Ma Guadalupe Parra Santacruz v. Merrick Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 19 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MA GUADALUPE PARRA SANTACRUZ, No. 20-72819
Petitioner, Agency No. A208-926-475
v.
MERRICK B. GARLAND, Attorney MEMORANDUM*
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 16, 2021
Submission Vacated June 9, 2022
Resubmitted January 11, 2023
Pasadena, California
Before: BERZON and RAWLINSON, Circuit Judges, and ANTOON,** District
Judge. Concurrence by Judge RAWLINSON.
Ma. Guadalupe Parra Santacruz, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (BIA’s) order dismissing her appeal
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable John Antoon II, United States District Judge for the
Middle District of Florida, sitting by designation.
from an Immigration Judge’s decision denying her application for asylum,
withholding of removal, and relief under the Convention Against Torture (CAT).1
We have jurisdiction under 8 U.S.C. § 1252 and review “denials of asylum,
withholding of removal, and CAT relief for substantial evidence.” Yali Wang v.
Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017). We grant the petition and remand.2
1. The agency’s adverse credibility determination is not supported by
substantial evidence. Mrs. Parra provided detailed, complex, and coherent
testimony about the kidnapping and eventual murder of her son, her fruitless
attempts to compel a serious police investigation, and threats she received from
both government officials and suspected cartel members as she investigated the
case herself. The inconsistencies highlighted by the agency are either trivial in light
of other evidence, adequately explained by Mrs. Parra, or not inconsistent at all.
The agency’s determination that certain parts of Mrs. Parra’s testimony were
implausible is itself implausible. Finally, while Mrs. Parra and her older son did lie
to border officials about whether they had previously resided in the United States
and whether they knew the whereabouts of Mrs. Parra’s husband—who was then
1
On May 25, 2022, this Court severed and dismissed Petitioners David
Villasenor Parra and Joram Villasenor Parra from this petition for review. Dkt. No.
43.
2
Mrs. Parra’s argument that the Immigration Judge lacked jurisdiction
over her removal proceedings because of deficiencies in her Notice to Appear is
foreclosed by this Court’s en banc decision in United States v. Bastide-Hernandez,
39 F.4th 1187, 1193 (9th Cir. 2022) (en banc).
2
living illegally in the United States—these misrepresentations are explainable by a
fear of persecution and an understandable desire to protect Mrs. Parra’s husband
from deportation. The statements do little to undermine the core of Mrs. Parra’s
testimony under the totality of circumstances. See Alam v. Garland, 11 F.4th 1133,
1135 (9th Cir. 2021) (“[U]nder the REAL ID Act, credibility determinations are
made—and must be reviewed—based on the ‘totality of the circumstances and all
relevant factors,’ not a single factor.”).
2. The agency’s determination that Mrs. Parra did not establish a nexus
between the harm she fears and her membership in her proposed family-based
social groups is also unsupported by substantial evidence. Contrary to the agency’s
suggestion, Mrs. Parra never alleged that her son was “kidnapped and killed other
than for criminal reasons.” Instead, she alleged both past persecution and a fear of
future persecution on account of her status as a family member who “openly
reported and/or independently investigated [those] criminal acts.” Mrs. Parra’s
testimony that she was repeatedly threatened by suspected cartel members and
government officials who urged her to drop her investigative efforts is sufficient to
establish a nexus between the harm she fears and her proposed social groups.
Because the BIA did not reach the question whether Mrs. Parra’s proposed
particular social groups were cognizable, we do not address that issue.
3. The agency’s determination that Mrs. Parra failed to meet her burden
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of proof to demonstrate eligibility for relief under CAT was improper. The agency
erred by failing to consider Mrs. Parra’s significant country conditions evidence,
including newspaper articles, a State Department country report, and signed
declarations from two expert witnesses. See Aguilar-Ramos v. Holder, 594 F.3d
701, 705 (9th Cir. 2010). The agency must reconsider Mrs. Parra’s CAT claim in
light of that evidence and the remainder of this disposition, including the rejection
of the agency’s adverse credibility determination. Id. at 706.
For these reasons, we grant the petition and remand for further proceedings
consistent with this disposition. See INS v. Ventura, 537 U.S. 12, 16–18 (2002)
(per curiam).
Petition GRANTED; REMANDED.
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FILED
Parra Santacruz v. Garland, Case No. 20-72819 JAN 19 2023
Rawlinson, Circuit Judge, concurring: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I agree with the majority’s conclusion that this case should be remanded for
the agency to conform its adverse credibility determination to our recent decision
in Alam v. Garland, 11 F4th 1133, 1135 (9th Cir. 2021) (requiring that credibility
determinations be made “based on the totality of the circumstances and all relevant
factors”) (citation omitted).
I also agree that the Immigration Judge had jurisdiction to conduct the
proceedings as determined in our recent en banc decision, United States v. Bastide-
Hernandez, 39 F.4th 1187, 1193 (9th Cir. 2022) (en banc).
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