Ives Villanueva-Rodriguez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 24, 2022
• Docket: 20-72990
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 24 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

IVES ANTOBELI VILLANUEVA- No. 20-72990 RODRIGUEZ; ANGELA MARTINEZ CAMPOS; et al., Agency Nos. A201-749-697 A201-749-695 Petitioners, A201-749-696 A213-188-217 v. A213-188-218

MERRICK B. GARLAND, Attorney General, MEMORANDUM*

Respondent.

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

Submitted May 17, 2022**

Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.

Ives Antobeli Villanueva-Rodriguez, Angela Martinez Campos, and their

children, natives and citizens of Honduras, petition pro se for review of the Board

of Immigration Appeals’ order dismissing their appeal from an immigration

* 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). judge’s 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 review de novo the legal question of whether a

particular social group is cognizable, except to the extent that deference is owed to

the BIA’s interpretation of the governing statutes and regulations. Conde Quevedo

v. Barr, 947 F.3d 1238, 1241-42 (9th Cir. 2020). We review for substantial

evidence the agency’s factual findings. Id. at 1241. We grant the petition for

review, and remand.

The BIA erred in concluding that petitioners failed to establish the

cognizability of a particular social group based on employment because it did not

make the requisite case-by-case determination. See Plancarte Sauceda v. Garland,

23 F.4th 824, 833 (9th Cir. 2022) (BIA erred by concluding that an employment-

based group was not cognizable without meaningful analysis); Diaz-Reynoso v.

Barr, 968 F.3d 1070, 1087-88 (9th Cir. 2020) (BIA erred by failing to conduct the

requisite cognizability analysis). Thus, we grant the petition for review with

respect to petitioners’ asylum and withholding of removal claims and remand to

the agency for further proceedings consistent with this decision. See INS v.

Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).

As to CAT relief, the agency found that petitioners failed to establish the

requisite state action and they could relocate to avoid torture. Substantial evidence

2 20-72990 does not support these findings. See 8 C.F.R. §§ 1208.16(c)(3), 1208.18(a)(1), (7);

Plancarte Sauceda, 23 F.4th at 835 (record compelled the conclusion that the

applicant established official involvement and acquiescence in the cartel’s

activity); Vasquez-Rodriguez v. Garland, 7 F.4th 888, 898-99 (9th Cir. 2021)

(agency’s CAT findings not supported by substantial evidence where noncitizen

was not similarly situated to unharmed relative, and agency did not adequately

consider noncitizen’s credible testimony). Thus, we grant the petition for review

with respect to petitioners’ CAT claims and remand for further proceedings

consistent with this decision. See Ventura, 537 U.S. at 16-18; Vasquez-Rodriguez,

7 F.4th at 898-99.

Petitioners’ removal is stayed pending a decision by the BIA.

The government must bear the costs for this petition for review.

PETITION FOR REVIEW GRANTED; REMANDED.

3 20-72990