Susana Pinhas v. Eric H. Holder Jr. , 529 F. App'x 811 ( 2013 )

FILED
NOT FOR PUBLICATION JUN 19 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SUSANA ELIZABETH PINHAS, AKA No. 08-71955
Marta Barrios Corrales, AKA Marta
Susana Pinhas, AKA Susanna Elizabeth Agency No. A098-445-277
Tello Davilla,
Petitioner, MEMORANDUM*
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued December 4, 2012; Submitted June 19, 2013
Pasadena, California
Before: WARDLAW, BEA, and N.R. SMITH, Circuit Judges.
Elizabeth Pinhas, a native and citizen of Peru, petitions for review of the
decision of the Board of Immigration Appeals (BIA) denying her petition for
asylum and vacating the Immigration Judge’s (IJ) order granting withholding of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
removal. We have jurisdiction under 8 U.S.C. § 1252(a)(1), and we grant the
petition for review.
Although the BIA initially concluded that Pinhas was ineligible for asylum
because her petition was untimely, the Government now concedes that the
application was timely in light of an intervening precedential BIA decision, Matter
of F-P-R-, 24 I & N Dec. 681, 683 (BIA 2008).
Both the BIA and the IJ erred by failing to “‘state [their] reasons and show
proper consideration of all factors’” in denying Pinhas relief in the form of asylum
as a matter of discretion. Gulla v. Gonzales, 498 F.3d 911 (9th Cir. 2007) (quoting
Kalubi v. Ashcroft, 364 F.3d 1134, 1137 (9th Cir. 2004)). The IJ concluded that
Pinhas was statutorily eligible for asylum except for the time-barred application,
but alternatively denied her asylum as a matter of discretion based on her use of
fraudulent documents to travel between the United States and Peru and to obtain
United States citizenship for her husband. The BIA summarily concluded that the
IJ “did not fail to weigh all the factors” in denying relief. However, the IJ failed to
consider any factors other than the use of the fraudulent documents. The IJ made
an express finding that Pinhas’s testimony was credible. Pinhas testified that she
fled Peru, using a valid visa, because narcotics traffickers threatened her for
voluntarily aiding the United States Drug Enforcement Agency in its efforts to
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combat narcotics trafficking by supplying an agent with logs of incoming and
outgoing calls among specified phone numbers from the cell phone company
where she worked. The agent also helped her obtain a passport and a visitor’s visa
at the U.S. Embassy. While in the United States, Pinhas learned that her mother
was still receiving anonymous phone calls that Pinhas believed were from the
narcotics traffickers. Although Pinhas feared returning to Peru, her father became
a “high risk” patient due to heart disease and diabetes. Wanting to visit her father,
she was afraid to travel with her own identification because the narcotics
traffickers had associates in customs who would alert the traffickers to her return,
and she was afraid that she would be killed. She traveled with the fraudulent
documents to Peru three times, twice while her father’s illness worsened, and then
to his funeral Since arriving in the United States, Pinhas has been consistently
employed and promoted. The IJ considered none of these factors in its
discretionary denial of asylum.
Although the IJ granted Pinhas’s claim for withholding of removal, the BIA
reversed in part because it believed that “[a]ssistance in opposition to criminal
elements is not a political opinion and collaborators with the DEA do not form a
social group.” The BIA did not have the benefit of subsequent Ninth Circuit
authority that has addressed the BIA’s treatment of analogous social groups. See
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Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc) (clarifying the
“social visibility” and “particularity” inquiries in the context of the social group of
witnesses who testified against gang members); Tapia-Madrigal v. Holder, No. 10-
73700, 2013 WL 1983882 (9th Cir. May 15, 2013) (holding that if the BIA
concluded that the Los Zetas drug cartel was responsible for persecution, the
record compelled the conclusion that petitioner’s membership in the particular
social group of “former Mexican army soldiers who participated in anti-drug
activity” was a central reason for his persecution).
For the foregoing reasons, we remand to the BIA to reconsider Pinhas’s
asylum and withholding of removal claims
The petition for review is GRANTED; REMANDED.
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