Byron Arriaza-Pacheco v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 17 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BYRON DENNIS ARRIAZA-PACHECO, No. 19-72133
Petitioner, Agency No. A200-244-537
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted September 2, 2020
Pasadena, California
Before: SILER,** BERZON, and LEE, Circuit Judges.
Petitioner, Byron D. Arriaza-Pacheco, seeks review of the Board of
Immigration Appeals’ (BIA) decision, which affirmed the Immigration Judge’s
denial of withholding of removal. We grant the petition and remand.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
We have jurisdiction to review under 8 U.S.C. § 1252(a). The BIA’s
determination that the Petitioner is not eligible for removal is reviewed under the
substantial evidence standard. See Shrestha v. Holder, 590 F.3d 1034, 1039 (9th
Cir. 2010). Questions of law are reviewed de novo. See Pirir–Boc v. Holder, 750
F.3d 1077, 1081 (9th Cir. 2014).
1. Petitioners must exhaust administrative remedies before seeking
judicial review. Rendon v. Mukasey, 520 F.3d 967, 972 (9th Cir. 2008). The key
question is whether the BIA has had “an adequate opportunity to pass on the issue.”
Diaz-Jimenez v. Sessions, 902 F.3d 955, 960 (9th Cir. 2018). Here, the BIA had
prior opportunity to address both Arriaza-Pacheco’s CAT claim and his claim that
the government of Guatemala is unwilling or unable to protect him, which were both
raised in his initial appeal. The BIA rejected Arriaza-Pacheco’s arguments on both
issues, and this court’s remand did not encompass them. The petitioner had no
obligation to relitigate before the BIA issues the agency had already decided. See
Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 874 (9th Cir. 2008). The exhaustion
requirement was therefore satisfied for both claims.
2. Family is “the quintessential particular social group.” Rios v. Lynch,
807 F.3d 1123, 1128 (9th Cir. 2015). The group identified by Arriaza-Pacheco
includes only his grandparents’ descendants (his sister, cousin, aunt, uncles and
himself), and is easily defined with sufficient particularity to create a cognizable
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social group. See Rios v. Lynch, 807 F.3d 1123, 1127-28 (9th Cir. 2015). The BIA’s
determination that Arriaza-Pacheco’s social group was not cognizable because it was
insufficiently specific was not supported by substantial evidence.
3. An applicant for withholding can establish a rebuttable presumption of
eligibility for relief through a showing of past persecution. 8 C.F.R. §
1208.16(b)(1)(i). Although the petitioner must show a “clear probability” of future
persecution should he be deported to his home country, Tamang v. Holder, 598 F.3d
1083, 1091 (9th Cir. 2010), “past persecution gives rise to a presumption of a
sufficient likelihood of future persecution” in an application to withhold removal,
Ming Dai v. Sessions, 884 F.3d 858, 874 (9th Cir. 2018). To rebut the presumption,
the government must show “a fundamental change in circumstances” or show “the
applicant could reasonably relocate within the country of that person’s nationality.”
Mousa v. Mukasey, 530 F.3d 1025, 1030 (9th Cir. 2008) (citing 8 C.F.R. §
1208.16(b)(1). Arriaza-Pacheco seeks to establish a fear of future persecution by
proving past persecution on account of his cognizable social group, his family
membership, as described above.
It is not clear that the BIA, in rejecting Arriaza-Pacheco’s past persecution
showing, considered all of the evidence, including Arriaza-Pacheco’s testimony as
to his kidnapping and other circumstantial evidence in the record, such as the
shooting of his sister’s home and the shooting of his aunt. Therefore, we remand for
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reconsideration on the following issues: (1) whether Arriaza-Pacheco experienced
past persecution; and (2) whether a sufficient nexus exists between the harm feared
by the petitioner and a protected ground. See Khudaverdyan v. Holder, 778 F.3d
1101, 1107-8 (9th Cir. 2015).
We grant the petition on the issues of exhaustion and cognizable social group
and remand to the BIA to make a determination on the whether Arriaza-Pacheco
experienced past persecution, including whether the Guatemalan government was
unable or unwilling to prevent any past persecution and, if so, to apply the resulting
presumption of future persecution to determine whether Arriaza-Pacheco is eligible
for withholding of removal.
GRANTED AND REMANDED.
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