Hugo Martinez-Davalos v. Loretta Lynch ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 13 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HUGO A. MARTINEZ-DAVALOS, No. 15-71935
Petitioner, Agency No. A092-232-127
v.
MEMORANDUM *
LORETTA E. LYNCH, Attorney General
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 5, 2016
Pasadena, California
Before: REINHARDT, WARDLAW, and OWENS, Circuit Judges.
Hugo A. Martinez-Davalos, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeal’s (“BIA”) denial of deferral of
removal under the Convention Against Torture (“CAT”). As the parties are
familiar with the facts, we do not recount them here. We grant the petition and
remand for further proceedings consistent with this disposition.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1. As a preliminary matter, we have jurisdiction under 8 U.S.C. § 1252(a).
See Pechenkov v. Holder, 705 F.3d 444, 448 (9th Cir. 2012) (holding that
jurisdiction remains where the immigration judge “denies relief on the merits, for
failure to demonstrate the requisite factual grounds for relief, rather than in reliance
on the conviction”). We decline the government’s request to revisit our decision in
Pechenkov.
2. In the first iteration of this case, the Immigration Judge (“IJ”) found
Martinez credible, and held that he met his burden to show that it is more likely
than not he would be tortured if he returns to Mexico. See 8 C.F.R. §
1208.16(c)(2). Thus, the IJ granted Martinez CAT relief. The BIA vacated that
decision on appeal and the case was then appealed to this court. We granted the
government’s unopposed motion to remand in light of intervening case law.
During the second iteration, on remand proceedings in front of the same IJ,
Martinez presented additional personal and expert witness testimony clarifying the
extent of police corruption in Mexico and corroborating his claims that the
Mexican police would acquiesce to his torture if he returned. Despite the
additional evidence supporting the application for deferral of removal, the IJ
reversed his previous decision. The IJ again found Martinez credible, but this time
held that Martinez had not met his burden to show that it is more likely than not
that he would be tortured if he returned to Mexico. As such, the IJ denied
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Martinez CAT relief. The BIA affirmed the IJ’s denial.
On remand, the IJ and BIA discussed the evidence that led to their denial of
Martinez’s application for deferral of removal under the CAT, but never discussed
the IJ’s opposite interpretation of essentially the same, if not stronger, facts in the
remand proceeding. If the agency fails “to engage in a substantive analysis of its
decision, we have no ability to conduct a meaningful review of its decision.”
Arrendondo v. Holder, 623 F.3d 1317, 1320 (9th Cir. 2010); see also Su Hwa She
v. Holder, 629 F.3d 958, 963–64 (9th Cir. 2010) (“Rather than countenance a
decision that leaves us to speculate based on an incomplete analysis, we remand
the case to the BIA for clarification.”). Because the agency in this case gave no
reasoned explanation for why stronger support for Martinez’s application for
deferral of removal under the CAT led the agency to reach a different conclusion
the second time, we remand for reconsideration or a reasoned explanation by the IJ
of why he reaches a decision contrary to his first.
GRANTED and REMANDED.
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