FILED NOT FOR PUBLICATION NOV 4 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JESUS MONTERO-CABRERA, No. 19-72306 Petitioner, Agency No. A205-415-993 v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted October 19, 2020 San Francisco, California Before: THOMAS, Chief Judge, and KELLY** and MILLER, Circuit Judges. Jesus Montero-Cabrera petitions for review of the Board of Immigration Appeal’s (“BIA”) decision affirming the immigration judge’s (“IJ”) denial of Petitioner’s application for withholding of removal and protection under the Convention Against Torture (“CAT”). We have jurisdiction pursuant to 8 U.S.C. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Paul J. Kelly, Jr., United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. § 1252(a)(1), and we grant the petition in part and deny it in part. Because the parties are familiar with the history of the case, we need not recount it here. I The BIA erred in its legal analysis of Petitioner’s claim of past persecution, which we review de novo. Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017). The BIA assumed that the Petitioner had testified credibly. Because the BIA assumed credibility, we must as well, and “assume [that his] factual assertions are true.” Gonzalez-Caraveo v. Sessions, 882 F.3d 885, 894 (9th Cir. 2018); see also Hanna v. Keisler, 506 F.3d 933, 937 (9th Cir. 2007). Here, the Petitioner testified that he was kidnapped by the Sinaloa Cartel and was locked in a room for three days. He was then conscripted into forced labor for the cartel for months, carrying supplies to its members across the border. He testified that he wanted to escape, but could not. He was not paid by the cartel and was deprived from earning income. He witnessed the cartel commit acts of violence. He was discovered by border agents several times and removed to Mexico, but the cartel was waiting for him. Eventually, he was able to escape the cartel on a trip to the United States. He traveled to Chandler, Arizona, where he learned that the cartel had ordered his assassination. He further learned that his 2 uncle had received a message that the cartel was holding Petitioner’s brother, and that the brother would be tortured until Montero-Cabrera returned. First, the BIA held that threats against the Petitioner did not constitute persecution “as a matter of law,” in part because threats, “standing alone,” rarely constitute persecution. That assertion is belied both by the record, which indicates that the threats did not “stand alone,” and by our legal precedent. “[D]eath threats alone can constitute persecution.” Navas v. INS, 217 F.3d 646, 658 (9th Cir. 2000); see also Artiga Turcios v. INS, 829 F.2d 720, 722–24 (9th Cir. 1987) (holding petitioner established past persecution where neighbor relayed ...
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