Oliverto Pirir-Boc v. Eric Holder, Jr. , 750 F.3d 1077 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OLIVERTO PIRIR-BOC, No. 09-73671
Petitioner,
Agency No.
v. A200-033-237
ERIC H. HOLDER, JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
February 10, 2014—San Francisco, California
Filed May 7, 2014
Before: Stephen Reinhardt and Sidney R. Thomas, Circuit
Judges, and William K. Sessions, District Judge.*
Opinion by Judge Reinhardt
*
The Honorable William K. Sessions III, District Judge for the U.S.
District Court for the District of Vermont, sitting by designation.
2 PIRIR-BOC V. HOLDER
SUMMARY**
Immigration
The panel granted a petition for review of the Board of
Immigration Appeals’ denial of asylum, withholding of
removal, and protection under the Convention Against
Torture, and remanded for further consideration in light of
Henriquez-Rivas v. Holder, 707 F.3d 1081, 1083 (2013) (en
banc), Matter of W-G-R-, 26 I. & N. Dec. 208 (2014), and
Matter of M-E-V-G-, 26 I. & N. Dec. 227 (2014).
Petitioner asserted a fear of persecution by gangs in
Guatemala on account of his membership in a particular
social group characterized as individuals “taking concrete
steps to oppose gang membership and gang authority.” The
panel first held that the Board’s recent decisions in Matter of
W-G-R and Matter of M-E-V-G did not affect the construction
of social group set forth by the en banc court in Henriquez-
Rivas, with the qualification that the persecutors’ perception
is not itself enough to make a group socially distinct, and
persecutory conduct alone cannot define the group, rather, the
persecutor’s perspective is one factor among others to be
considered in determining a group’s social visibility.
The panel noted that the critical issue in each of the new
Board decisions is whether there is evidence to support social
recognition of the proposed group, and the panel explained
that to be consistent with its own precedent, the Board may
not reject a group solely because it previously found a similar
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
PIRIR-BOC V. HOLDER 3
group in a different society to lack social distinction or
particularity. Because the Board in this case did not perform
the required evidence-based inquiry as to whether
Guatemalan society recognizes petitioner’s proposed social
group, the panel remanded to the Board for reconsideration in
light of Henriquez-Rivas, Matter of W-G-R and Matter of M-
E-V-G.
The panel explicitly did not decide whether the Board’s
requirements of “social distinction” and “particularity”
constitute a reasonable interpretation of the term “particular
social group.”
The panel remanded petitioner’s CAT claim for the Board
to provide a reasoned explanation of the basis for its decision.
COUNSEL
Roger S. Green (argued) and Jenny Tsai, Green & Tsai, San
Francisco, California, for Petitioner.
Dawn S. Conrad (argued), Sarah L. Vuong, and Kimberly A.
Burdge, Trial Attorneys; Song Park, Senior Litigation
Counsel; Tony West and Stuart F. Delery, Assistant
Attorneys General; Emily Anne Radford, Assistant Director,
United States Department of Justice, Office of Immigration
Litigation, Civil Division, Washington, D.C., for Respondent.
4 PIRIR-BOC V. HOLDER
OPINION
REINHARDT, Circuit Judge:
Oliverto Pirir-Boc (“Pirir-Boc”) was granted asylum by
the Immigration Judge (“IJ”) based on his well-founded fear
of persecution as a member of a particular social group
characterized as individuals “taking concrete steps to oppose
gang membership and gang authority.” The Board of
Immigration Appeals (“BIA”) vacated the grant of asylum on
the ground that Pirir-Boc’s “purported social group lacks the
requisite particularity and social visibility.” Pirir-Boc filed a
petition for review. After briefing was complete, this court
issued the en banc decision, Henriquez-Rivas v. Holder,
707 F.3d 1081, 1083 (2013) (en banc), holding that
“witnesses who testify against gang members” may be
cognizable as a particular social group for the purposes of
asylum. We then ordered supplemental briefing in this case.
Three days before oral argument, the BIA issued two
published decisions designed to clarify its interpretation of
the phrase “particular social group”: Matter of W-G-R-, 26 I.
& N. Dec. 208 (2014), and Matter of M-E-V-G-, 26 I. & N.
Dec. 227 (2014). We hold that these two decisions do not
affect the validity of Henriquez-Rivas, and we remand Pirir-
Boc’s petition to the BIA for consideration in light of W-G-R-
, M-E-V-G-, and Henriquez-Rivas.
I
The IJ granted Pirir-Boc asylum after finding his
testimony credible. Pirir-Boc is a native and citizen of
Guatemala who identifies as Cakchiquel, an indigenous
minority ethnic group, and did not learn Spanish until age 10.
He was recruited by the Mara Salvatrucha, a violent Central
PIRIR-BOC V. HOLDER 5
American gang, but refused to join. His younger brother,
however, joined the gang and pledged himself to it for life.
Pirir-Boc viewed the Mara Salvatrucha as “criminals who
rape women and rob people” and disapproved of his brother’s
decision to join. Within the hearing of members of the Mara
Salvatrucha, Pirir-Boc told his brother that he must leave the
gang. Pirir-Boc was eventually able to help his brother defect
and move to their grandparents’ village, three hours away.
After his brother left the gang, members of the Mara
Salvatrucha came looking for Pirir-Boc at his home several
times. He sent his wife and small child away and went into
hiding in the cliffs. Gang members continued to look for him
at all hours, but he evaded them by not returning home.
When Mara Salvatrucha members had not come to his house
for eight days, Pirir-Boc returned. Ten or eleven gang
members caught him and beat him severely, telling him that
“[he has] to die.” He continues to suffer effects from that
beating.
Out of the “fear of losing [his] life” and never being able
to “sleep in [his] own house” again, Pirir-Boc fled Guatemala
with his younger brother. His wife subsequently informed
him that the Mara Salvatrucha was still looking for him in
Guatemala.
The IJ found Pirir-Boc eligible for asylum based on his
past persecution and his well-founded fear of future
persecution “on account of his membership in a particular
social group of persons taking concrete steps to oppose gang
6 PIRIR-BOC V. HOLDER
membership and gang authority.”1 She found that Pirir-Boc
“took specific action to dissuade his brother from continuing
in his membership in a criminal gang” and,
by taking this action, allied himself with a
particular social group of persons directly in
opposition to gang activities and gang
membership. Although [Pirir-Boc] does not
belong to an organization, per se, the Country
Reports and background material . . . indicate
that there are concerted efforts in Guatemala
to combat gang activity. The Court notes that
voluntarily associating oneself with a group
may be evidence of membership in a
particular social group.
The IJ also found that Pirir-Boc “has been visible and
outspoken in his actions against the gang.” In addition, she
found that the authorities in Guatemala were unwilling or
unable to protect him. The IJ did not consider whether Pirir-
Boc was eligible for relief under the Convention Against
Torture (“CAT”), noting that he had not applied for such
relief.
The government appealed the IJ’s decision, and the BIA
sustained the appeal and vacated the IJ’s finding of eligibility.
The BIA incorporated the IJ’s fact-finding in its decision,
noting that “[t]he facts of this case are not in dispute.” It then
1
The IJ denied Pirir-Boc’s application for asylum on the basis of his
indigenous ethnicity and political opinion. Pirir-Boc does not challenge
that portion of the BIA’s ruling and we do not address it here.
PIRIR-BOC V. HOLDER 7
applied intervening authority from the BIA and this court2 to
those facts and held that the purported social group of “those
who have taken direct action to oppose criminal gangs” was
not meaningfully distinguishable from Salvadoran “youths
who have resisted gang recruitment, or family members of
such Salvadoran youth,” the group the BIA had rejected in
Matter of S-E-G-, 24 I. & N. Dec. 579, 582 (2008). The BIA
decided that “[a]lthough the respondent was seen by gang
members to tell his brother to leave the gang, his purported
social group lacks the requisite particularity and social
visibility” and reversed the IJ’s finding of eligibility. The
BIA denied Pirir-Boc’s claim for withholding of deportation
because he had failed to satisfy the less burdensome standard
for asylum. The BIA also rejected Pirir-Boc’s claim for relief
under the Convention Against Torture, finding that he had
“failed to establish a prima facie case for eligibility” for that
type of relief.
II
We review questions of law de novo. Cordoba v. Holder,
726 F.3d 1106, 1113 (9th Cir. 2013). Whether a group
constitutes a “particular social group” is a question of law.
Mendoza-Alvarez v. Holder, 714 F.3d 1161, 1163 (9th Cir.
2013). The BIA’s construction of ambiguous statutory terms
in precedential decisions is entitled to deference under
Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
2
The BIA applied S-E-G-, 24 I. & N. Dec. 579, which was decided after
the IJ’s decision but before W-G-R-, 26 I. & N. Dec. 208, and M-E-V-G-,
26 I. & N. Dec. 227. It also noted Ramos-Lopez v. Holder, 563 F.3d 855
(9th Cir. 2009), and Santos-Lemus v. Mukasey, 542 F.3d 738 (9th Cir.
2008), which were issued following the IJ’s decision in Pirir-Boc’s case
but before our en banc decision in Henriquez-Rivas, which partially
overruled them. Henriquez-Rivas, 707 F.3d at 1093.
8 PIRIR-BOC V. HOLDER
467 U.S. 837, 844 (1984). Henriquez-Rivas, 707 F.3d at
1087; Lezama-Garcia v. Holder, 666 F.3d 518, 524 (9th Cir.
2011). We must accept the BIA’s construction if it is
reasonable. Henriquez-Rivas, 707 F.3d at 1087 (citing Nat’l
Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545
U.S. 967, 980 (2005)).
III
A
A petitioner is eligible for asylum if he is determined to
be a refugee within the meaning of section 101(a)(42)(A) of
the Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 1101(a)(42)(A). An individual qualifies as a refugee when
he is “unable or unwilling to return to [his last country of
residence] . . . because of persecution or a well-founded fear
of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.”
INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A); Cordoba,
726 F.3d at 1108.
Pirir-Boc’s petition involves the construction of the term
“particular social group.” Since the BIA considered Pirir-
Boc’s petition, the term has been interpreted in an en banc
decision of this court, Henriquez-Rivas v. Holder, 707 F.3d
1081 (2013), and in two published decisions by the BIA, W-
G-R-, 26 I. & N. Dec. 208 (2014), and M-E-V-G-, 26 I. & N.
Dec. 227 (2014). We first consider whether the BIA’s new
decisions affect the interpretation we set forth in Henriquez-
Rivas, and conclude that Henriquez-Rivas remains valid in
both holding and reasoning, with one minor qualification.
PIRIR-BOC V. HOLDER 9
Prior to Henriquez-Rivas, the BIA defined “particular
social group” as a group (1) that consisted of people who
share an “immutable characteristic ‘so fundamental to one’s
identity that a person should not be required to abandon it,’”3
Henriquez-Rivas, 707 F.3d at 1084 (quoting Hernandez-
Montiel v. INS, 225 F.3d 1084, 1093 (9th Cir. 2000)); and
(2) that had what the BIA called “social visibility” and
“particularity.” Henriquez-Rivas, 707 F.3d at 1084–85. In S-
E-G-, the BIA had found that a proposed social group of
“Salvadoran youth who have been subjected to recruitment
efforts by MS-13 and who have rejected or resisted
membership in the gang based on their own personal, moral,
and religious opposition to the gang’s values and activities”
did not have “particularity” because it was too “amorphous,”
and that it did not have “social visibility” because there was
little evidence that such youths would be “perceived as a
group by society.” Henriquez-Rivas, 707 F.3d at 1085; S-E-
G-, 24 I. & N. Dec. at 584–85, 587.
In Henriquez-Rivas we considered whether witnesses who
testify against gang members constitute a particular social
group under the BIA’s precedent. 707 F.3d at 1081. As in
Pirir-Boc’s case, the IJ found Henriquez-Rivas eligible for
asylum but the BIA reversed that determination, holding that
3
“Immutability” is not at issue here, and, in any event, Pirir-Boc’s
proposed group clearly satisfies the BIA’s standard. The steps Pirir-Boc
took in opposition to the gang are a “shared past experience” and
“something . . . that cannot be changed.” W-G-R-, 26 I. & N. Dec. at
212–13 (“In Acosta we determined that any characteristic that defines a
particular social group must be immutable . . . . The defining characteristic
can be an innate characteristic or a shared past experience. The critical
requirement is that the defining characteristic of the group must be
something that either cannot be changed or that the group members should
not be required to change in order to avoid persecution.”).
10 PIRIR-BOC V. HOLDER
the proposed social group “lacks the requisite social
visibility.” Id. at 1091. The BIA did not fully explain its
position, but instead cited S-E-G- and other cases now subject
to the revised standard of W-G-R- and M-E-V-G-. Id. We
vacated the BIA’s decision, holding that the BIA had
“erroneously assumed” that the putative social group was not
cognizable under its precedent, and that because of this
erroneous assumption, the BIA had ignored “significant
evidence” that Salvadoran society recognizes the group in
question as a particular social group. Id. at 1092. We noted
that the evidence before the BIA strongly suggested that the
putative group had sufficient social visibility—which, we
clarified, refers to “‘perception’ rather than ‘on-sight
visibility,’”4 id. at 1089, 1092–93—and sufficient
particularity to be cognizable. We remanded to the BIA for
further proceedings so that it could consider that evidence.
Id. at 1094.
The BIA took up these issues in a pair of precedential
decisions. In W-G-R-, the BIA considered the putative social
4
The BIA agreed with this clarification in W-G-R- and M-E-V-G-, and
changed the name of the concept from “social visibility” to “social
distinction” in order to emphasize that a social group need not be
“ocularly visible” but instead must “exist as a recognized component of
the society in question.” W-G-R-, 26 I. & N. Dec. at 217; M-E-V-G-, 26
I. & N. Dec. at 240–41. “To have the ‘social distinction’ necessary to
establish a particular social group, there must be evidence showing that
society in general perceives, considers, or recognizes persons sharing the
particular characteristic to be a group.” W-G-R-, 26 I. & N. Dec. at 217.
“Social distinction” thus appears to be equivalent to our interpretation of
“social visibility” in Henriquez-Rivas, 707 F.3d at 1088–89 (requiring
“that the shared characteristic generally be recognizable by other members
of the community, or evidence that members of the proposed group would
be perceived as a group by society.”) (internal quotation marks and
citations omitted).
PIRIR-BOC V. HOLDER 11
group of “former members of the Mara 18 gang in El
Salvador who have renounced their gang membership” and
rejected it as a social group due to a lack of evidence to that
effect introduced at the proceedings. 26 I. & N. Dec. at 221.
The BIA rejected the group on the ground that the record
contained no evidence demonstrating that Salvadoran society
recognized former gang members who have renounced their
gang membership as a distinct social group. Id. at 222. The
record contained “documentary evidence describing gangs,
gang violence, and the treatment of gang members but very
little documentation discussing the treatment or status of
former gang members.” Id. The “scant evidence” provided
by W-G-R- was insufficient to meet the social distinction
requirement. Id. The BIA also found that the proposed group
lacked particularity because “the boundaries of a group are
not sufficiently definable unless the members of society
generally agree on who is included in the group, and evidence
that the social group proposed . . . is recognized within the
society is lacking in this case.” Id. at 221. “The group would
need further specificity to meet the particularity
requirement.” Id.
In M-E-V-G-, decided on the same day as W-G-R-, the
BIA declined to make a ruling on whether Honduran youths
who were actively recruited by gangs but who refused to join
constituted a particular social group because further fact-
finding was required. 26 I. & N. Dec. at 251. The BIA stated
that there is no “blanket rejection of all factual scenarios
involving gangs” and that “[s]ocial group determinations are
made on a case-by-case basis.” Id. Because the BIA’s
“guidance on particular social group claims ha[d] been
clarified” since the IJ had last considered the question, it
remanded the case to “enable the Immigration Judge to
12 PIRIR-BOC V. HOLDER
engage in any fact-finding that may be necessary to resolve
the issues in this case.” Id. at 251–52.5
The new BIA decisions W-G-R- and M-E-V-G- are
consistent6 with Henriquez-Rivas, in which the thrust of our
5
Although the BIA did not explain why it decided not to remand W-G-
R- for further fact-finding but did so in M-E-V-G-, it seems apparent that
there was no purpose in a remand in the former case because the BIA held
that there was no nexus and thus no reason to develop further facts as to
the social group issue. W-G-R-, 26 I. & N. Dec. at 223.
6
The new BIA decisions are consistent with Henriquez-Rivas, with one
qualification. In Henriquez-Rivas, we suggested that the perspective of
the persecutor may be the most important perspective in determining
whether a group has sufficient social visibility or distinction, but left it to
the BIA to decide that issue in the first instance. 707 F.3d at 1089. In the
new decisions, the BIA declined to adopt this suggestion. It decided that
“the persecutors’ perception is not itself enough to make a group socially
distinct, and persecutory conduct alone cannot define the group,” but
allowed that the persecutor’s perspective is one factor among others to be
considered in determining a group’s social visibility. M-E-V-G-, 26 I. &
N. Dec. at 242. The BIA noted, however, at least two ways in which the
“perception of the applicant’s persecutors may be relevant.” Id. First, the
persecution of a group may cause a group for the first time to recognize
itself and be recognized by society as a group. Id. For instance, taking the
example of a proposed social group of former employees of a country’s
attorney general, the BIA explained that such employees may not consider
themselves to be a separate group until they are mistreated by a
persecutor. “Upon their maltreatment, it is possible that these people
would experience a sense of ‘group,’ and society would discern that this
group of individuals, who share a common immutable characteristic, is
distinct in some significant way.” Id. at 243. Second, the persecutor’s
perceptions may be relevant in cases involving persecution on account of
“imputed” grounds, where “one is erroneously thought to hold particular
political opinions or mistakenly believed to be a member of a particular
social group.” Id.
Thus, while the BIA did not give the persecutor’s perspective the
PIRIR-BOC V. HOLDER 13
holding was that the BIA had ignored specific evidence of
whether Salvadoran society considered witnesses who
testified against gang members to be a social group. The
critical issue in each of the new decisions is whether there is
evidence to support social recognition of the proposed group.
In W-G-R- the BIA refused to find a social group because
“evidence that the social group . . . is recognized within the
society is lacking in this case,” 26 I. & N. Dec. at 221, and in
M-E-V-G- the BIA determined that the case-by-case analysis
required remand for further factual development, 26 I. & N.
Dec. at 251. The rule that thus emerges is the following: To
determine whether a group is a particular social group for the
purposes of an asylum claim, the agency must make a case-
by-case determination as to whether the group is recognized
by the particular society in question. To be consistent with its
own precedent, the BIA may not reject a group solely because
it had previously found a similar group in a different society
to lack social distinction or particularity, especially where, as
here, it is presented with evidence showing that the proposed
group may in fact be recognized by the relevant society.7
same role in the analysis as the one we had recommended, it did give that
perspective an important place. Regardless, to the extent that W-G-R- and
M-E-V-G- do disagree with Henriquez-Rivas on this point, there is no real
conflict because we explicitly “le[ft] it to the BIA to decide this issue in
the first instance.” Henriquez-Rivas, 707 F.3d at 1089.
7
It is an error, for instance, to assume that if a social group related to the
same international gang, such as the Mara Salvatrucha, has been found
non-cognizable in one society, it will not be cognizable in any society.
Honduras, El Salvador, Guatemala, Nicaragua, and Panama have used
different strategies for combating gang violence, from anti-gang
legislation to social rehabilitation and prevention programs. These
different local responses to gangs in nations with distinct histories,
populations, and government structures, may well result in a different
social recognition of social groups opposed to gang violence, even if the
14 PIRIR-BOC V. HOLDER
Here, the BIA did not perform the required evidence-
based inquiry as to whether the relevant society recognizes
Pirir-Boc’s proposed social group. It failed to consider how
Guatemalan society views the proposed group, and it did not
consider the society-specific evidence submitted by Pirir-Boc
in the form of U.S. State Department Country Reports on
Guatemala, a Congressional Research Service Report for
Congress on Gangs in Central America with a section on
Guatemala, and background documents including news
articles and Amnesty International Reports on Guatemala.
The IJ, in contrast, did consider that evidence and found that
in openly opposing the Mara Salvatrucha in Guatemala, Pirir-
Boc “allied himself with a particular social group of persons
directly in opposition to gang activities.” The IJ found that
there were “concerted efforts in Guatemala to combat gang
activity” and that through his opposition to the Mara
Salvatrucha in that country, Pirir-Boc was “voluntarily
associating” himself with that group. These are the type of
findings that are relevant to determining “whether the people
of a given society would perceive a proposed group as
sufficiently separate or distinct to meet the ‘social distinction’
test.” M-E-V-G-, 26 I. & N. Dec. at 241. “Evidence such as
country conditions reports, expert witness testimony, and
press accounts of discriminatory laws and policies, historical
animosities, and the like may establish that a group exists and
is perceived as ‘distinct’ or ‘other’ in a particular society.”
Id.
Because it is not clear to us from the record whether the
evidence presented by Pirir-Boc is sufficient to meet the
revised standard in W-G-R- and M-E-V-G-, we remand the
petition to the BIA to consider Pirir-Boc’s asylum claim in
gang in question is the same.
PIRIR-BOC V. HOLDER 15
light of those decisions. See Cordoba, 726 F.3d at 1117.
Because Pirir-Boc’s claim for withholding of deportation was
denied solely on the basis of his failure to satisfy the burden
required for asylum, that claim is also remanded. We also
advise the BIA to consider Pirir-Boc’s petition in light of
Henriquez-Rivas, which addressed a group comparable to
Pirir-Boc’s proposed group and found it to be potentially
cognizable. In Henriquez-Rivas, the proposed group was
“witnesses who testify against gang members.” 707 F.3d at
1083. Here, the proposed group is “persons taking concrete
steps to oppose gang membership and gang authority.” The
concrete and open steps Pirir-Boc took in opposition to the
gang may fall within the framework of Henriquez-Rivas.
B
In remanding this case to the BIA, we do not decide
whether the BIA’s requirements of “social distinction” and
“particularity” constitute a reasonable interpretation of
“particular social group.” We owe deference to the agency’s
construction of an ambiguous term, but only if the
interpretation is reasonable. See Brand X Internet, 545 U.S.
at 981 (“If a statute is ambiguous, and if the implementing
agency’s construction is reasonable, Chevron requires a
federal court to accept the agency’s construction of the
statute, even if the agency’s reading differs from what the
court believes is the best statutory interpretation.”) (citation
omitted). If we were to conclude that the BIA’s interpretation
is not reasonable, we need not accept it; two circuits have in
fact heretofore invalidated the BIA’s previous formulation of
16 PIRIR-BOC V. HOLDER
the criteria of “particularity” and “social visibility.”8 In
Henriquez-Rivas, we held that the term “particular social
group” is ambiguous, but we declined to decide whether the
agency’s construction was reasonable. 707 F.3d at 1087,
1091.
Here, once again, we leave open the question of whether
the BIA’s construction of “particular social group” is
reasonable. First, we have not been asked to do so. Second,
and more important, as is clear from W-G-R- and M-E-V-G-,
the term is in flux, and it is premature to determine precisely
how the rule will be implemented. After the BIA has on
remand had the opportunity to apply the revised rule to this
case, we may be in a better position to determine whether its
revised construction of the term is reasonable.
IV
To qualify for CAT relief, Pirir-Boc must show that “it
is more likely than not that he . . . would be tortured if
removed” to Guatemala. Cole v. Holder, 659 F.3d 762, 770
(9th Cir. 2011) (quoting 8 C.F.R. § 208.16(c)(2)). He does
not need to show that he would be tortured on account of a
8
The Third and Seventh Circuits invalidated the pre-W-G-R-/M-E-V-G-
“particularity” and “social visibility” requirements on the ground that they
were inconsistent with prior BIA precedent and therefore were not entitled
to Chevron deference. See Valdiviezo-Galdamez v. Att’y Gen. of U.S.,
663 F.3d 582, 604 (3d Cir. 2011) (“Since the ‘social visibility’
requirement is inconsistent with past BIA decisions, we conclude that it
is an unreasonable addition to the requirements for establishing refugee
status where that status turns upon persecution on account of membership
in a particular social group.”); Gatimi v. Holder, 578 F.3d 611, 615 (7th
Cir. 2009) (holding that the interpretation of “social visibility” is
inconsistent with previous decisions and “makes no sense”).
PIRIR-BOC V. HOLDER 17
protected ground. Kamalthas v. I.N.S., 251 F.3d 1279, 1283
(9th Cir. 2001). The BIA denied Pirir-Boc relief under CAT
in a single sentence,9 stating that he “has failed to establish a
prima facie case for eligibility for relief under the Convention
Against Torture.” The BIA gave no explanation for its
decision; nor did it mention any evidence that it had
considered. “In order for the court to exercise our limited
authority, there must be a reasoned explanation by the BIA of
the basis for its decision.” Franco-Rosendo v. Gonzales,
454 F.3d 965, 966 (9th Cir. 2006) (citing Movsisian v.
Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005)). Under the
regulations, “[i]n making a CAT decision, . . . ‘all evidence
relevant to the possibility of future torture shall be
considered.” Cole, 659 F.3d at 771 (quoting 8 C.F.R.
1208.16(c)(3)). While the BIA is not required to “discuss
each piece of evidence submitted,” where there is “any
indication that the BIA did not consider all of the evidence
before it, a catchall phrase does not suffice, and the decision
cannot stand. Such indications include . . . failing to mention
highly probative or potentially dispositive evidence.” Id. at
771–72.
We therefore remand Pirir-Boc’s CAT claim to the BIA
for reconsideration. See Movsisian, 395 F.3d at 1099; Tapia
Madrigal v. Holder, 716 F.3d 499, 509 (9th Cir. 2013).
9
The IJ failed to grant Pirir-Boc relief under CAT because he did not
specifically request that relief. However, a CAT claim is sufficiently
raised when an alien declares his fear of future torture on his asylum
application and provides supporting evidence during the removal hearing.
Nuru v. Gonzales, 404 F.3d 1207, 1223 n.13 (9th Cir. 2005). Here, on his
I-589 asylum application, Pirir-Boc answered “yes” to the question “Are
you afraid of being subjected to torture in your home country . . . ?” He
also provided evidence in the form of a State Department Report that the
government would be unable or unwilling to protect him.
18 PIRIR-BOC V. HOLDER
*
For the reasons stated above, we grant Pirir-Boc’s petition
for review with respect to his claims for asylum based on a
particular social group, withholding of removal, and relief
under CAT, and remand the claims to the BIA for further
consideration consistent with this opinion.
Petition GRANTED and REMANDED.