NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 19 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIA ARACELI TORRES VALDIVIA, No. 15-73499
Petitioner, Agency No. A200-973-357
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 13, 2019**
Pasadena, California
Before: BERZON, R. NELSON, and BADE, Circuit Judges.
Petitioner Maria Araceli Torres Valdivia seeks review of the Board of
Immigration Appeals’s decision to deny her request for withholding of removal or,
in the alternative, relief under the Convention Against Torture. We grant her
petition with respect to her request for withholding of removal, and deny her
*
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).
petition with respect to the claim under the Convention Against Torture.
Because the BIA conducted its own review of the evidence and law in this
case, “our review is limited to the BIA’s decision.” Bringas-Rodriguez v. Sessions,
850 F.3d 1051, 1059 (9th Cir. 2017) (en banc) (quoting Hosseini v. Gonzales, 471
F.3d 953, 957 (9th Cir. 2006)). “In reviewing the decision of the BIA, we consider
only the grounds relied upon by that agency.” Andia v. Ashcroft, 359 F.3d 1181,
1184 (9th Cir. 2004) (per curiam). We review the BIA’s factual findings for
substantial evidence and its legal determinations de novo. Henriquez-Rivas v.
Holder, 707 F.3d 1081, 1087 (9th Cir. 2013) (en banc); see also Pirir-Boc v.
Holder, 750 F.3d 1077, 1081 (9th Cir. 2014).
1. The BIA held that Torres was not eligible for withholding of removal
because Torres’s asserted particular social group, “all women in Mexico,” lacks
particularity and is not socially distinct. We conclude that the court’s reasoning is
legally erroneous under the BIA’s and this circuit’s precedents.
The BIA first concluded that “all women in Mexico” lacks particularity
because this group “could include persons of any age or background.” We have
already rejected this line of reasoning in a nearly identical context. See Perdomo v.
Holder, 611 F.3d 662, 669 (9th Cir. 2010); see also Mohammed v. Gonzales, 400
F.3d 785, 797 (9th Cir. 2005); Ticas-Guillen v. Whitaker, 744 F. App’x 410, 410
(9th Cir. 2018). “[T]he size and breadth of a group alone does not preclude a
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group from qualifying as [a particular] social group.” Perdomo, 611 F.3d at 669.
Indeed, both the BIA and our court have recognized that particular social groups
can include people of a range of ages and backgrounds. For example, we have
held that former police officers, landowners, and gay men could each constitute a
particular social group. See Sanjaa v. Sessions, 863 F.3d 1161, 1165 (9th Cir.
2017); Cordoba v. Holder, 726 F.3d 1106, 1114 (9th Cir. 2013), Karouni v.
Gonzales, 399 F.3d 1163, 1172 (9th Cir. 2005); see also Perdomo, 611 F.3d at
668–69. So too has the BIA. See Matter of Toboso-Alfonso, 20 I. & N. Dec. 819,
822–23 (BIA 1990); Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985).
The BIA’s second reason for rejecting Torres’s asserted particular social
group fares no better. The BIA determined that “all women in Mexico” was not a
socially distinct group because “nothing in the record shows that women who fear
violence in Mexico are perceived, considered, or recognized by Mexican society to
be a distinct social group” (emphasis added). But Torres did not contend that
“women who fear violence in Mexico” are a particular social group; she
maintained that “all women in Mexico” are a particular social group. A conclusion
that there was not evidence that women in Mexico who fear violence are socially
distinct does not support a conclusion that “all women in Mexico” are not socially
distinct.
Because the BIA failed to provide adequate reasons for determining that
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Torres had not demonstrated that “all women in Mexico” was a cognizable social
group, we grant the petition as to Torres’s claim for withholding of removal and
remand to the BIA for further proceedings consistent with this decision.1 See, e.g.,
Cordoba, 726 F.3d at 1117; Perdomo, 611 F.3d at 669.
2. We deny relief as to Torres’s claim under the Convention against Torture.
Substantial evidence supports the conclusion that Torres had not shown that it was
more likely than not that she would be tortured if she returned to Mexico.
3. Torres’s opposed motion to dismiss for lack of jurisdiction or in the
alternative motion to remand (Docket Entry No. 24) is denied. See Karingithi v.
Whitaker, 913 F.3d 1158, 1159 (9th Cir. 2019) (initial notice to appear need not
include time and date to vest jurisdiction in immigration court).
The petition for review is GRANTED in part and DENIED in part.
1
Torres’s counsel provided grossly inadequate briefing in this case. As the
government identified, this briefing was likely plagiarized from an amicus brief in
an unrelated Third Circuit case. We nonetheless exercise our discretion to review
the BIA’s determination that Torres did not identify a cognizable particular social
group. “[T]he government briefed [this issue], and thus suffers no prejudice from
[Torres’s] failure to properly raise the issue.” Singh v. Ashcroft, 361 F.3d 1152,
1157 n. 3 (9th Cir.2004).
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