues remaining in the case.”).

As to CAT relief, the IJ mischaracterized the evidence regarding a

supervising police officer’s motivation to target Poroj-Lopez. Also, the agency’s

finding that there was no evidence that government officials would acquiesce in

Poroj-Lopez’s torture is not supported. See Madrigal, 716 F.3d 499, 509 (9th Cir.

2013) (“[A]n applicant for CAT relief need not show that the entire foreign

government would consent to or acquiesce in his torture. He need show only that ‘a

public official’ would so acquiesce.”).

Thus, we dismiss in part, deny in part, and grant in part the petition for

review, and remand Poroj-Lopez’s asylum, withholding of removal, and CAT

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claims to the agency for further proceedings consistent with this disposition. See

INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam). In light of this remand, we

do not reach Poroj-Lopez’s remaining contentions at this time.

Costs are awarded to petitioner.

PETITION FOR REVIEW DISMISSED in part; DENIED in part;

GRANTED in part; REMANDED.

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