Ives Villanueva-Rodriguez v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 24 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
IVES ANTOBELI VILLANUEVA- No. 20-72990
RODRIGUEZ; ANGELA MARTINEZ
CAMPOS; et al., Agency Nos. A201-749-697
A201-749-695
Petitioners, A201-749-696
A213-188-217
v. A213-188-218
MERRICK B. GARLAND, Attorney
General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 17, 2022**
Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.
Ives Antobeli Villanueva-Rodriguez, Angela Martinez Campos, and their
children, natives and citizens of Honduras, petition pro se for review of the Board
of Immigration Appeals’ order dismissing their appeal from an immigration
*
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).
judge’s decision denying their applications for asylum, withholding of removal,
and relief under the Convention Against Torture (“CAT”). We have jurisdiction
under 8 U.S.C. § 1252. We review de novo the legal question of whether a
particular social group is cognizable, except to the extent that deference is owed to
the BIA’s interpretation of the governing statutes and regulations. Conde Quevedo
v. Barr, 947 F.3d 1238, 1241-42 (9th Cir. 2020). We review for substantial
evidence the agency’s factual findings. Id. at 1241. We grant the petition for
review, and remand.
The BIA erred in concluding that petitioners failed to establish the
cognizability of a particular social group based on employment because it did not
make the requisite case-by-case determination. See Plancarte Sauceda v. Garland,
23 F.4th 824, 833 (9th Cir. 2022) (BIA erred by concluding that an employment-
based group was not cognizable without meaningful analysis); Diaz-Reynoso v.
Barr, 968 F.3d 1070, 1087-88 (9th Cir. 2020) (BIA erred by failing to conduct the
requisite cognizability analysis). Thus, we grant the petition for review with
respect to petitioners’ asylum and withholding of removal claims and remand to
the agency for further proceedings consistent with this decision. See INS v.
Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).
As to CAT relief, the agency found that petitioners failed to establish the
requisite state action and they could relocate to avoid torture. Substantial evidence
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does not support these findings. See 8 C.F.R. §§ 1208.16(c)(3), 1208.18(a)(1), (7);
Plancarte Sauceda, 23 F.4th at 835 (record compelled the conclusion that the
applicant established official involvement and acquiescence in the cartel’s
activity); Vasquez-Rodriguez v. Garland, 7 F.4th 888, 898-99 (9th Cir. 2021)
(agency’s CAT findings not supported by substantial evidence where noncitizen
was not similarly situated to unharmed relative, and agency did not adequately
consider noncitizen’s credible testimony). Thus, we grant the petition for review
with respect to petitioners’ CAT claims and remand for further proceedings
consistent with this decision. See Ventura, 537 U.S. at 16-18; Vasquez-Rodriguez,
7 F.4th at 898-99.
Petitioners’ removal is stayed pending a decision by the BIA.
The government must bear the costs for this petition for review.
PETITION FOR REVIEW GRANTED; REMANDED.
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