Alejandro Hernandez-Ramos v. Jefferson Sessions

FILED
NOT FOR PUBLICATION
MAR 31 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALEJANDRO HERNANDEZ-RAMOS, Nos. 13-70154
AKA Arturo Gonzales, 13-72096
Petitioner, Agency No. A095-734-742
v.
MEMORANDUM*
JEFF B. SESSIONS, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 10, 2017
Seattle, Washington
Before: PAEZ and CALLAHAN, Circuit Judges, and SELNA,** District Judge.
Alejandro Hernandez-Ramos (“Hernandez-Ramos”), a native and citizen of
Mexico, petitions for review of his final order of removal as well as the denial of
his motion to reopen seeking the opportunity to apply for asylum, withholding of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable James V. Selna, United States District Judge for the
Central District of California, sitting by designation.
removal, and protection under the Convention Against Torture (“CAT”). Because
we grant the petition for review of the motion to reopen, No. 13-72096, we dismiss
as moot the petition for review of the underlying removal order, No. 13-70154.
We have jurisdiction pursuant to 8 U.S.C. § 1252. We review the Board of
Immigration Appeals’ (“BIA”) denial of a motion to reopen for abuse of discretion.
“The BIA abuses its discretion when it acts ‘arbitrarily, irrationally, or contrary to
the law.’” Tadevosyan v. Holder, 743 F.3d 1250, 1252–53 (9th Cir. 2014) (quoting
Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005)).
On March 13, 2013, Hernandez-Ramos filed a timely motion to reopen with
the BIA to apply for asylum, withholding of removal, and protection under the
CAT. The BIA denied the motion to reopen, and Hernandez-Ramos filed the
instant petition for review. To prevail on a motion to reopen, Hernandez-Ramos
must demonstrate, inter alia, that he is prima facie eligible for the relief he seeks.1
See Ordonez v. I.N.S., 345 F.3d 777, 785 (9th Cir. 2003). To establish a prima
facie case “the evidence [must] reveal[] a reasonable likelihood that the statutory
1
The BIA found that Hernandez-Ramos met the other requirements for a
motion to reopen, stating that the evidence submitted was previously unavailable
and that the circumstances occurred after Hernandez-Ramos had been ordered
removed. See 8 C.F.R. § 1003.2(c)(1).
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requirements for relief have been satisfied.” Id. (quoting In re S–V, 22 I. & N.
Dec. 1306 (BIA 2000)).
Therefore, the critical issue in this proceeding is whether the BIA correctly
concluded that Hernandez-Ramos failed to “present[] sufficient evidence to
establish that he now is prima facie eligible for asylum, withholding of removal or
protection under the CAT.”
Asylum and Withholding of Removal
“The BIA has long and consistently held that ‘kinship ties’ are the sort of
common and immutable characteristic that give rise to a ‘particular social group.’”
Thomas v. Gonzalez, 409 F.3d 1177, 1184 (9th Cir. 2005) (en banc) (vacated on
other grounds, 547 U.S. 183 (2006)). Moreover, we have rejected any argument
that “a family can constitute a particular social group only when the alleged
persecution on that ground is intertwined with one of the other four grounds
enumerated in 8 U.S.C. §§ 1101(a)(42)(A), 1231(b)(3)(A).” Id. at 1188; see also
Rios v. Lynch, 807 F.3d 1123, 1128 (9th Cir. 2015).
Here, although not a model of clarity, we agree with the BIA that
Hernandez-Ramos based his claim for asylum and withholding on his membership
in a protected social group consisting of individuals “who have family members in
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Mexico who have been targeted by Los Zetas.” In evaluating this claim, the BIA
stated that “[t]he respondent contends that the deaths of his family members and
friends show he is in danger, but the respondent has not provided sufficient
information to establish that these deaths occurred on account of one of the five
statutory grounds . . . .” In requiring Hernandez-Ramos to support his motion with
evidence that establishes the basis for his asylum and withholding claims, the BIA
applied an incorrect legal standard and therefore abused its discretion. See
Ordonez, 345 F.3d at 785 (stating that we do not “require[] a conclusive showing
that eligibility for relief has been established.”).
Hernandez-Ramos’s burden at this stage is to show there is a reasonable
likelihood that he would be targeted on account of his relationship to his family if
he were to return to Mexico. See Rios, 807 F.3d at 1128; Ordonez, 345 F.3d at
785. Hernandez-Ramos has met his burden: given the recent deaths of several
family members, as well as the surveillance and questioning of his immediate
family, Hernandez-Ramos has established a reasonable likelihood that he would be
targeted by either Los Zetas, or the government in concert with Los Zetas, on
account of his kinship ties. Having presented evidence of his ties to his family, he
has presented a prima facie case for relief. Rios, 807 F.3d at 1128.
Convention Against Torture
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In determining Hernandez-Ramos’s eligibility for CAT relief, the BIA also
committed legal error and thereby abused its discretion. After analyzing
Hernandez-Ramos’s evidence, the BIA stated that it was “not sufficient to establish
that the respondent has a clear probability of facing torture at the hands of or with
the acquiescence of the Mexican government.” This is not the correct standard—in
a motion to reopen, Hernandez-Ramos does not need to demonstrate a “clear
probability” that he will suffer torture, but rather a reasonable likelihood that it is
more likely than not that he will suffer torture in Mexico. See Ordenez, 345 F.3d
at 785; Nuru v. Gonzales, 404 F.3d 1207, 1221 (9th Cir. 2005). As Hernandez-
Ramos has demonstrated a reasonable likelihood that he will be killed upon
returning to Mexico, he has met his burden in his motion to reopen. Bromfield v.
Mukasey, 543 F.3d 1071, 1079 (9th Cir. 2008) (“Acts constituting torture are
varied, and include beatings and killings.”); see also Reyes v. Lynch, 842 F.3d
1125, 1142 (9th Cir. 2016).
In denying Hernandez-Ramos’s motion to reopen, the BIA applied the
incorrect legal standards and thereby abused its discretion. Accordingly, we grant
the petition for review in No. 13-72096, and remand to the BIA with instructions to
reopen so that Hernandez-Ramos can pursue his applications for asylum,
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withholding of removal, and protection under the CAT. The petition for review in
the consolidated matter, No. 13-70154, is dismissed as moot.
The Petition for Review in No. 13-72096 is GRANTED and REMANDED.
The Petition for Review in No. 13-70154 is DISMISSED as moot.
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