Alma Medrano-Lopez v. Jefferson Sessions

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 17, 2018
• Docket: 15-71203
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUL 17 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALMA MEDRANO-LOPEZ; DAYANA No. 15-71203 ASCENCIO-MEDRANO; RANCES ASCENCIO-MEDRANO, Agency Nos. A088-038-054 A088-038-055 Petitioners, A088-038-058

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 April 11, 2018 Pasadena, California

Before: ROGERS,** BYBEE, and WATFORD, Circuit Judges.

Petitioners Alma Medrano Lopez, Dayana Ascencio Medrano, and Rances

Ascensio Medrano (“Petitioners”) seek review of the Board of Immigration

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable John M. Rogers, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. Appeals’ (“BIA”) denial of their motion to reopen their asylum and withholding of

removal proceedings. The BIA concluded that Petitioners’ motion to reopen, filed

more than three years after the BIA’s previous decision in their case, did not fall

within the exceptions to the 90–day time limitation for motions to reopen. The

BIA held that Petitioners’ new evidence was insufficient to establish materially

changed country conditions in El Salvador and that Petitioners had not established

a prima facie case for the relief sought. See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.

§ 1003.2(c)(3)(ii). We have jurisdiction under 8 U.S.C. § 1252(a)(1), and we grant

the petition for review.

The denial of a motion to reopen is reviewed for abuse of discretion, and

“the BIA abuses its discretion when its denial is ‘arbitrary, irrational, or contrary to

law.’” Agonafer v. Sessions, 859 F.3d 1198, 1203 (9th Cir. 2017) (quoting Singh v.

INS, 295 F.3d 1037, 1039 (9th Cir. 2002)). The BIA must accept the facts asserted

by a petitioner in a motion to reopen as true unless they are “inherently

unbelievable,” and the BIA “must show proper consideration of all factors, both

favorable and unfavorable, in determining whether to grant a motion to reopen and

must articulate its reasons for denying such a motion.” Id. (internal quotation

marks omitted). “While the BIA ‘does not have to write an exegesis on every

contention,’ it is required to ‘consider the issues raised, and announce its decision

2 in terms sufficient to enable a reviewing court to perceive that it has heard and

thought and not merely reacted.’” Id. at 1206–07 (quoting Lopez v. Ashcroft, 366

F.3d 799, 807 n.6 (9th Cir. 2004)).

The BIA’s denial, explained in a single paragraph of analysis, is an abuse of

discretion. Although Petitioners’ claims for asylum and withholding of removal

were denied by the Immigration Judge (“IJ”) for failure to show a nexus to a

protected ground, the IJ determined that Petitioners had met the greater burden

under the Convention Against Torture (“CAT”) by showing that it was more likely

than not that they would be tortured upon removal. These factual findings were

not disturbed by the BIA’s determination that Petitioners’ evidence of the

government’s consent or acquiescence in that torture was legally insufficient for

CAT relief. See Medrano-Lopez v. Holder, 584 F. App’x 319, 320–21 (9th Cir.

2014).

In denying reopening because “[e]vidence of gang violence and police

corruption in El Salvador does not demonstrate that the respondents have fears that

differ from the populace as a whole,” the BIA improperly disregarded the evidence

from the original proceedings establishing Petitioners’ well-founded fear of future

harm rising to the level of persecution, as well as the new evidence Petitioners

3 submitted attesting to the continued harm faced by the family since they left El

Salvador.

The BIA stated that Petitioners “still have not demonstrated a nexus between

the persecution they fear and a protected ground under the Act . . . .” Petitioners

contend that their new evidence establishes a protected ground—a particular social

group, evidence of which was not available during their original proceedings, of

“young Salvadoran women viewed as property and acceptable victims by the

country’s gangs.” In reaching only the nexus issue, the BIA must have assumed

the validity of this particular social group. See, e.g., Matter of C-T-L-, 25 I. & N.

Dec. 341, 349 (BIA 2010). But if the cognizability of the social group is assumed,

then the IJ’s undisturbed factual findings compel the conclusion that Petitioners

have a reasonable likelihood of demonstrating a well-founded fear of persecution

on account of a protected ground: The IJ determined that the kidnaping of Dayana

by gang members and those who identified themselves as police officers was

“prompted” by money, but that money was not “the reason for the release and the

subsequent harm that may ensue,” as no ransom was paid. Rather, the IJ found

that the release and future harm feared by Petitioners were motivated by a gang

leader’s “demand that the child be provided to him as a bride.” Because the BIA

failed to either determine the cognizability of the particular social group in light of

4 the new evidence of conditions in El Salvador or provide a reasoned explanation

for why the evidence already in the record did not demonstrate a nexus to this

particular social group, it abused its discretion.

Finally, the BIA continued in the same sentence, “. . . nor a change

indicating it is more likely than not that they would now be tortured in El Salvador

with the consent or acquiescence of the government.” Petitioners’ motion to

reopen before the BIA did not seek to reopen those proceedings; rather, it

addressed only asylum and withholding of removal. It thus appears that the BIA

applied the wrong legal standard in determining whether Petitioners met their

burden for reopening their asylum and withholding of removal proceedings. The

BIA may have intended with this line to cover all possible bases for relief, but in

the absence of any explanation for its sua sponte consideration of whether

Petitioners’ new evidence of a protected ground warranted the reopening of their

CAT proceedings, it has, at a minimum, failed to sufficiently explain its denial.

The petition for review is GRANTED, and the case is REMANDED to the

BIA with instructions to consider properly Petitioners’ changed country conditions

evidence.

5 FILED Medrano-Lopez v. Sessions, No.15-71203 JUL 17 2018 MOLLY C. DWYER, CLERK ROGERS, Circuit Judge, dissenting. U.S. COURT OF APPEALS

I respectfully dissent. Although spare, the BIA’s reasons given for denying

re-opening were sufficiently clear to preclude a determination that the Board abused

its discretion.