FILED NOT FOR PUBLICATION FEB 24 2025 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OSCAR MEZA-GARCIA, No. 23-3438
Petitioner, Agency No. A087-458-886
v. MEMORANDUM* PAMELA BONDI, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted November 5, 2024** Phoenix, Arizona
Before: HAWKINS, TASHIMA, and OWENS, Circuit Judges.
Petitioner Oscar Meza-Garcia, a native and citizen of Mexico, petitions for
review of a decision of the Board of Immigration Appeals (BIA). The BIA
dismissed Petitioner’s appeal of a decision of the Immigration Judge (IJ), who
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2)(C). denied his application for withholding of removal and protection under the
Convention Against Torture (CAT). We have jurisdiction pursuant to 8 U.S.C.
§ 1252, and we grant the petition.
1. The agency’s adverse credibility finding is not supported by
substantial evidence. See Munyuh v. Garland, 11 F.4th 750, 758 (9th Cir. 2021)
(“We review adverse credibility determinations under the substantial-evidence
standard.”). The BIA relied primarily on a purported inconsistency between
Petitioner’s interview before the asylum officer and his testimony before the IJ.
However, Petitioner’s answer to the asylum officer’s question of whether he was
physically abused or harmed was that the Zetas pointed their guns at him and
swore at him, which is consistent with his testimony before the IJ that the Zetas
pushed him and pointed a gun at him. See id. (stating that, although review of a
credibility finding is deferential, there are “limits to the deference we owe the
agency,” and that “[t]he credibility determination must ‘be “reasonable” and “take
into consideration the individual circumstances” of the applicant’” (quoting
Shrestha v. Holder, 590 F.3d 1034, 1041 (9th Cir. 2010))).
The agency’s reasons for the adverse credibility finding are based on
impermissible speculation and conjecture. The IJ found it not credible that
Petitioner would temporarily go to Monterrey without his wife, that he would
2 return to his business after fleeing to Monterrey, and that he would leave Orizaba.
But, the IJ’s reasoning is speculative and not supported by substantial evidence
because Petitioner explained the reasons for those decisions. See Joseph v. Holder,
600 F.3d 1235, 1245–46 (9th Cir. 2010) (concluding that the IJ erred when she
“improperly speculated that [the immigrant] never intended to travel to Mexico to
study computer science,” and that “[t]he IJ and BIA engaged in speculation when
they assumed that [the immigrant’s] failure to leave Haiti sooner undermined his
credibility”); Li v. Holder, 559 F.3d 1096, 1103 (9th Cir. 2009) (stating that the
IJ’s “scatter-shot justifications for his adverse credibility determination . . . are
riddled with speculation,” such as the IJ’s finding that he did not understand why
the immigrant did not “want to stay in South Korea, especially given that ‘he
speaks Korean fluently and is of Korean nationality’”).
Because the adverse credibility finding is not supported by substantial
evidence, we grant the petition and remand for the BIA to consider whether, “if
[Petitioner] were deemed credible, he would have established eligibility for . . .
withholding of removal[] or protection under the CAT.” Iman v. Barr, 972 F.3d
1058, 1069 (9th Cir. 2020); see also Joseph, 600 F.3d at 1247 (where the adverse
credibility finding was not supported by substantial evidence, granting the petition
3 and remanding for the BIA “to determine whether, accepting [the petitioner’s]
testimony as credible, he is eligible for relief”).
2. On remand, the BIA should reconsider its internal relocation analysis
because it conflated the relocation analysis for withholding of removal and CAT.
See Akosung v. Barr, 970 F.3d 1095, 1101 (9th Cir. 2020) (explaining that the
consideration of relocation in the CAT context differs from relocation in the
asylum and withholding of removal contexts because, unlike asylum and
withholding of removal, “[t]he CAT regulation does not bar relief if an applicant
could relocate”); see also Tzompantzi-Salazar v. Garland, 32 F.4th 696, 705 (9th
Cir. 2022) (“Indeed, the asylum and CAT regulations with respect to the relocation
factor ‘differ markedly.’” (quoting Maldonado v. Lynch, 786 F.3d 1155, 1163 (9th
Cir. 2015) (en banc))). The BIA also must reconsider its relocation analysis
because, in the context of asylum and withholding of removal, the burden shifts
from the petitioner to the government if the applicant establishes past persecution.
Here the BIA did not consider burden shifting due to its adverse credibility finding.
Singh v. Garland, 97 F.4th 597, 606–07 (9th Cir. 2024); Singh v. Whitaker, 914
F.3d 654, 659 (9th Cir. 2019); see 8 C.F.R. §1208.16(b)(1)(ii).
3. The BIA failed to consider Petitioner’s evidence supporting his CAT
claim, such as the evidence regarding his business location and the government’s
4 unwillingness to control the Zetas, stating that the only evidence supporting his
claim was his “discredited testimony” and “general reports.” See Bhattarai v.
Lynch, 835 F.3d 1037, 1047 (9th Cir. 2016) (“We note that an adverse credibility
determination in the asylum context does not necessarily support denial of an
applicant’s CAT claim.”). The agency also should reconsider Petitioner’s CAT
claim on remand because of the improper relocation analysis. See Singh, 97 F.4th
at 609 (stating that “[w]here . . . the BIA erred in its relocation analysis, we do not
ignore the error to see if substantial evidence nevertheless supports the agency’s
determination”).
4. The Board also should reconsider its denial of Petitioner’s request for
administrative closure. Contrary to the BIA’s statement that the primary
consideration is the likelihood of the applicant’s success on the petition or
application, in 2021, the agency reiterated “that ‘the primary consideration for an
Immigration Judge in determining whether to administratively close’ a case over a
party’s objection ‘is whether the party opposing administrative closure has
provided a persuasive reason for the case to proceed and be resolved on the
merits.’” Matter of Cruz-Valdez, 28 I. & N. Dec. 326, 329 (U.S. Att’y Gen. 2021)
(quoting Matter of W-Y-U-, 27 I. & N. Dec. 17, 20 (BIA 2017)).
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FILED NOT FOR PUBLICATION FEB 24 2025 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OSCAR MEZA-GARCIA, No. 23-3438
Petitioner, Agency No. A087-458-886
v. MEMORANDUM* PAMELA BONDI, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted November 5, 2024** Phoenix, Arizona
Before: HAWKINS, TASHIMA, and OWENS, Circuit Judges.
Petitioner Oscar Meza-Garcia, a native and citizen of Mexico, petitions for
review of a decision of the Board of Immigration Appeals (BIA). The BIA
dismissed Petitioner’s appeal of a decision of the Immigration Judge (IJ), who
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2)(C). denied his application for withholding of removal and protection under the
Convention Against Torture (CAT). We have jurisdiction pursuant to 8 U.S.C.
§ 1252, and we grant the petition.
1. The agency’s adverse credibility finding is not supported by
substantial evidence. See Munyuh v. Garland, 11 F.4th 750, 758 (9th Cir. 2021)
(“We review adverse credibility determinations under the substantial-evidence
standard.”). The BIA relied primarily on a purported inconsistency between
Petitioner’s interview before the asylum officer and his testimony before the IJ.
However, Petitioner’s answer to the asylum officer’s question of whether he was
physically abused or harmed was that the Zetas pointed their guns at him and
swore at him, which is consistent with his testimony before the IJ that the Zetas
pushed him and pointed a gun at him. See id. (stating that, although review of a
credibility finding is deferential, there are “limits to the deference we owe the
agency,” and that “[t]he credibility determination must ‘be “reasonable” and “take
into consideration the individual circumstances” of the applicant’” (quoting
Shrestha v. Holder, 590 F.3d 1034, 1041 (9th Cir. 2010))).
The agency’s reasons for the adverse credibility finding are based on
impermissible speculation and conjecture. The IJ found it not credible that
Petitioner would temporarily go to Monterrey without his wife, that he would
2 return to his business after fleeing to Monterrey, and that he would leave Orizaba.
But, the IJ’s reasoning is speculative and not supported by substantial evidence
because Petitioner explained the reasons for those decisions. See Joseph v. Holder,
600 F.3d 1235, 1245–46 (9th Cir. 2010) (concluding that the IJ erred when she
“improperly speculated that [the immigrant] never intended to travel to Mexico to
study computer science,” and that “[t]he IJ and BIA engaged in speculation when
they assumed that [the immigrant’s] failure to leave Haiti sooner undermined his
credibility”); Li v. Holder, 559 F.3d 1096, 1103 (9th Cir. 2009) (stating that the
IJ’s “scatter-shot justifications for his adverse credibility determination . . . are
riddled with speculation,” such as the IJ’s finding that he did not understand why
the immigrant did not “want to stay in South Korea, especially given that ‘he
speaks Korean fluently and is of Korean nationality’”).
Because the adverse credibility finding is not supported by substantial
evidence, we grant the petition and remand for the BIA to consider whether, “if
[Petitioner] were deemed credible, he would have established eligibility for . . .
withholding of removal[] or protection under the CAT.” Iman v. Barr, 972 F.3d
1058, 1069 (9th Cir. 2020); see also Joseph, 600 F.3d at 1247 (where the adverse
credibility finding was not supported by substantial evidence, granting the petition
3 and remanding for the BIA “to determine whether, accepting [the petitioner’s]
testimony as credible, he is eligible for relief”).
2. On remand, the BIA should reconsider its internal relocation analysis
because it conflated the relocation analysis for withholding of removal and CAT.
See Akosung v. Barr, 970 F.3d 1095, 1101 (9th Cir. 2020) (explaining that the
consideration of relocation in the CAT context differs from relocation in the
asylum and withholding of removal contexts because, unlike asylum and
withholding of removal, “[t]he CAT regulation does not bar relief if an applicant
could relocate”); see also Tzompantzi-Salazar v. Garland, 32 F.4th 696, 705 (9th
Cir. 2022) (“Indeed, the asylum and CAT regulations with respect to the relocation
factor ‘differ markedly.’” (quoting Maldonado v. Lynch, 786 F.3d 1155, 1163 (9th
Cir. 2015) (en banc))). The BIA also must reconsider its relocation analysis
because, in the context of asylum and withholding of removal, the burden shifts
from the petitioner to the government if the applicant establishes past persecution.
Here the BIA did not consider burden shifting due to its adverse credibility finding.
Singh v. Garland, 97 F.4th 597, 606–07 (9th Cir. 2024); Singh v. Whitaker, 914
F.3d 654, 659 (9th Cir. 2019); see 8 C.F.R. §1208.16(b)(1)(ii).
3. The BIA failed to consider Petitioner’s evidence supporting his CAT
claim, such as the evidence regarding his business location and the government’s
4 unwillingness to control the Zetas, stating that the only evidence supporting his
claim was his “discredited testimony” and “general reports.” See Bhattarai v.
Lynch, 835 F.3d 1037, 1047 (9th Cir. 2016) (“We note that an adverse credibility
determination in the asylum context does not necessarily support denial of an
applicant’s CAT claim.”). The agency also should reconsider Petitioner’s CAT
claim on remand because of the improper relocation analysis. See Singh, 97 F.4th
at 609 (stating that “[w]here . . . the BIA erred in its relocation analysis, we do not
ignore the error to see if substantial evidence nevertheless supports the agency’s
determination”).
4. The Board also should reconsider its denial of Petitioner’s request for
administrative closure. Contrary to the BIA’s statement that the primary
consideration is the likelihood of the applicant’s success on the petition or
application, in 2021, the agency reiterated “that ‘the primary consideration for an
Immigration Judge in determining whether to administratively close’ a case over a
party’s objection ‘is whether the party opposing administrative closure has
provided a persuasive reason for the case to proceed and be resolved on the
merits.’” Matter of Cruz-Valdez, 28 I. & N. Dec. 326, 329 (U.S. Att’y Gen. 2021)
(quoting Matter of W-Y-U-, 27 I. & N. Dec. 17, 20 (BIA 2017)). The BIA did not
5 address whether the government had provided a persuasive reason for the case to
proceed.
Administrative closure has been applied “to pause cases while the United
States Citizenship and Immigration Services . . . adjudicates a noncitizen’s pending
visa petition, or a noncitizen facing removal on criminal grounds pursues direct
appeal or post-conviction relief in criminal court.” Id. at 326–27. Similar to
Petitioner’s U visa application, the results of a pending visa petition or criminal
appeal are uncertain, “outside the control of the parties or the court and may not
occur for a significant or undetermined period of time.” Gonzalez-Caraveo v.
Sessions, 882 F.3d 885, 889 (9th Cir. 2018) (quoting Matter of Avetisyan, 25 I. &
N. Dec. 688, 695 (BIA 2012)). The BIA thus abused its discretion by failing to
consider the most important factor and by denying Petitioner’s request on the basis
that “it cannot be determined whether [Petitioner] is likely to be granted the U visa,
and whether such event would occur within a reasonable period of time.” Those
two factors are, in fact, considerations that make administrative closure
appropriate. See Gonzalez-Caraveo, 882 F.3d at 889 (“Generally, administrative
closure is proper when the parties are ‘await[ing] an action or event that is relevant
to immigration proceedings but is outside the control of the parties or the court and
6 may not occur for a significant or undetermined period of time.’” (quoting
Avetisyan, 25 I. & N. Dec. at 692)).
The petition for review is GRANTED and the matter is REMANDED.