NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 19 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAYMUNDO GARCIA-GADAY, AKA No. 18-72346
Raymundo Marin-Gaday, AKA Raymundo
Marin-Monroe, AKA Hernando Nolasco- Agency No. A077-229-923
Garcia,
Petitioner, MEMORANDUM*
v.
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 4, 2019
Seattle, Washington
Before: GOULD and NGUYEN, Circuit Judges, and R. COLLINS,** District
Judge.
Petitioner Raymundo Garcia-Gaday petitions for review of the Board of
Immigration Appeals’ (BIA) denial of his claims for withholding of removal to
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Raner C. Collins, United States District Judge for the
District of Arizona, sitting by designation.
Mexico under the Immigration and Nationality Act (INA) and for protection under
the Convention Against Torture (CAT), as well as the BIA’s denial of his motion
to remand for the Immigration Judge (IJ) to consider additional evidence. We
grant his petition in part as to the CAT claim and remand for the BIA to conduct
further proceedings consistent with this decision, and we deny his petition for
review on all other grounds.
1. When adjudicating a claim for CAT protection, the IJ and BIA must
consider all of the evidence and argument presented. Cole v. Holder, 659 F.3d
762, 771–72 (9th Cir. 2011). A failure to do so is legal error, and the agency’s
decision cannot stand. Id. Here, the IJ did not consider potentially probative
evidence of government acquiescence to torture by not addressing in its CAT
analysis Garcia-Gaday’s explicit allegations that police at a casino laughed off his
pleas for protection from a cartel he feared, and that the police later tried to put him
in their patrol car to turn him over to the cartel. The IJ instead emphasized his
testimony elsewhere that Garcia-Gaday generally had “no problems” with the
Mexican government, without even mentioning this specific testimony about
alleged police disregard of his concerns about the cartel and his alleged attempted
kidnapping by the police. Because the IJ found Garcia-Gaday “generally
credible,” “failing to mention [that] highly probative or potentially dispositive
evidence” and “give reasoned consideration to that evidence” was error. Id. The
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BIA could not cure this error by conducting its own factual analysis. Rodriguez v.
Holder, 683 F.3d 1164, 1172–73 (9th Cir. 2012).
We do not, however, agree with Petitioner that the record compels the
conclusion that he is more likely than not to be tortured upon returning to Mexico,
and so we do not reverse the BIA’s decision. Rather, we grant in part Garcia-
Gaday’s petition for review of the denial of his CAT claim and remand for
rehearing of the claim, on an open record.
2. Garcia-Gaday has not established that the IJ failed to consider whether
he was persecuted on account of the “particular social group” of family
relationship, a protected category under the INA. Parada v. Sessions, 902 F.3d
901, 910 (9th Cir. 2018). In finding that Garcia-Gaday’s claimed persecution was
“not linked to race, religion, nationality, membership in a particular social group,
or political opinion,” the IJ made several references to Garcia-Gaday’s cousin and
the fact that Garcia-Gaday’s father and sister remain living unharmed in the same
building as Garcia-Gaday did. The record does not support the inference that the IJ
completely failed to consider the issue. Furthermore, the IJ’s finding was
supported by substantial evidence, because there is no indication that Garcia-
Gaday was targeted by the cartel on account of anything inherent in his
relationship with his cousin, as opposed to on account of something his cousin said
or did. For these reasons, we deny the petition for review of the BIA’s denial of
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withholding of removal under the INA.
3. We also deny Garcia-Gaday’s petition for review on due process
grounds. The IJ asked critical questions to develop Garcia-Gaday’s testimony,
such as why he believed that the cartel had targeted him, and satisfied its duty to
fully develop the record. Zetino v. Holder, 622 F.3d 1007, 1014–15 (9th Cir.
2010). There was no fundamental unfairness amounting to a due process violation.
Id.
4. We deny Garcia-Gaday’s petition for review of the BIA’s denial of
his motion to remand to consider additional evidence. Such a motion “may be
granted only upon a proffer of new evidence that is material and was not available
and could not have been discovered or presented at the former hearing.” Ayala v.
Sessions, 855 F.3d 1012, 1020 (9th Cir. 2017) (internal quotation marks and
citation omitted). The BIA did not abuse its discretion by denying the motion to
remand where the additional evidence at issue predated the initial hearing and
where Garcia-Gaday did not detail what efforts, if any, he took to obtain the
documents. Nor, in his original motion to the BIA, did he present his current
justification that he lacked internet access while detained, or otherwise provide
concrete support for his inability to obtain the documents earlier. It is also not
clear that this additional evidence differed materially from Garcia-Gaday’s own
testimony, which was found credible. See Najmabadi v. Holder, 597 F.3d 983, 987
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(9th Cir. 2010) (new evidence “must be ‘qualitatively different’ from the evidence
presented at the previous hearing”). Garcia-Gaday has not established that the BIA
abused its discretion.
***
For the foregoing reasons, we GRANT IN PART the petition for review as
to the CAT claim and REMAND, and DENY the petition for review on all other
grounds.
Each party shall bear its own costs.
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