NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 9 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
GERARDO SOLORIO MEJIA, AKA No. 17-71299 Gerardo Solorio Torres; et al., Agency Nos. A078-756-910 Petitioners, A205-528-926 A205-528-927 v. A205-528-928
WILLIAM P. BARR, Attorney General, MEMORANDUM* Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted October 7, 2020 Portland, Oregon
Before: PAEZ and RAWLINSON, Circuit Judges, and ANTOON,** District Judge. Partial Dissent by Judge RAWLINSON
Petitioners Gerardo Solorio Mejia (“Solorio Mejia”), Adriana Tinajero
Hurtado, Wendi Guadalupe Solorio Tinajero, and Leiririana Solorio Tinajero
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable John Antoon II, United States District Judge for the Middle District of Florida, sitting by designation. (collectively “Petitioners”)1 petition for review of the Board of Immigration
Appeals’ (“BIA” or “Board”) decision denying their applications for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”).
We have jurisdiction under 8 U.S.C. § 1252. We grant the petition in part, deny it
in part, dismiss it in part, and remand for further proceedings.
We review factual findings for substantial evidence and “uphold the agency
determination unless the evidence compels a contrary conclusion.” Duran-
Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019). We review de novo
questions of law. Madrigal v. Holder, 716 F.3d 499, 503 (9th Cir. 2013). Failure of
the agency to address a claim “constitutes error and requires remand.” Rios v.
Lynch, 807 F.3d 1123, 1126 (9th Cir. 2015); see also Sagaydak v. Gonzales, 405
F.3d 1035, 1040 (9th Cir. 2005) (“IJs and the BIA are not free to ignore arguments
raised by a petitioner.”); Cole v. Holder, 659 F.3d 762, 771–72 (9th Cir. 2011)
(“[W]here 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.”).
1. The IJ and BIA erred in this case by failing to address the record evidence
and arguments regarding Solorio Mejia’s fear of harm on account of an imputed
political opinion. A petitioner can establish eligibility for asylum and withholding
1 Gerardo Solorio Mejia is the lead petitioner. His spouse, Adriana Tinajero Hurtado, and children are derivative beneficiaries in his applications for relief.
2 of removal by showing that he fears persecution on account of an imputed political
opinion. Singh v. Holder, 764 F.3d 1153, 1159 (9th Cir. 2014). Here, Solorio Mejia
presented evidence that he was targeted on this basis, and he argued the issue
before the IJ and BIA.
Soloria Mejia first raised this claim in his pre-hearing statement, where he
specifically argued that “[i]mputed political opinion can exist no matter what the
applicant’s actual opinion may be,” and described how an anti-cartel viewpoint
may have been imputed to him based on his actions and the notoriety of his family.
He then testified that the cartel began to surveil and menace Petitioners within a
few days of Solorio Mejia’s visit to a state-run morgue where he left his name and
contact information. He reasoned that the cartel had imputed to him a belief that he
opposed them by reporting them to the state. Further, Wendi Solorio testified that
she believed the cartel targeted her father and her family “because they thought
that [her] dad had made a report or something because [he] went to look for [his
missing brother] in jail.”
Despite Solorio Mejia’s argument and evidence that he feared persecution on
account of an imputed political opinion, the IJ only analyzed whether Solorio
Mejia faced or feared persecution on account of a political opinion which he held
directly. And although Mejia Solorio properly raised his imputed political opinion
claim on appeal, the BIA did not analyze it. Instead, the BIA purported to address
3 it by adopting and affirming the IJ’s “finding that the record does not establish that
anyone imputed a political opinion to [Solorio Mejia] and then sought to harm him
due to that opinion,” with a pincite to the IJ’s opinion. But because the IJ never
addressed Solorio Mejia’s argument regarding imputed political opinion, the BIA
did not cure the IJ’s error by referencing and adopting the IJ’s non-existent
reasoning.2
Accordingly, we hold that the BIA abused its discretion in ignoring Solorio
Mejia’s arguments and record evidence that he feared persecution on account of an
imputed political opinion, grant Solorio Mejia’s petition for review, and remand to
the BIA for consideration of this argument in the first instance.
2. Substantial evidence supports the BIA’s determination that Solorio Mejia is
not a member of the particular social group of “Mexicans who reported the cartels
to the police” because he “did not actually lodge a report against the cartels with
Mexican police.” We therefore deny Solorio Mejia’s petition for review of this
particular social group claim.
2 Indeed, the Board could not cure this error. The Board lacked authority to correct the IJ’s failure to make a factual determination about whether the cartel imputed a political opinion to Solorio Mejia. See Vitug v. Holder, 723 F.3d 1056, 1063 (9th Cir. 2013) (“If the IJ has left certain facts unresolved and the BIA believes that it cannot decide the case without them, it cannot make its own factual findings but instead ‘must remand to the IJ for further factual findings.’” (quoting Rodriguez v. Holder, 683 F.3d 1164, 1173 (9th Cir. 2012))).
4 3. We likewise deny Solorio Mejia’s petition for review of his claim of
membership in the particular social group of “family.” The BIA properly
determined that Solorio Mejia waived this argument because he did not raise it
before the IJ. See Honcharov v. Barr, 924 F.3d 1293, 1296–97 (9th Cir. 2019). A
petitioner’s failure to raise an issue before the BIA generally constitutes a failure to
exhaust, thus depriving us of jurisdiction to consider the issue. See Barron v.
Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). We therefore dismiss this claim for
lack of jurisdiction.
PETITION FOR REVIEW GRANTED in part, DENIED in part, DISMISSED in part, AND REMANDED for further proceedings.
5 FILED Solorio Mejia v. Barr, Case No. 17-71299 NOV 9 2020 Rawlinson, Circuit Judge, dissenting in part: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 9 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
GERARDO SOLORIO MEJIA, AKA No. 17-71299 Gerardo Solorio Torres; et al., Agency Nos. A078-756-910 Petitioners, A205-528-926 A205-528-927 v. A205-528-928
WILLIAM P. BARR, Attorney General, MEMORANDUM* Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted October 7, 2020 Portland, Oregon
Before: PAEZ and RAWLINSON, Circuit Judges, and ANTOON,** District Judge. Partial Dissent by Judge RAWLINSON
Petitioners Gerardo Solorio Mejia (“Solorio Mejia”), Adriana Tinajero
Hurtado, Wendi Guadalupe Solorio Tinajero, and Leiririana Solorio Tinajero
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable John Antoon II, United States District Judge for the Middle District of Florida, sitting by designation. (collectively “Petitioners”)1 petition for review of the Board of Immigration
Appeals’ (“BIA” or “Board”) decision denying their applications for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”).
We have jurisdiction under 8 U.S.C. § 1252. We grant the petition in part, deny it
in part, dismiss it in part, and remand for further proceedings.
We review factual findings for substantial evidence and “uphold the agency
determination unless the evidence compels a contrary conclusion.” Duran-
Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019). We review de novo
questions of law. Madrigal v. Holder, 716 F.3d 499, 503 (9th Cir. 2013). Failure of
the agency to address a claim “constitutes error and requires remand.” Rios v.
Lynch, 807 F.3d 1123, 1126 (9th Cir. 2015); see also Sagaydak v. Gonzales, 405
F.3d 1035, 1040 (9th Cir. 2005) (“IJs and the BIA are not free to ignore arguments
raised by a petitioner.”); Cole v. Holder, 659 F.3d 762, 771–72 (9th Cir. 2011)
(“[W]here 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.”).
1. The IJ and BIA erred in this case by failing to address the record evidence
and arguments regarding Solorio Mejia’s fear of harm on account of an imputed
political opinion. A petitioner can establish eligibility for asylum and withholding
1 Gerardo Solorio Mejia is the lead petitioner. His spouse, Adriana Tinajero Hurtado, and children are derivative beneficiaries in his applications for relief.
2 of removal by showing that he fears persecution on account of an imputed political
opinion. Singh v. Holder, 764 F.3d 1153, 1159 (9th Cir. 2014). Here, Solorio Mejia
presented evidence that he was targeted on this basis, and he argued the issue
before the IJ and BIA.
Soloria Mejia first raised this claim in his pre-hearing statement, where he
specifically argued that “[i]mputed political opinion can exist no matter what the
applicant’s actual opinion may be,” and described how an anti-cartel viewpoint
may have been imputed to him based on his actions and the notoriety of his family.
He then testified that the cartel began to surveil and menace Petitioners within a
few days of Solorio Mejia’s visit to a state-run morgue where he left his name and
contact information. He reasoned that the cartel had imputed to him a belief that he
opposed them by reporting them to the state. Further, Wendi Solorio testified that
she believed the cartel targeted her father and her family “because they thought
that [her] dad had made a report or something because [he] went to look for [his
missing brother] in jail.”
Despite Solorio Mejia’s argument and evidence that he feared persecution on
account of an imputed political opinion, the IJ only analyzed whether Solorio
Mejia faced or feared persecution on account of a political opinion which he held
directly. And although Mejia Solorio properly raised his imputed political opinion
claim on appeal, the BIA did not analyze it. Instead, the BIA purported to address
3 it by adopting and affirming the IJ’s “finding that the record does not establish that
anyone imputed a political opinion to [Solorio Mejia] and then sought to harm him
due to that opinion,” with a pincite to the IJ’s opinion. But because the IJ never
addressed Solorio Mejia’s argument regarding imputed political opinion, the BIA
did not cure the IJ’s error by referencing and adopting the IJ’s non-existent
reasoning.2
Accordingly, we hold that the BIA abused its discretion in ignoring Solorio
Mejia’s arguments and record evidence that he feared persecution on account of an
imputed political opinion, grant Solorio Mejia’s petition for review, and remand to
the BIA for consideration of this argument in the first instance.
2. Substantial evidence supports the BIA’s determination that Solorio Mejia is
not a member of the particular social group of “Mexicans who reported the cartels
to the police” because he “did not actually lodge a report against the cartels with
Mexican police.” We therefore deny Solorio Mejia’s petition for review of this
particular social group claim.
2 Indeed, the Board could not cure this error. The Board lacked authority to correct the IJ’s failure to make a factual determination about whether the cartel imputed a political opinion to Solorio Mejia. See Vitug v. Holder, 723 F.3d 1056, 1063 (9th Cir. 2013) (“If the IJ has left certain facts unresolved and the BIA believes that it cannot decide the case without them, it cannot make its own factual findings but instead ‘must remand to the IJ for further factual findings.’” (quoting Rodriguez v. Holder, 683 F.3d 1164, 1173 (9th Cir. 2012))).
4 3. We likewise deny Solorio Mejia’s petition for review of his claim of
membership in the particular social group of “family.” The BIA properly
determined that Solorio Mejia waived this argument because he did not raise it
before the IJ. See Honcharov v. Barr, 924 F.3d 1293, 1296–97 (9th Cir. 2019). A
petitioner’s failure to raise an issue before the BIA generally constitutes a failure to
exhaust, thus depriving us of jurisdiction to consider the issue. See Barron v.
Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). We therefore dismiss this claim for
lack of jurisdiction.
PETITION FOR REVIEW GRANTED in part, DENIED in part, DISMISSED in part, AND REMANDED for further proceedings.
5 FILED Solorio Mejia v. Barr, Case No. 17-71299 NOV 9 2020 Rawlinson, Circuit Judge, dissenting in part: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
I respectfully dissent from that portion of the disposition concluding that the
record supports assertion of an imputed political opinion as the basis of a fear of
harm for Petitioner Gerardo Solorio Mejia. The Board of Immigration Appeals
(BIA) “affirm[ed] the Immigration Judge’s finding that the record does not
establish that anyone imputed a political opinion to [Solorio Mejia].” In response,
Solorio Mejia argues that he “expressed opposition to the cartel criminal
organization by manifesting resistance to them.” However, this statement is
devoid of any evidence that the cartel imputed a political opinion to him.
Consequently, under the applicable standard of review, Solorio Mejia cannot
prevail, because we are not compelled to reach a conclusion contrary to that of the
BIA—that Solorio Mejia failed to establish on the record that anyone imputed a
political opinion to him. See Antonyan v. Holder, 642 F.3d 1250, 1254 (9th Cir.
2011) (articulating the substantial evidence standard).
Critically absent from the record in this case is any evidence that members
of the cartel were even aware of the actions relied upon by Solorio Mejia to assert
political opposition, namely “[seeking] justice by looking for his brother in
hospitals, jails and the state-run morgue.” He also maintained that he “brought on
1 the wrath of the cartel by . . . leaving his name and contact information with the
said state-run morgue” and “by evading . . . capture.” But, nowhere does Solorio
Mejia assert that the cartel was aware of his activities or that he openly expressed
disagreement with cartel ideology, voiced anti-cartel beliefs to any cartel member,
or participated publicly in anti-cartel activities. Cf. id. at 1255-56 (public
testimony known to the persecutor); Regalado-Escobar v. Holder, 717 F.3d 724,
730 (remarking that the petitioner “offered no evidence to show that his attackers
were even aware of his political beliefs”).
The record in this case is bereft of any evidence of open opposition by
Solorio Mejia, or any indication of the cartel’s awareness of any opposition by
Solorio Mejia. Under this circumstance, one simply cannot say that the evidence
compels a conclusion contrary to that reached by the BIA. Tellingly, neither
Solorio Mejia nor the majority cites a case with similar facts concluding that a
viable imputed political opinion claim exists. Cf. Santos-Lemus v. Mukasey, 542
F.3d 738, 747 (9th Cir. 2008) (rejecting a future persecution claim when there was
“no evidence in the record that [petitioners] were politically active or made any
anti-gang political statements”), abrogated on other grounds by Henriquez-Rivas v.
Holder, 707 F.3d 1081 (9th Cir. 2013). Because the majority’s analysis on this
issue finds no support in our precedent, I respectfully dissent.