NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 10 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MATEO JESUS-PEDRO, No. 21-70104
Petitioner, Agency No. A097-610-816
v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted November 16, 2022 Pasadena, California
Before: WARDLAW and W. FLETCHER, Circuit Judges, and KORMAN,** District Judge.
Mateo Jesus-Pedro (“Jesus-Pedro”), a native and citizen of Guatemala,
appeals from a decision of the Board of Immigration Appeals (“BIA”) affirming
the Immigration Judge’s (“IJ”) denial of his 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 Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. and protection under the Convention Against Torture (“CAT”). We have
jurisdiction under 8 U.S.C. § 1252. “Where, as here, the BIA agrees with the IJ’s
reasoning, we review both decisions.” Garcia-Martinez v. Sessions, 886 F.3d 1291,
1293 (9th Cir. 2018). Reviewing the factual findings of the BIA and IJ for
substantial evidence and their legal conclusions de novo, see Flores Molina v.
Garland, 37 F.4th 626, 632 (9th Cir. 2022), we grant in part and deny in part the
petition for review.
1. Contrary to Jesus-Pedro’s argument, the BIA and the IJ applied the
correct legal standard in denying his withholding claim. A person seeking
withholding of removal must show that “his life or freedom will be threatened in
his home country, [and] also that the threat is ‘because of’ one of the five listed
reasons”—race, religion, nationality, membership in a particular social group, or
political opinion. Barajas-Romero v. Lynch, 846 F.3d 351, 356 (9th Cir. 2017)
(citing 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 208.16(b)). Congress amended the
asylum statute to require that a protected ground be “at least one central reason”
for the applicant’s persecution, 8 U.S.C. § 1158(b)(1)(B)(i), but made no such
amendment to the withholding statute, 8 U.S.C. § 1231(b)(3)(C). We have
interpreted Congress’s different treatment of the two statutes as establishing
distinct legal standards. See Barajas-Romero, 846 F.3d at 358–59. Specifically, a
petitioner seeking withholding of removal must show that his protected ground was
2 a reason, not one central reason for the persecution. Id. at 360.
While the BIA stated only that Jesus-Pedro failed to establish “the requisite
nexus” between the claimed persecution and particular social group, it cited to
Barajas-Romero, 846 F.3d at 360, in which we held that the withholding statute’s
“‘a reason’ standard is a less demanding standard than ‘one central reason’” under
the asylum statute. The IJ acknowledged that the one central reason standard does
not apply here and that Jesus-Pedro need only show that the protected ground was
“a reason” for the alleged harm. Because “the BIA recognized that different
standards could be relevant in adjudicating claims of persecution under the two
separate statutes,” Martinez-Sanchez v. INS, 794 F.2d 1396, 1398 (9th Cir. 1986)
(citation and internal quotation marks omitted), the correct legal standard was
applied to the withholding claim.
2. The BIA and IJ failed to adequately address Jesus-Pedro’s argument
that he established a nexus between past or feared future persecution and his
proposed particular social group based on familial ties to his father. “IJs and the
BIA are not free to ignore arguments raised by a petitioner.” Sagaydak v.
Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005). We have held that the BIA and IJ’s
failure to address an argument raised by a petitioner can constitute reversible error.
See id. This occurred here.
Specifically, the BIA and IJ incorrectly characterized the nexus between
3 Jesus-Pedro’s claimed persecution and his proposed particular social group.
Moreover, the BIA and IJ failed to analyze whether Jesus-Pedro’s proposed
particular social group is cognizable. The BIA cited to Zetino v. Holder, 622 F.3d
1007, 1016 (9th Cir. 2010), and Matter of A-B-I, 27 I. & N. Dec. 316, 339 (A.G.
2018), superseded by Matter of A-B-III, 28 I. & N. Dec. 307 (A.G. 2021), which
concern whether victims of gang violence can establish nexus based on
membership in a particular social group. The BIA then disposed of Jesus-Pedro’s
proposed particular social group in a footnote, stating that “[i]n light of [the]
holding [that Jesus-Pedro failed to establish nexus], we do not address whether the
proposed family-based particular social group is cognizable.” But Jesus-Pedro did
not claim to be part of a particular social group related to victims of crime or
opposition to gang recruitment.
The BIA also failed to clearly state its reasoning for denying Jesus-Pedro’s
withholding claim so as to permit our review. “Due process and this court’s
precedent require a minimum degree of clarity in dispositive reasoning and in the
treatment of a properly raised argument.” Su Hwa She v. Holder, 629 F.3d 958,
963 (9th Cir. 2010), superseded by statute on other grounds as stated in Ming Dai
v. Sessions, 884 F.3d 858, 867 n.8 (9th Cir. 2018). Although the substantial
evidence standard of review is “highly deferential,” Marcu v. INS, 147 F.3d 1078,
1080 (9th Cir. 1998), we have emphasized that the BIA must “announce its
4 decision in terms sufficient to enable a reviewing court to perceive that it has heard
and thought and not merely reacted.” Najmabadi v. Holder, 597 F.3d 983, 990 (9th
Cir. 2010) (citation and internal quotation marks omitted).
In the BIA’s decision, more than half the paragraph disposing of the
withholding claim is devoted to a string citation of case law regarding an irrelevant
issue—whether victims of crimes or gang opponents can form a cognizable
particular social group. Only one sentence refers to the particulars of Jesus-Pedro’s
case (“The applicant fears harm in Guatemala by gang members and claims
membership in a family-based particular social group.”).
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 10 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MATEO JESUS-PEDRO, No. 21-70104
Petitioner, Agency No. A097-610-816
v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted November 16, 2022 Pasadena, California
Before: WARDLAW and W. FLETCHER, Circuit Judges, and KORMAN,** District Judge.
Mateo Jesus-Pedro (“Jesus-Pedro”), a native and citizen of Guatemala,
appeals from a decision of the Board of Immigration Appeals (“BIA”) affirming
the Immigration Judge’s (“IJ”) denial of his 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 Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. and protection under the Convention Against Torture (“CAT”). We have
jurisdiction under 8 U.S.C. § 1252. “Where, as here, the BIA agrees with the IJ’s
reasoning, we review both decisions.” Garcia-Martinez v. Sessions, 886 F.3d 1291,
1293 (9th Cir. 2018). Reviewing the factual findings of the BIA and IJ for
substantial evidence and their legal conclusions de novo, see Flores Molina v.
Garland, 37 F.4th 626, 632 (9th Cir. 2022), we grant in part and deny in part the
petition for review.
1. Contrary to Jesus-Pedro’s argument, the BIA and the IJ applied the
correct legal standard in denying his withholding claim. A person seeking
withholding of removal must show that “his life or freedom will be threatened in
his home country, [and] also that the threat is ‘because of’ one of the five listed
reasons”—race, religion, nationality, membership in a particular social group, or
political opinion. Barajas-Romero v. Lynch, 846 F.3d 351, 356 (9th Cir. 2017)
(citing 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 208.16(b)). Congress amended the
asylum statute to require that a protected ground be “at least one central reason”
for the applicant’s persecution, 8 U.S.C. § 1158(b)(1)(B)(i), but made no such
amendment to the withholding statute, 8 U.S.C. § 1231(b)(3)(C). We have
interpreted Congress’s different treatment of the two statutes as establishing
distinct legal standards. See Barajas-Romero, 846 F.3d at 358–59. Specifically, a
petitioner seeking withholding of removal must show that his protected ground was
2 a reason, not one central reason for the persecution. Id. at 360.
While the BIA stated only that Jesus-Pedro failed to establish “the requisite
nexus” between the claimed persecution and particular social group, it cited to
Barajas-Romero, 846 F.3d at 360, in which we held that the withholding statute’s
“‘a reason’ standard is a less demanding standard than ‘one central reason’” under
the asylum statute. The IJ acknowledged that the one central reason standard does
not apply here and that Jesus-Pedro need only show that the protected ground was
“a reason” for the alleged harm. Because “the BIA recognized that different
standards could be relevant in adjudicating claims of persecution under the two
separate statutes,” Martinez-Sanchez v. INS, 794 F.2d 1396, 1398 (9th Cir. 1986)
(citation and internal quotation marks omitted), the correct legal standard was
applied to the withholding claim.
2. The BIA and IJ failed to adequately address Jesus-Pedro’s argument
that he established a nexus between past or feared future persecution and his
proposed particular social group based on familial ties to his father. “IJs and the
BIA are not free to ignore arguments raised by a petitioner.” Sagaydak v.
Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005). We have held that the BIA and IJ’s
failure to address an argument raised by a petitioner can constitute reversible error.
See id. This occurred here.
Specifically, the BIA and IJ incorrectly characterized the nexus between
3 Jesus-Pedro’s claimed persecution and his proposed particular social group.
Moreover, the BIA and IJ failed to analyze whether Jesus-Pedro’s proposed
particular social group is cognizable. The BIA cited to Zetino v. Holder, 622 F.3d
1007, 1016 (9th Cir. 2010), and Matter of A-B-I, 27 I. & N. Dec. 316, 339 (A.G.
2018), superseded by Matter of A-B-III, 28 I. & N. Dec. 307 (A.G. 2021), which
concern whether victims of gang violence can establish nexus based on
membership in a particular social group. The BIA then disposed of Jesus-Pedro’s
proposed particular social group in a footnote, stating that “[i]n light of [the]
holding [that Jesus-Pedro failed to establish nexus], we do not address whether the
proposed family-based particular social group is cognizable.” But Jesus-Pedro did
not claim to be part of a particular social group related to victims of crime or
opposition to gang recruitment.
The BIA also failed to clearly state its reasoning for denying Jesus-Pedro’s
withholding claim so as to permit our review. “Due process and this court’s
precedent require a minimum degree of clarity in dispositive reasoning and in the
treatment of a properly raised argument.” Su Hwa She v. Holder, 629 F.3d 958,
963 (9th Cir. 2010), superseded by statute on other grounds as stated in Ming Dai
v. Sessions, 884 F.3d 858, 867 n.8 (9th Cir. 2018). Although the substantial
evidence standard of review is “highly deferential,” Marcu v. INS, 147 F.3d 1078,
1080 (9th Cir. 1998), we have emphasized that the BIA must “announce its
4 decision in terms sufficient to enable a reviewing court to perceive that it has heard
and thought and not merely reacted.” Najmabadi v. Holder, 597 F.3d 983, 990 (9th
Cir. 2010) (citation and internal quotation marks omitted).
In the BIA’s decision, more than half the paragraph disposing of the
withholding claim is devoted to a string citation of case law regarding an irrelevant
issue—whether victims of crimes or gang opponents can form a cognizable
particular social group. Only one sentence refers to the particulars of Jesus-Pedro’s
case (“The applicant fears harm in Guatemala by gang members and claims
membership in a family-based particular social group.”).
Nor did the IJ’s decision provide sufficiently clear reasoning. The IJ’s
determination of Jesus-Pedro’s withholding claim focused on whether “opposition
to gang members or gang recruitment” could form a nexus to a protected ground
and whether “victims of crime” could be a cognizable social group. The IJ’s order
stated it did not believe Jesus-Pedro “was being targeted by the gang members
because he is a member of a particular family. The gang members were extorting
him because they are criminals.” The IJ did not support this holding with specific
reasons, evidence, or citations to the record.
We have granted petitions and remanded to the BIA for failure to analyze
whether a family-based particular social group is cognizable. See, e.g., Rios v.
Lynch, 807 F.3d 1123, 1126 (9th Cir. 2015) (holding that the BIA’s failure to
5 address whether petitioner’s claimed membership in a social group comprising his
family members is cognizable was “a failure that constitutes error and requires
remand”). Accordingly, we grant in part the petition and remand to the BIA to
determine whether Jesus-Pedro’s claimed particular social groups—“immediate
family members of Alfredo Nicolas Jesus Leon” and “children of United States
permanent residents”—are cognizable.
3. Jesus-Pedro has waived review of the denial of CAT protection by
failing to raise his CAT claim in his opening brief. “Issues raised in a brief that are
not supported by argument are deemed abandoned.” Martinez-Serrano v. INS, 94
F.3d 1256, 1259 (9th Cir. 1996). “We address only issues which are argued
specifically and distinctly in a party’s opening brief.” Chadd v. United States, 794
F.3d 1104, 1110 n.4 (9th Cir. 2015) (citation and internal quotation marks
omitted). Jesus-Pedro declined to file an optional reply brief, in which he could
have answered the Attorney General’s arguments regarding the CAT claim.
Moreover, Jesus-Pedro joined the Attorney General’s motion to this Court to
submit the case on the briefs without oral argument. Because none of these actions
by Jesus-Pedro demonstrate an intent to raise his claim for CAT protection to this
Court, the issue is waived.
PETITION GRANTED IN PART, DENIED IN PART, AND
REMANDED. Each party shall bear its own costs. See Fed. R. App. P. 39(a)(4).