Martha Alvarez-Cruz v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 29, 2022
• Docket: 20-71553
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUN 29 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARTHA ALVAREZ-CRUZ, No. 20-71553

Petitioner, Agency No. A205-519-171

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Argued and Submitted June 6, 2022 Portland, Oregon

Before: EBEL,** W. FLETCHER, and CLIFTON, Circuit Judges.

Petitioner Martha Alvarez-Cruz, a citizen of Honduras, petitions for review

of the Board of Immigration Appeals’s (“BIA”) dismissal of her appeal from the

Immigration Judge’s (“IJ”) denial of her application for withholding of removal

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable David M. Ebel, United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. and protection under the Convention Against Torture (“CAT”). We have

jurisdiction under 8 U.S.C. § 1252. “We review for substantial evidence factual

findings underlying the BIA’s determination that a petitioner is not eligible

for . . . withholding of removal[] or CAT relief.” Plancarte Sauceda v. Garland,

23 F.4th 824, 831 (9th Cir. 2022) (citing Davila v. Barr, 968 F.3d 1136, 1141 (9th

Cir. 2020)).

Petitioner has sought recognition of two proposed particular social

groups—“Honduran women unable to leave a domestic relationship” and

“Honduran women.” “Generally speaking, a court of appeals should remand a case

to an agency for decision of a matter that statutes place primarily in agency hands.”

INS v. Orlando Ventura, 537 U.S. 12, 16 (2002) (per curiam). Where there has

been an intervening change in the law, we have remanded cases to the BIA. See,

e.g., Pannu v. Holder, 639 F.3d 1225, 1229 (9th Cir. 2011). In Matter of A-B-, the

BIA restored as precedent the holding that “married women in Guatemala who are

unable to leave their relationship” can constitute a cognizable particular social

group. See Matter of A-B-, 28 I. & N. Dec. 307 (BIA 2021); Matter of A-R-C-G-,

26 I. & N. Dec. 388 (BIA 2014). Matter of A-B- is directly relevant to Petitioner’s

proposed particular social group of “Honduran women unable to leave a domestic

relationship,” and the government seeks a remand as to that proposed group.

2 Petitioner has also proposed “Honduran women” as a particular social group. We

therefore grant the petition and remand for the agency to determine whether either

(or both) “Honduran women unable to leave a domestic relationship” or

“Honduran women” is a cognizable particular social group.

The government waived any opposition to CAT relief by failing to oppose

such relief in its brief to this court. See Aguilar-Turicos v. Holder, 740 F.3d 1294,

1302 n.11 (9th Cir. 2014) (“By failing to raise this argument in any of its several

briefing opportunities before this court, the government waived its argument that

we should remand to the Board . . . .”); Barbosa v. Barr, 926 F.3d 1053, 1059 (9th

Cir. 2019). We therefore grant the petition and remand for the BIA to grant

deferral of removal pursuant to CAT. See Soto-Soto v. Garland, 1 F.4th 655, 663

(9th Cir. 2021) (citing Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1188 (9th Cir.

2020)).

PETITION GRANTED and REMANDED.