Angel Montes Martinez v. Loretta E. Lynch

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 01 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ANGEL MONTES MARTINEZ, AKA No. 14-71406
Angel Martinez, AKA Angel Montes,
AKA Marcelo Montes, AKA Marcelo Agency No. A029-655-930
Montes Martinez, AKA Angel Montes-
Martinez, AKA Isidro Montes-Martinez,
AKA Marcelo Montes-Martinez, AKA MEMORANDUM*
Angel Montesmartinez,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 22, 2015**
Before: HAWKINS, GRABER, and W. FLETCHER, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Angel Montes Martinez, a native and citizen of Mexico, petitions for review
of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s decision denying his application for withholding of removal
and protection under the Convention Against Torture (“CAT”). Our jurisdiction is
governed by 8 U.S.C. § 1252. We review for substantial evidence the agency’s
factual findings. Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006).
We review due process challenges de novo. Padilla-Martinez v. Holder, 770 F.3d
825, 830 (9th Cir. 2014). We grant the petition for review and remand.
Substantial evidence does not support the agency’s conclusion that the harm
experienced by Montes Martinez and his brother as children was the result of a
private dispute with their persecutor, and that their familial relationship to their
father did not represent one central reason for the attacks. See Singh v. Holder, 764
F.3d 1153, 1160-62 (9th Cir. 2014); see also Parussimova v. Mukasey, 555 F.3d
734, 741 (9th Cir. 2009) (“a motive is a ‘central reason’ if the persecutor would not
have harmed the applicant if such motive did not exist”).
In addition, substantial evidence does not support the BIA’s finding that
Montes Martinez failed to establish harm by an individual the Mexican
government is unwilling or unable to control. See Doe v. Holder, 736 F.3d 871,
878-89 (9th Cir. 2013) (petitioner’s evidence that the police rejected one complaint
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and quickly dismissed a second complaint against named attackers compelled the
conclusion that the government was unwilling or unable to protect him from
private attacks).
Thus, we grant the petition for review and remand Montes Martinez’s
withholding of removal and CAT claims for further proceedings consistent with
this disposition. See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam); see
also Afiyie v. Holder, 613 F.3d 924, 937 (9th Cir. 2010) (remanding CAT claim in
light of errors identified in agency’s “unable or unwilling” analysis and evidence
of government awareness of danger to petitioner). We decline to address, as moot,
Montes Martinez’s contention that the BIA’s denial of his CAT claim violated due
process.
PETITION FOR REVIEW GRANTED; REMANDED.
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