Yunior Cabrera-Rodriguez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
YUNIOR CABRERA-RODRIGUEZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 20-72336
Agency No. A203-615-371
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 7, 2022
Portland, Oregon
Before: BUMATAY and SANCHEZ, Circuit Judges, and BAKER,** International
Trade Judge.
Dissent by Judge BUMATAY.
Yunior Cabrera-Rodriguez, a native and citizen of Cuba, petitions for review
of a decision by the Board of Immigration Appeals (BIA) denying him 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 Honorable M. Miller Baker, Judge for the United States Court of
International Trade, sitting by designation.
FILED
JAN 6 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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We have jurisdiction under 8 U.S.C. § 1252. We deny in part and grant in part his
petition for review and remand to the agency for further proceedings.
1. “We may reverse the decision of the BIA only if the applicant shows that
the evidence compels the conclusion that the asylum decision was incorrect. This
strict standard precludes us from independently weighing the evidence and holding
that the petitioner is eligible for asylum, except in cases where compelling evidence
is shown. We look at the totality of the circumstances in deciding whether a finding
of persecution is compelled.” Guo v. Sessions, 897 F.3d 1208, 1212 (9th Cir. 2018)
(simplified). “We review de novo questions of law and mixed questions of law and
fact.” Ai Jun Zhi v. Holder, 751 F.3d 1088, 1091 (9th Cir. 2014).
Cabrera-Rodriguez bases his asylum claim on the following: He fled Cuba
after local police subjected him to escalating threats and two detentions and beatings
on account of his opposition to Cuba’s communist regime. Specifically, he testified
that he was told to report to the police station at least ten times but did not testify to
suffering any physical abuse by the police except for two incidents in January and
February 2019. During those incidents, the police beat Cabrera-Rodriguez, who
required minor medical attention after the second beating. He also testified that his
wife was “touched” and threatened in connection with the second of those incidents.
Cabrera-Rodriguez’s mistreatment was serious, but “persecution is an
extreme concept that does not include every sort of treatment our society regards as

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offensive” and whether particular treatment constitutes persecution “is heavily fact-
dependent.” Singh v. I.N.S., 134 F.3d 962, 967 (9th Cir. 1998). For example, the
record has compelled us to find past persecution in cases involving “significant
physical violence” that resulted in “serious injuries that required medical treatment.”
Sharma v. Garland, 9 F.4th 1052, 1061 (9th Cir. 2021). Our cases finding past
persecution explain that incidents involving some physical harm may not compel a
finding of persecution unless they involve “something more, such as credible death
threats.” Aden v. Wilkinson, 989 F.3d 1073, 1082 (9th Cir. 2021) (emphasis
removed).
A reasonable factfinder could conclude that the totality of the circumstances
here rises to the level of past persecution, but the totality of the circumstances doesn’t
compel this conclusion. See, e.g., Prasad v. I.N.S., 47 F.3d 336, 339 (9th Cir. 1995)
(being hit and kicked during detention by police could support a finding of past
persecution but did not compel it); Sharma, 9 F.4th at 1063–64 (being hit with a
baton, detained for 18 to 19 hours with some physical abuse that did not result in
serious bodily harm, and threatened with “big trouble”); Hoxha v. Ashcroft, 319 F.3d
1179, 1181–82 (9th Cir. 2003) (prolonged harassment, death threats, and one serious
beating); Gu v. Gonzales, 454 F.3d 1014, 1018, 1020 (9th Cir. 2006) (detention,
beating, and multiple requests to report to the police); Nahrvani v. Gonzales, 399
F.3d 1148, 1153 (9th Cir. 2005) (harassment, threats, and property damage).

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2. Because Cabrera-Rodriguez failed to produce evidence compelling a
finding of past persecution, he is not entitled to a presumption of a “well-founded
fear of future persecution.” See Sharma, 9 F.4th at 1065. That does not mean he
cannot establish future persecution. To establish a well-founded fear claim, he must
show his fear of persecution is both subjectively genuine and objectively reasonable.
See Al-Harbi v. I.N.S., 242 F.3d 882, 888 (9th Cir. 2001). The objective prong
requires a showing of at least a ten-percent chance of persecution on account of one
or more protected grounds (here, political opinion) committed by the government or
actors the government is unable or unwilling to control. Wakkary v. Holder, 558
F.3d 1049, 1052, 1061 (9th Cir. 2009). Remand of this claim is warranted for the
following reasons.
First, the BIA found that Cabrera-Rodriguez “testified to experiencing arrests
and incidents of harm in Cuba on account of his political opinion.” Therefore, he
has established that his mistreatment was on account of his political opinion.1
Second, the BIA essentially rubber-stamped the IJ’s finding that Cabrera-
Rodriguez “has not established that he … would suffer persecution at the hands of
1 Even if the BIA had not so found, the evidence compels the conclusion that the
police harassed him at least in part because he refused to vote in favor of a new
constitution under which the Communist Party would remain Cuba’s only legally
recognized political party. After all, refusing to vote in a one-party state is itself a
form of passive resistance to the regime and thus an expression of political opinion,
which is precisely why the police harassed him.

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the Cuban government.” But that finding relied on the IJ’s dismissal of the abuser
as a mere “provincial police captain.” “Police officers are the prototypical state actor
for asylum purposes,” so “persecutory acts by a single governmental or quasi-
government official are sufficient to establish state action.” Boer-Sedano v.
Gonzales, 418 F.3d 1082, 1088 (9th Cir. 2005). Thus, to the extent the BIA’s
analysis relied on the finding that any mistreatment was not by the Cuban
government, the BIA erred.
Third, the BIA rejected Cabrera-Rodriguez’s well-founded fear claim on the
basis that he was permitted to voluntarily depart from Cuba. Our precedent makes
clear that a petitioner’s ability to leave his country “does not undermine [his] claim
of a well-founded fear of future persecution, even when [he] succeeds in obtaining
government documents that permit [him] to depart.” Mamouzian v. Ashcroft, 390
F.3d 1129, 1137 (9th Cir. 2004). In the context of political dissent, “persecutors
may want to eliminate their political opposition and to achieve that end will either
persecute them or allow them to leave.” Turcios v. I.N.S., 821 F.2d 1396, 1402 (9th
Cir. 1987).
Because the BIA misapplied the governing legal standards in its rejection of
Cabrera-Rodriguez’s claim of well-founded fear, we remand for reconsideration of

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the claim under the correct standard. See Wakkary, 558 F.3d at 1059.2 On remand,
the BIA may consider Cabrera-Rodriguez’s credibility in the first instance, as its
decision assumed his credibility without deciding it. See Cordon-Garcia v. I.N.S.,
204 F.3d 985, 993–94 (9th Cir. 2000).
3. The BIA found that because Cabrera-Rodriguez failed to demonstrate
eligibility for asylum, “he has necessarily not established eligibility for withholding
of removal” under the more stringent “more likely than not” standard for fear of
future persecution applicable to withholding. The same problems that necessitate a
remand on the asylum issue therefore necessitate a remand on the withholding claim.
4. Finally, the BIA erred in rejecting Cabrera-Rodriguez’s CAT claim without
analyzing evidence relevant to that claim. Although the BIA need not discuss every
piece of evidence in the record, “where there is any indication that the BIA did not
consider all of the evidence before it, a catchall phrase does not suffice, and the
decision cannot stand.” Cole v. Holder, 659 F.3d 762, 771–72 (9th Cir. 2011). The
BIA’s “fail[ure] to mention highly probative or potentially dispositive evidence” is
one such indication. Id. at 772. Here, the BIA concluded in boilerplate terms that
2 The BIA also noted as a basis for rejecting the well-founded fear claim the IJ’s
finding that Cabrera-Rodriguez “was not persecuted in the past in Cuba.” To the
extent the BIA required Cabrera-Rodriguez to show past persecution to succeed on
his well-founded fear claim, it erred. See Avetova-Elisseva v. I.N.S., 213 F.3d 1192,
1197–98 (9th Cir. 2000) (past harm insufficient to constitute persecution may
nonetheless support a well-founded fear of future persecution).

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“the record evidence does not support” the likelihood of torture and failed to mention
probative evidence. The record shows that the Cuban police continued to search for
Cabrera-Rodriguez after he fled the country. While we have held that evidence of
continued police targeting may be accorded less weight when future persecution or
torture is unlikely in view of other evidence, see Singh v. Holder, 753 F.3d 826, 836
(9th Cir. 2014), the converse is also true: Where, as here, country conditions
evidence shows political dissidents are likely to be targeted, evidence that the police
are seeking out a known dissident (one the BIA found had been harassed based on
his political opinion) is more probative. Yet there is no indication that the BIA
considered that evidence or the country conditions evidence showing active
suppression and abuse of political opposition in Cuba. We therefore remand the
CAT claim for the BIA to consider “all evidence relevant to the possibility of future
torture.” See Bromfield v. Mukasey, 543 F.3d 1071, 1079 (9th Cir. 2008) (quoting 8
C.F.R. § 1208.16(c)(3)).
PETITION GRANTED in part, DENIED in part, and REMANDED.

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Cabrera-Rodriguez v. Garland, No. 20-72336
BUMATAY, Circuit Judge, dissenting:
I agree with the majority that Yunior Cabrera-Rodriguez has not established
past persecution. But I disagree that remand is necessary for the Board of
Immigration Appeals to reconsider his claim of future persecution. I thus dissent
from the court’s grant of the petition for review.
Without evidence of past persecution, Cabrera-Rodriguez had the burden of
presenting a “well-founded fear of future persecution.” Duran-Rodriguez v. Barr,
918 F.3d 1025, 1029 (9th Cir. 2019). Such fear must be both subjectively and
objectively reasonable. Id. Evidence of an objective fear must be “credible, direct,
and specific.” Nahrvani v. Gonzales, 399 F.3d 1148, 1152–53 (9th Cir. 2005).
Speculation does not suffice to meet this evidentiary burden. Id. at 1154.
Cabrera-Rodriguez’s claim of future persecution is purely speculative. The
immigration judge found, and the Board of Immigration Appeals affirmed, that
Cabrera-Rodriguez could not show that he would suffer persecution at the hands of
the Cuban government. Cabrera-Rodriguez testified that a single police captain
harassed him at his home and ordered him to report to the police station ten times.
Despite this, Cabrera-Rodriguez never received a summons or citation from Cuban
police. And while some of his treatment while at the police station was serious, they
did not raise to the high standard of persecution. He also testified that he had no
problems obtaining a passport or leaving Cuba. Since his departure, his wife and
FILED
JAN 6 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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family have continued to live in Cuba without any incidents of persecution. Finally,
Cabrera-Rodriguez did not testify to problems with any other Cuban government
officials.
Based on this testimony, the IJ concluded that Cabrera-Rodriguez only had
problems with a single provincial police captain. Such a finding is well supported
by substantial evidence. Even assuming a single officer’s actions may constitute
government action, we all agree that none of the police captain’s past actions
constitute persecution. And Cabrera-Rodriguez has not offered any “credible, direct,
and specific” evidence that the police captain would escalate his harassment in the
future. If the police captain did not previously persecute Cabrera-Rodriguez, then—
without more—it’s purely speculative to assume that the police captain would do so
in the future. Indeed, in ten incidents with the police captain, not once did the captain
cross the line into persecution. So Cabrera-Rodriguez hasn’t shown he’s entitled to
asylum.
And because Cabrera-Rodriguez can’t establish his claim to asylum, I would
also deny his claims for withholding of removal and relief under the Convention
Against Torture. Sharma v. Garland, 9 F.4th 1052, 1066–67 (9th Cir. 2021).
I respectfully dissent.

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