Andrea Alachan Lemus v. Robert Wilkinson

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 5, 2021
• Docket: 17-73251
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 5 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ANDREA ALACHAN LEMUS, No. 17-73251

Petitioner, Agency No. A206-681-292

v. MEMORANDUM* ROBERT M. WILKINSON, Acting Attorney General,

Respondent.

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

Submitted February 3, 2021**

Before: HAWKINS, GRABER, and CLIFTON, Circuit Judges.

Lead petitioner Andrea Alachan Lemus ("Petitioner") and her son, Carlos

Arevalos Alachan, timely seek review of the Board of Immigration Appeals’

("BIA") dismissal of their appeal of an immigration judge’s ("IJ") denial of

asylum, withholding of removal, and relief under the Convention Against Torture.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Reviewing de novo the agency’s legal conclusions and reviewing for substantial

evidence its factual findings, J.R. v. Barr, 975 F.3d 778, 781 (9th Cir. 2020), we

deny the petition in part, grant the petition in part, and remand for further

proceedings.

1. The BIA correctly held that one of Petitioner’s proposed "particular

social groups" is not cognizable. "Victims of domestic violence" impermissibly

defines the group solely by reference to harm. See Diaz-Reynoso v. Barr, 968 F.3d

1070, 1081 n.5 (9th Cir. 2020) ("[P]ersecution alone cannot define the social

group.").

2. Substantial evidence supports the BIA’s conclusion, on this record, that

Petitioner’s general fears of criminal violence upon return to El Salvador bear an

insufficient nexus to her proposed social group of "young, single-mothers returning

to El Salvador from the United States." See Zetino v. Holder, 622 F.3d 1007, 1016

(9th Cir. 2010) ("An alien’s desire to be free from harassment by criminals

motivated by theft or random violence by gang members bears no nexus to a

protected ground.").

3. Substantial evidence does not support the BIA’s determinations with

respect to a particular social group composed of domestic violence victims in El

2 Salvador who are unable to leave their relationships, akin to the group discussed in

Matter of A-R-C-G-, 26 I. & N. Dec. 388 (BIA 2014).1

First, substantial evidence does not support the BIA’s conclusion that

Petitioner "was able to leave the domestic relationship she shared with her former

partner," because the BIA’s analysis rested on a plainly erroneous understanding of

the record. Petitioner lived with her former partner continuously from August

2008 through January 2014, except for a one-year period beginning in February

2010. Petitioner was abused repeatedly during the two periods of cohabitation.

The BIA misunderstood the factual record, stating incorrectly that Petitioner "was

able to leave her former partner and live with her parents without incident from

2009 to 2010 and later from March 2011 to January 2014." On remand, the BIA

may reconsider—with a proper understanding of the record—whether Petitioner

was able to leave the relationship successfully.

1 The Attorney General later overruled Matter of A-R-C-G- in Matter of A- B-, 27 I. & N. Dec. 316 (A.G. 2018), which itself has been overruled in part, Grace v. Barr, 965 F.3d 883 (D.C. Cir. 2020), and further refined, Matter of A-B-, 28 I. & N. Dec. 199 (Acting A.G. 2021). Later legal developments do not affect our analysis here for two independent reasons. First, the BIA did not hold, in the alternative, that Petitioner’s proposed group was not cognizable; we therefore cannot reach that ground. Navas v. INS, 217 F.3d 646, 658 n.16 (9th Cir. 2000). Second, we recently held that the BIA must carefully examine the cognizability of proposed particular social groups, Diaz-Reynoso, 968 F.3d at 1082–87, which did not occur here.

3 Second, substantial evidence does not support the BIA’s conclusion that the

Salvadoran government was not unable or unwilling to protect her. The relevant

country report and several news articles support Petitioner’s own testimony that

reporting an incident to the police would have been futile. The evidence in this

record as to El Salvador thus differs from the evidence pertaining to Guatemala in

Velasquez-Gaspar v. Barr, 976 F.3d 1062, 1064–65 (9th Cir. 2020). Given the

general country conditions and Petitioner’s testimony—which the IJ and BIA

credited—that the police in her town do not respond to formal complaints,

substantial evidence does not support the BIA’s speculation that, because a family

friend who was a police officer encouraged Petitioner to file a formal complaint,

the police would have acted in this instance.

4. Substantial evidence supports the BIA’s conclusion that Petitioner is not

entitled to relief under the Convention Against Torture.

The parties shall bear their own costs on appeal.

DENIED in part, GRANTED in part, and REMANDED for further