Jose Felipe Mendez-Membreno v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE FELIPE MENDEZ-MEMBRENO,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 19-71374
Agency No. A208-675-530
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 19, 2021**
Before: SCHROEDER, SILVERMAN, and MURGUIA, Circuit Judges.
Jose Felipe Mendez-Membreno, a native and citizen of El Salvador,
petitions for review of the Board of Immigration Appeals’ order dismissing his
appeal from an immigration judge’s 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).
FILED
JUL 23 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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 review de novo questions of law. Bhattarai v. Lynch, 835 F.3d 1037,
1042 (9th Cir. 2016). We grant the petition for review, and we remand.
As to asylum and withholding of removal, the record compels the conclusion
that the cumulative harm Mendez-Membreno suffered in El Salvador rose to the
level of persecution. See Ruano v. Ashcroft, 301 F.3d 1155, 1160-61 (9th Cir.
2002) (finding that petitioner established harm rising to the level of persecution
where he received repeated death threats related to his political employment, was
pursued and confronted by armed men, and several co-workers were killed); see
also Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019) (“We have
been most likely to find persecution where threats are repeated, specific and
combined with confrontation or other mistreatment.” (citation and internal
quotation marks omitted)). Thus, we grant the petition for review as to Mendez-
Membreno’s asylum and withholding of removal claims and remand for the agency
to apply the presumption of a well-founded fear of future persecution. See INS v.
Ventura, 537 U.S. 12, 16-18 (2002) (per curiam); Guo v. Sessions, 897 F.3d 1208,
1217 (9th Cir. 2018) (concluding the record compelled the conclusion that
petitioner suffered past persecution and remanding for the BIA to apply a
presumption of future persecution and “to determine, in the first instance, whether

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the government can rebut that presumption”).
As to CAT, the agency erred by failing to address Mendez-Membreno’s
testimony that police refused to take a report when Mendez-Membreno went to file
a complaint about the harm he experienced. See Parada v. Sessions, 902 F.3d 901,
915-16 (9th Cir. 2018) (remanding where “the agency erred by failing to consider
all relevant evidence” as to CAT relief). The BIA also erred by relying on the IJ’s
finding that Mendez-Membreno failed to show that he could not internally
relocate, where it appears the IJ only reached an internal relocation determination
as to Mendez-Membreno’s asylum and withholding of removal claims. See
Maldonado v. Lynch, 786 F.3d 1155, 1163-64 (9th Cir. 2015) (remanding where
the BIA denied CAT relief based on the IJ’s determination that, as to asylum, the
applicant failed to show that he could not relocate). Thus, we grant the petition for
review as to Mendez-Membreno’s CAT claim and remand for the agency to
reconsider the claim in consideration of all evidence relevant to state action,
including Mendez-Membreno’s testimony that police refused to take his report.
See INS, 537 U.S. at 16-18; Parada, 902 F.3d at 916 (remanding for the agency to
consider all relevant evidence and apply the appropriate standard).
Mendez-Membreno’s removal is stayed pending a decision by the BIA.
The government shall bear the costs for this petition for review.
PETITION FOR REVIEW GRANTED; REMANDED.

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