19-4176 Mendoza-Ventura v. Garland BIA Prieto, IJ A205 701 602

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 11th day of April, two thousand twenty-two. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 SUSAN L. CARNEY, 9 RICHARD J. SULLIVAN, 10 Circuit Judges. 11 _____________________________________ 12 13 ALCIDES MENDOZA-VENTURA, 14 Petitioner, 15 16 v. 19-4176 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Paige Austin, Esq., Make the Road 24 New York; Andrea A. Sáenz, 25 Brooklyn Defender Services, 26 Brooklyn, NY. 27 28 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 29 Assistant Attorney General; 30 Anthony P. Nicastro, Assistant 1 Director; Sherease Pratt, Senior 2 Litigation Counsel, Office of 3 Immigration Litigation, United 4 States Department of Justice, 5 Washington, DC. 6 7 UPON DUE CONSIDERATION of this petition for review of a

8 Board of Immigration Appeals (“BIA”) decision, it is hereby

9 ORDERED, ADJUDGED, AND DECREED that the petition for review

10 is GRANTED.

11 Petitioner Alcides Mendoza-Ventura, a native and citizen

12 of Honduras, seeks review of a November 27, 2019 decision of

13 the BIA, affirming a June 10, 2019 decision of an Immigration

14 Judge (“IJ”) denying Mendoza-Ventura’s application for

15 withholding of removal and relief under the Convention

16 Against Torture (“CAT”). In re Alcides Mendoza-Ventura, No.

17 A205 701 602 (B.I.A. Nov. 27, 2019), aff’g No. A205 701 602

18 (Immig. Ct. N.Y. City June 10, 2019). In the time since the

19 agency’s order was entered and this petition was filed, this

20 court granted a temporary stay of removal, Dkt. 37 (Apr. 2,

21 2020), and then denied a further stay, Dkt. 78 (May 6, 2020).

22 Mendoza-Ventura was then removed from the United States. We

23 assume the parties’ familiarity with the underlying facts and

24 procedural history. 2 1 We have reviewed the IJ’s decision as modified by the

2 BIA, i.e., minus the adverse credibility determination that

3 the BIA declined to reach. See Xue Hong Yang v. U.S. Dep’t

4 of Justice,

(2d Cir. 2005). We review the

5 agency’s factual findings for substantial evidence, see

6

(b)(4)(B); Hong Fei Gao v. Sessions,

67, 76 (2d Cir. 2018), and questions of law de novo, see

8 Paloka v. Holder,

(2d Cir. 2014).

9 To establish eligibility for withholding of removal, an

10 applicant must show past persecution or a likelihood of future

11 persecution “on account of race, religion, nationality,

12 membership in a particular social group, or political

13 opinion.”

(b);

(b)(3)(A).

14 The agency did not evaluate whether Mendoza-Ventura was

15 harmed because of his anticorruption political opinion, and

16 thus too hastily concluded that he failed to demonstrate that

17 the persecution he suffered was on account of a protected

18 ground. See Hernandez-Chacon v. Barr,

, 103–05

19 (2d Cir. 2020) (“We have held[] . . . that resisting

20 corruption and abuse of power -- including non-governmental

21 abuse of power -- can be an expression of political 3 1 opinion.”); Castro v. Holder,

(2d Cir.

2 2010) (“[P]ersecutors may have mixed motives, and an asylum

3 applicant need not demonstrate that a protected ground was

4 the exclusive reason for persecution, for the plain meaning

5 of the phrase ‘persecution on account of the victim’s

6 political opinion,’ does not mean persecution solely on

7 account of the victim’s political opinion.” (some internal

8 quotation marks and brackets omitted)).

9 Contrary to the Government’s argument, the IJ’s mere

10 recognition that Mendoza-Ventura raised an anticorruption

11 political opinion claim and its restatement of Mendoza-

12 Ventura’s testimony that he reported corruption does not cure

13 the agency’s failure to analyze that claim. See Hernandez-

14 Chacon, 948 F.3d at 103–05; Castro, 597 F.3d at 103–07. We

15 may not consider the Government’s argument in its brief that

16 Mendoza-Ventura failed to show that the corruption he opposed

17 was endemic rather than an isolated act because the agency

18 did not provide that reasoning as a basis for its decision.

19 See Lin Zhong v. U.S. Dep’t of Justice,

(2d

20 Cir. 2007); Singh v. U.S. Dep’t of Justice,

, 294

21 n.3 (2d Cir. 2006). 4 1 In light of the agency’s determination that Mendoza-

2 Ventura’s past harm rose to the level of persecution, a

3 finding that such persecution occurred on account of his

4 anticorruption political opinion would entitle him to a

5 presumption of future persecution and would shift the burden

6 to the Government, requiring it to rebut that presumption.

7

(b)(1)(i), (ii). Accordingly, we remand for

8 the agency to undertake that analysis.

9 For the foregoing reasons, the petition for review is

10 GRANTED, the BIA’s decision is VACATED, and the case is

11 REMANDED for further proceedings consistent with this

12 order. All pending motions and applications are DENIED and

13 stays VACATED.

14 FOR THE COURT: 15 Catherine O’Hagan Wolfe, 16 Clerk of Court

5