Marvila Estrada Adame v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 13, 2019
• Docket: 18-72420
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 13 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARVILA ESTRADA ADAME; et al., No. 18-72420

Petitioners, Agency Nos. A206-678-712 A206-678-713 v. A206-678-714 A206-678-734 WILLIAM P. BARR, Attorney General,

Respondent. MEMORANDUM*

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

Submitted December 11, 2019**

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

Marvila Estrada Adame, her husband, and their minor children, natives and

citizens of Mexico, petition for review of the Board of Immigration Appeals’

(“BIA”) order dismissing their appeal from an immigration judge’s (“IJ”) decision

denying their applications for asylum and withholding of removal. We have

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

* 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). agency’s factual findings. Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir.

2006). We deny in part and grant in part the petition for review.

The BIA did not err in declining to consider the two proposed particular

social groups that petitioners raised for the first time to the BIA. See Honcharov v.

Barr, 924 F.3d 1293, 1297 (9th Cir. 2019) (per curiam) (BIA did not err in

declining to consider argument raised for the first time on appeal); see also Matter

of W-Y-C- & H-O-B-, 27 I. & N. Dec. 189, 190-91 (BIA 2018) (where the IJ did

not have an opportunity to make relevant factual findings, the BIA cannot do so in

the first instance on appeal).

Substantial evidence supports the agency’s determination that petitioners

failed to establish a nexus between their religion, including a related pacifist

ideology, and the harm they experienced or fear in Mexico. See INS v. Elias-

Zacarias, 502 U.S. 478, 483 (1992) (an applicant “must provide some evidence of

[motive], direct or circumstantial” (emphasis in original)); see also Zetino v.

Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (“An [applicant’s] desire to be free

from harassment by criminals motivated by theft or random violence by gang

members bears no nexus to a protected ground.”).

The BIA failed to address petitioners’ contention that they established a

nexus between the harm they experienced and fear and an imputed political

opinion based on a perceived association with the Knights Templar. See Sagaydak

2 18-72420 v. Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005) (“[T]he BIA [is] not free to

ignore arguments raised by a petitioner.”).

Thus, we grant the petition for review and remand for the BIA to consider

petitioners’ imputed political opinion claim in the first instance. See INS v.

Ventura, 537 U.S. 12, 16-18 (2002) (per curiam); Coronado v. Holder, 759 F.3d

977, 987 (9th Cir. 2014).

PETITION FOR REVIEW DENIED in part; GRANTED in part;

REMANDED.

3 18-72420