Hernandez Lopez De Lopez v. Bondi

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 25, 2025
• Docket: 24-196
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 25 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JULIA MERCEDES HERNANDEZ No. 24-196 LOPEZ DE LOPEZ, et al., Agency Nos. A220-147-837 Petitioners, A220-147-838 A220-147-839 v.

PAMELA BONDI, Attorney General, MEMORANDUM*

Respondent.

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

Submitted February 11, 2025** Pasadena, California

Before: GRABER, HAMILTON***, and BUMATAY, Circuit Judges.

Petitioners Julia Mercedes Lopez de Lopez and her children, M.Y.L.H. and

C.J.L.H., are natives and citizens of Guatemala. They seek review of a decision by

* 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). *** The Honorable David F. Hamilton, United States Circuit Judge for the Court of Appeals, Seventh Circuit, sitting by designation. the Board of Immigration Appeals (“BIA”) affirming the denial by an immigration

judge (“IJ”) of their applications for asylum, withholding of removal, and

protection under the Convention Against Torture (“CAT”). We have jurisdiction

under 8 U.S.C. § 1252(a).

Where, as here, the BIA issues its own decision and does not adopt the IJ’s

decision, we review only the BIA’s decision. Aden v. Holder, 589 F.3d 1040, 1043

(9th Cir. 2009). We review factual findings underlying the BIA’s determination of

eligibility for asylum, withholding of removal, and CAT relief for substantial

evidence. Plancarte Sauceda v. Garland, 23 F.4th 824, 831 (9th Cir. 2022).

Under substantial evidence review, we reverse the BIA’s factual findings if the

evidence compels a different conclusion from the one reached by the BIA. Xiao

Fei Zheng v. Holder, 644 F.3d 829, 835 (9th Cir. 2011) (citing INS v. Elias-

Zacarias, 502 U.S. 478, 481 n.1 (1992)). We review de novo the BIA’s

determinations of questions of law. Hamazaspyan v. Holder, 590 F.3d 744, 747

(9th Cir. 2009). We grant the petition in part, deny it in part, and remand for

further proceedings.

1. The BIA erred when it declined to address the merits of Petitioners’

proposed social group of “Guatemalan women.”1 Petitioners’ brief to the BIA

1 On appeal, Petitioners do not raise any other proposed social groups, so their claims based on the other groups are waived. Rizk v. Holder, 629 F.3d 1083, 1091

2 24-196 sufficiently challenged the IJ’s determination, thereby exhausting administrative

remedies for their proposed social group argument. A petitioner exhausts remedies

on her claim if “the BIA was sufficiently on notice so that it ‘had an opportunity to

pass on th[e] issue.’” Bare v. Barr, 975 F.3d 952, 960 (9th Cir. 2020) (quoting

Zhang v. Ashcroft, 388 F.3d 713, 721 (9th Cir. 2004) (per curiam)). In Zhang, we

held that the fact that a petitioner “explicitly mentioned in his brief to the BIA that

he was requesting reversal of the IJ’s denial of relief under the Convention Against

Torture” was sufficient to preserve the claim. See Zhang, 388 F.3d at 721; see also

Rios v. Lynch, 807 F.3d 1123, 1126 (9th Cir. 2015) (rejecting the government’s

argument that petitioner for asylum and withholding of removal failed to exhaust

his proposed social group when the petitioner raised his claim in his brief to the

BIA).

Here, Petitioners exhausted their challenge to the IJ’s denial of asylum and

withholding of removal based on the proposed social group of “Guatemalan

women.” In their brief to the BIA, Petitioners listed the required elements of a

particular social group, quoted case law interpreting the requirements, and applied

case law to their proposed social group. See AR 13–15. Because Petitioners’ brief

n.3 (9th Cir. 2011) (a petitioner waives an issue by failing to raise it in the opening brief).

3 24-196 “put the BIA on notice of what was being challenged,” Bare, 975 F.3d at 960, the

BIA erred when it declined to address Petitioners’ arguments on the merits.

2. Under SEC v. Chenery Corp., we do not determine in the first instance

Petitioners’ eligibility for asylum and withholding of removal, including the

viability of their proposed particular social group of “Guatemalan women.” See

318 U.S. 80, 88 (1943) (“If an order is valid only as a determination of policy or

judgment which the agency alone is authorized to make and which it has not made,

a judicial judgment cannot be made to do service for an administrative

judgment.”); see also INS v. Orlando Ventura, 537 U.S. 12, 16–18 (2002) (per

curiam) (finding that the circuit court erred by resolving petitioner’s applications

for asylum and withholding of removal instead of remanding to BIA for

consideration of arguments in first instance). The Supreme Court has instructed us

to “remand a case to an agency for decision of a matter that statutes place primarily

in agency hands.” Orlando Ventura, 537 U.S. at 16. “This principle has obvious

importance in the immigration context,” id. at 16–17, and, because the BIA has not

yet addressed a critical issue raised by Petitioners, we apply it here.

3. The BIA did not err in denying Petitioners’ CAT claim because

Petitioners’ evidence of generalized violence toward women in Guatemala is

insufficient for CAT protection. This evidence does not show that Petitioners will

more likely than not suffer harm “inflicted by” the Guatemalan government “or at

4 24-196 the instigation of or with the consent or acquiescence of a public official or other

person acting in an official capacity.” Singh v. Whitaker, 914 F.3d 654, 662 (9th

Cir. 2019) (citations and internal quotation marks omitted); see id. at 662–63

(upholding denial of CAT claim because petitioner’s evidence of general violence

in home country did not make probability of future torture more likely than not);

see also B.R. v. Garland, 26 F.4th 827, 845 (9th Cir. 2022) (upholding denial of

CAT claim where petitioner “did not cite any direct evidence that the Mexican

government or local Mexican officials are aware of and have acquiesced in any

cartel plan to torture [him]” and instead relied “only on generalized country reports

and news clippings”).

PETITION GRANTED IN PART, DENIED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS.

5 24-196