FILED

NOT FOR PUBLICATION

NOV 07 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SUSANA YAMILETH ALFARO No. 16-70835

CABRERA,

Agency No. A206-675-693 Petitioner,

v. MEMORANDUM*

JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

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

Argued and Submitted October 12, 2018 Seattle, Washington

Before: N.R. SMITH and CHRISTEN, Circuit Judges, and PAYNE,** District Judge.

Petitioner Susana Yamileth Alfaro Cabrera (Alfaro) petitions for review of

the Board of Immigration Appeals’s (BIA) denial of her applications for asylum,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Robert E. Payne, United States District Judge for the Eastern District of Virginia, sitting by designation. withholding of removal, and relief under the Convention Against Torture (CAT).

We have jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law,

and we review the agency’s factual findings for substantial evidence. Ai Jun Zhi v.

Holder, 751 F.3d 1088, 1091 (9th Cir. 2014). We grant the petition in part and

remand to the BIA for further proceedings.

1. Asylum. To establish past persecution, an applicant must show that a

protected ground was “at least one central reason for persecuting the applicant.”

8 U.S.C. § 1158(b)(1)(B)(i). The record compels the conclusion that Alfaro

established the requisite nexus between the harm she suffered and a protected

ground. Alfaro’s religion and her membership in the social group comprised of her

family were both central reasons for the harm Alfaro suffered in El Salvador.1

Alfaro and her family were leaders of the evangelical church “Warriors of Christ,”

which they ran out of the front room of their family home. The church led a youth

outreach program that helped young people seek refuge and rehabilitation from

gangs. Alfaro’s family received death threats from MS-13 because of the church’s

1 In Alfaro’s Pre-Hearing Statement submitted to the Immigration Judge (IJ), Alfaro presented her political opinion and religious beliefs as “entwined.” Because we conclude that there was a nexus between the harm suffered and her religion and her membership in a social group, we need not reach Alfaro’s additional arguments for finding persecution on account of a protected ground. 2 work rehabilitating gang members. After Alfaro and her family helped her nephew

Douglas escape the gangs, gang members called and issued death threats, and then

Douglas was murdered during church services. Shortly thereafter Alfaro’s brother-

in-law, a church pastor who led the youth outreach program, was murdered and

found with signs of torture—his eyes were gouged out and he was missing an ear.

The gang continued to threaten and intimidate Alfaro’s family, frequently

attempting to break into the church on Sundays and forcing Alfaro’s family to flee

through a passageway to the neighbor’s home.

Substantial evidence does not support the BIA’s conclusion that Alfaro

failed to establish the requisite nexus to the harm she suffered, as substantial

evidence does not support the BIA’s theory that the gang members may have been

“motivated by a personal vendetta.” The gang’s anger at the Warrior of Christ’s

efforts to diminish the gang’s ranks cannot be divorced from the church’s and

family’s beliefs, mission, and outreach. There is no evidence in the record for a

retributory motive that is not connected to the church’s and family’s anti-gang

actions. Because the record compels the conclusion that Alfaro showed a

3 sufficient nexus to a statutorily-protected ground, on remand we direct the BIA to

determine whether the harm Alfaro suffered constitutes past persecution.2

If Alfaro establishes past persecution, she will be entitled to a presumption

of well-founded fear of future persecution. 8 C.F.R. § 1208.13(b)(1). The BIA

must then determine whether the government presented sufficient evidence to rebut

the presumption. Id.; see also Silaya v. Mukasey, 524 F.3d 1066, 1072 (9th Cir.

2008). Even if the BIA determines that the harm Alfaro suffered did not rise to the

level of persecution, it must still consider whether she is likely to suffer future

mistreatment at the hands of MS-13 severe enough to give rise to an asylum claim

in light of the established nexus to a protected ground. Additionally, if the BIA

determines that Alfaro established past persecution, the BIA should address

whether Alfaro should be granted humanitarian asylum. 8 C.F.R.

§ 11208.13(b)(1)(iii).

We grant the petition as to the asylum and humanitarian relief claims, and

remand for reconsideration.

2. Withholding of Removal. The BIA erred as a matter of law in

denying Alfaro’s claim for withholding of removal. To qualify, an applicant must

2 Although the BIA referred to the gang violence Alfaro suffered as “persecution,” the BIA did not explicitly conclude that the harm Alfaro suffered rose to the level of persecution. 4 show that it is more likely than not that she would be subject to future persecution

if she was returned to her homeland, and that “a reason” for the persecution would

be due to a protected ground. 8 U.S.C. § 1231(b)(3)(C); see 8 C.F.R. § 1208.16(b).

In Barajas-Romero v. Lynch, 846 F.3d 351 (9th Cir. 2017), this Court clarified that

the nexus requirement for withholding of removal is a “less demanding standard”

than that for asylum because “the withholding statute just says ‘a’ reason, not ‘at

least one central reason.’” Id. at 358–59. Accordingly, the proper legal standard in

withholding claims is “a reason,” and the BIA and IJ erred in applying the “one

central reason” standard to Alfaro’s claim for withholding of removal. We grant

the petition as to the withholding of removal claim and remand in order to permit

the agency to apply the proper standard as articulated in Barajas-Romero, a

decision that was issued after the BIA reached its decision in this case.

3. Convention Against Torture (CAT). “To demonstrate eligibility for

withholding of removal under the CAT, an alien must show that it is ‘more likely

than not’ that a government official or person acting in an official capacity would

torture him or aid or acquiesce in his torture by others.” Wakkary v. Holder, 558

F.3d 1049, 1067–68 (9th Cir. 2009) (quoting Kamalthas v. INS, 251 F.3d 1279,

1283 (9th Cir. 2001)). Substantial evidence supports the BIA’s determination that

5 Alfaro did not establish that it was more likely than not that a public official would

acquiesce in Alfaro’s torture. We deny the petition as to the CAT claim.

4. Due Process. Substantial evidence supports the BIA’s determination

that the there was no due process violation. We deny the petition as to the due

process violation.

Petition GRANTED and REMANDED in part, DENIED in part.

The parties shall bear their own costs on appeal.

6