FILED
NOT FOR PUBLICATION
JUL 17 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALMA MEDRANO-LOPEZ; DAYANA No. 15-71203
ASCENCIO-MEDRANO; RANCES
ASCENCIO-MEDRANO, Agency Nos. A088-038-054
A088-038-055
Petitioners, A088-038-058
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 11, 2018
Pasadena, California
Before: ROGERS,** BYBEE, and WATFORD, Circuit Judges.
Petitioners Alma Medrano Lopez, Dayana Ascencio Medrano, and Rances
Ascensio Medrano (“Petitioners”) seek review of the Board of Immigration
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable John M. Rogers, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
Appeals’ (“BIA”) denial of their motion to reopen their asylum and withholding of
removal proceedings. The BIA concluded that Petitioners’ motion to reopen, filed
more than three years after the BIA’s previous decision in their case, did not fall
within the exceptions to the 90–day time limitation for motions to reopen. The
BIA held that Petitioners’ new evidence was insufficient to establish materially
changed country conditions in El Salvador and that Petitioners had not established
a prima facie case for the relief sought. See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.
§ 1003.2(c)(3)(ii). We have jurisdiction under 8 U.S.C. § 1252(a)(1), and we grant
the petition for review.
The denial of a motion to reopen is reviewed for abuse of discretion, and
“the BIA abuses its discretion when its denial is ‘arbitrary, irrational, or contrary to
law.’” Agonafer v. Sessions, 859 F.3d 1198, 1203 (9th Cir. 2017) (quoting Singh v.
INS, 295 F.3d 1037, 1039 (9th Cir. 2002)). The BIA must accept the facts asserted
by a petitioner in a motion to reopen as true unless they are “inherently
unbelievable,” and the BIA “must show proper consideration of all factors, both
favorable and unfavorable, in determining whether to grant a motion to reopen and
must articulate its reasons for denying such a motion.” Id. (internal quotation
marks omitted). “While the BIA ‘does not have to write an exegesis on every
contention,’ it is required to ‘consider the issues raised, and announce its decision
2
in terms sufficient to enable a reviewing court to perceive that it has heard and
thought and not merely reacted.’” Id. at 1206–07 (quoting Lopez v. Ashcroft, 366
F.3d 799, 807 n.6 (9th Cir. 2004)).
The BIA’s denial, explained in a single paragraph of analysis, is an abuse of
discretion. Although Petitioners’ claims for asylum and withholding of removal
were denied by the Immigration Judge (“IJ”) for failure to show a nexus to a
protected ground, the IJ determined that Petitioners had met the greater burden
under the Convention Against Torture (“CAT”) by showing that it was more likely
than not that they would be tortured upon removal. These factual findings were
not disturbed by the BIA’s determination that Petitioners’ evidence of the
government’s consent or acquiescence in that torture was legally insufficient for
CAT relief. See Medrano-Lopez v. Holder, 584 F. App’x 319, 320–21 (9th Cir.
2014).
In denying reopening because “[e]vidence of gang violence and police
corruption in El Salvador does not demonstrate that the respondents have fears that
differ from the populace as a whole,” the BIA improperly disregarded the evidence
from the original proceedings establishing Petitioners’ well-founded fear of future
harm rising to the level of persecution, as well as the new evidence Petitioners
3
submitted attesting to the continued harm faced by the family since they left El
Salvador.
The BIA stated that Petitioners “still have not demonstrated a nexus between
the persecution they fear and a protected ground under the Act . . . .” Petitioners
contend that their new evidence establishes a protected ground—a particular social
group, evidence of which was not available during their original proceedings, of
“young Salvadoran women viewed as property and acceptable victims by the
country’s gangs.” In reaching only the nexus issue, the BIA must have assumed
the validity of this particular social group. See, e.g., Matter of C-T-L-, 25 I. & N.
Dec. 341, 349 (BIA 2010). But if the cognizability of the social group is assumed,
then the IJ’s undisturbed factual findings compel the conclusion that Petitioners
have a reasonable likelihood of demonstrating a well-founded fear of persecution
on account of a protected ground: The IJ determined that the kidnaping of Dayana
by gang members and those who identified themselves as police officers was
“prompted” by money, but that money was not “the reason for the release and the
subsequent harm that may ensue,” as no ransom was paid. Rather, the IJ found
that the release and future harm feared by Petitioners were motivated by a gang
leader’s “demand that the child be provided to him as a bride.” Because the BIA
failed to either determine the cognizability of the particular social group in light of
4
the new evidence of conditions in El Salvador or provide a reasoned explanation
for why the evidence already in the record did not demonstrate a nexus to this
particular social group, it abused its discretion.
Finally, the BIA continued in the same sentence, “. . . nor a change
indicating it is more likely than not that they would now be tortured in El Salvador
with the consent or acquiescence of the government.” Petitioners’ motion to
reopen before the BIA did not seek to reopen those proceedings; rather, it
addressed only asylum and withholding of removal. It thus appears that the BIA
applied the wrong legal standard in determining whether Petitioners met their
burden for reopening their asylum and withholding of removal proceedings. The
BIA may have intended with this line to cover all possible bases for relief, but in
the absence of any explanation for its sua sponte consideration of whether
Petitioners’ new evidence of a protected ground warranted the reopening of their
CAT proceedings, it has, at a minimum, failed to sufficiently explain its denial.
The petition for review is GRANTED, and the case is REMANDED to the
BIA with instructions to consider properly Petitioners’ changed country conditions
evidence.
5
FILED
Medrano-Lopez v. Sessions, No.15-71203 JUL 17 2018
MOLLY C. DWYER, CLERK
ROGERS, Circuit Judge, dissenting. U.S. COURT OF APPEALS
I respectfully dissent. Although spare, the BIA’s reasons given for denying
re-opening were sufficiently clear to preclude a determination that the Board abused
its discretion.