Marcos Aguilar-Rodriguez v. Jefferson Sessions ( 2017 )

NOT FOR PUBLICATION FILED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.
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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.
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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.
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