Marcos Aguilar-Rodriguez v. Jefferson Sessions

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 19, 2017
• Docket: 15-72473
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 19 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARCOS ANTONIO AGUILAR- No. 15-72473 RODRIGUEZ, Agency No. A200-289-337 Petitioner,

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 July 12, 2017 San Francisco, California

Before: GRABER and FRIEDLAND, Circuit Judges, and MARSHALL,** District Judge.

Marcos Antonio Aguilar-Rodriguez (“Aguilar”), a native and citizen of El

Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA”) order

upholding the immigration judge’s (“IJ”) denial of Aguilar’s application for

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Consuelo B. Marshall, United States District Judge for the Central District of California, sitting by designation. withholding of removal and denying Aguilar’s motion to remand and reopen his

applications for asylum and protection under the Convention Against Torture

(“CAT”). We have jurisdiction under 8 U.S.C. § 1252, and we deny in part, grant

in part, and remand.

1. The BIA determined that Aguilar was not entitled to withholding of

removal because he failed to establish persecution on account of a protected

ground. See 8 U.S.C. § 1231(b)(3)(A). Aguilar sought relief based on membership

in the social group consisting of “former Salvadoran gang members with gang

tattoos.” The BIA concluded that group was not legally cognizable because,

among other reasons, it found no record evidence demonstrating that the proffered

group was perceived as a socially distinct group within Salvadoran society.1 See

Reyes v. Lynch, 842 F.3d 1125, 1131, 1136-37 (9th Cir. 2016) (holding that an

applicant must show that his proposed social group is “socially distinct within the

society in question” (quoting Matter of M–E–V–G–, 26 I. & N. Dec. 227, 237

(B.I.A. 2014))). Because the record evidence does not compel a contrary

conclusion, we may not reverse that finding. See id. at 1137-38.

1 To the extent Aguilar contests his need to prove “social distinction,” we recently held that the BIA’s present articulation of the legal standard for a cognizable “particular social group,” including the “social distinction” requirement, is entitled to Chevron deference. Reyes, 842 F.3d at 1136-37. Because the BIA’s social distinction finding is dispositive of Aguilar’s application, we need not address whether Aguilar’s social group satisfies other elements of that test.

2 2. Aguilar cannot make out a prima facie claim for asylum based on

membership in that group for the same reason. See 8 U.S.C. § 1158(b)(1)(B)(i)

(requiring an asylum applicant to demonstrate persecution or fear of persecution on

account of a protected ground). Because Aguilar did not meet his burden of

establishing prima facie entitlement to asylum relief, the BIA did not abuse its

discretion in denying reopening of that application. See Ochoa-Amaya v. Gonzales,

479 F.3d 989, 992 (9th Cir. 2006), as amended (9th Cir. 2007).

3. The BIA did abuse its discretion, however, by summarily denying

Aguilar’s motion to remand and reopen his CAT claim. See, e.g., Mohammed v.

Gonzales, 400 F.3d 785, 792-93 (9th Cir. 2005). The BIA refused to reopen that

application because it determined that Aguilar had not made out a prima facie

claim for CAT relief or established that he faces “appreciably different” risks than

other Salvadorans. But the record does not support those conclusions: Aguilar

submitted evidence of changed country conditions that bear on whether it is

reasonably likely he would be tortured or killed if he returns to El Salvador

because his gang tattoos will make him a target under the aggressive anti-gang

policies of the recently elected Salvadoran government, which has authorized

searches for and the detention of persons with gang tattoos, sanctioned the use of

lethal force against gang members, and engaged in reported extrajudicial killings

of suspected gang members.

3 The BIA abused its discretion in denying Aguilar’s motion without

addressing any of that evidence or adequately explaining why it did not show “that

it would be worthwhile to develop the issues further at a plenary hearing on

reopening,” Ordonez v. INS, 345 F.3d 777, 785 (9th Cir. 2003) (quoting Matter of

S–V–, 22 I. & N. Dec. 1306, 1308 (B.I.A. 2000)). See Mohammed, 400 F.3d at

792-93 (holding that the BIA “must issue a decision that fully explains the reasons

for denying a motion to reopen” and “address in its entirety the evidence submitted

by a petitioner”); Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005)

(holding that the BIA abused its discretion in denying a motion to reopen “without

articulating its reasons”). We accordingly grant the petition in part and remand.

PETITION FOR REVIEW DENIED in part, GRANTED in part, and

REMANDED. The parties shall bear their own costs on review.