Karina Ponce-Elias v. Merrick Garland

FILED
NOT FOR PUBLICATION
APR 13 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KARINA ELIZABETH PONCE-ELIAS, No. 19-70808
AKA Estefany Ponce-Elias,
Agency No. A208-449-743
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 15, 2021**
San Francisco, California
Before: MURGUIA and CHRISTEN, Circuit Judges, and LEFKOW,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Joan H. Lefkow, United States District Judge for the
Northern District of Illinois, sitting by designation.
Petitioner, a native and citizen of El Salvador, petitions for review of the
Board of Immigration Appeals’ (BIA) decision denying her applications for
withholding of removal and protection under the Convention Against Torture
(CAT). We have jurisdiction pursuant to 8 U.S.C. § 1252. We grant the petition
and remand to the BIA for further consideration.1
The opening brief prepared by petitioner’s counsel contains several errors.
Most concerning, the section of the brief addressing petitioner’s CAT claim
appears to have been written for an unrelated case. This section of the brief refers
to petitioner as “a convenience store employee [who] was robbed at gun point” and
threatened with being kidnapped. These facts do not appear anywhere in the
administrative record for petitioner, and the only record citation in this section
refers to the record in an entirely different case. Although this error was
conspicuously raised in the government’s answering brief, petitioner’s counsel did
not attempt to acknowledge, explain, or correct this oversight.
1. The BIA’s conclusion that petitioner’s proposed particular social group
was incognizable was not supported by the case-by-case analysis required by the
BIA’s precedents as explained in our recent decision in Diaz-Reynoso v. Barr, 968
1
Because the parties are familiar with the facts, we recite only those
facts necessary to resolve the issues on appeal.
2
F.3d 1070 (9th Cir. 2020). Specifically, the BIA concluded petitioner’s proposed
social group of “young women who are abused by their fathers in El Salvador and
who are unable to flee because they are also targeted by the criminal gangs in El
Salvador” was “not cognizable because it is defined with reference to the
persecution itself.” But “the mere mention of harm does not categorically
disqualify an otherwise cognizable social group.” Diaz-Reynoso, 968 F.3d at 1085.
Rather, the BIA must conduct a case-by-case analysis to determine whether the
group is “defined exclusively by the fact that its members have been subjected to
harm.” Id. at 1086 (emphasis added) (quoting Matter of M-E-V-G-, 26 I. & N.
Dec. 227, 242 (BIA 2014)). Because the BIA failed to conduct the required case-
by-case analysis here, we remand petitioner’s asylum and withholding claims to
the BIA for further consideration of in light of Diaz-Reynoso.2
2. The BIA applied the incorrect legal standard when it concluded petitioner
was not entitled to protection under CAT. The BIA reasoned “[petitioner] ha[d]
not shown that anyone in the El Salvadoran government would affirmatively
consent or acquiesce to her torture” (emphasis added). This is an incorrect
statement of the standard applicable to CAT claims. It is well established that the
2
Though the BIA invoked Matter of A-B- in its decision, petitioner’s
brief urges us to remand to the BIA for consideration of that case. At this point,
the intervening authority that requires reconsideration is Diaz-Reynoso.
3
government’s tacit consent or acquiescence to torture is sufficient to entitle an
applicant to CAT relief. Zheng v. Ashcroft, 332 F.3d 1186, 1196 (9th Cir. 2003)
(“The correct inquiry . . . is whether a respondent can show that public officials
demonstrate ‘willful blindness’ to the torture of their citizens by third parties, or as
stated by the Fifth Circuit, whether public officials ‘would turn a blind eye to
torture.’” (citation omitted)). Because “affirmatively consent or acquiesce”
connotes a higher degree of culpability than mere “acquiescence,” “awareness,”
“willful blindness,” and “willful acceptance,” the BIA applied a higher legal
standard to deny petitioner’s claim for CAT relief. See Ornelas-Chavez v.
Gonzales, 458 F.3d 1052, 1059 (9th Cir. 2006). Accordingly, we remand to the
BIA to reconsider petitioner’s claim for CAT relief under the appropriate standard.
PETITION GRANTED; REMANDED.
4