NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
DEC 23 2019
GUSTAVO ADOLFO MARTINEZ, No. 17-73088 MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
Petitioner, Agency No. A208-928-871
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 9, 2019
Seattle, Washington
Before: GRABER, BERZON, and HIGGINSON,** Circuit Judges.
Petitioner Gustavo Adolfo Martinez seeks review of the Board of
Immigration Appeals’ ("BIA") final order denying his requests for asylum,
withholding of removal, and relief under the Convention Against Torture. We
deny the petition in part, grant it in part, and remand for reconsideration.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Stephen A. Higginson, United States Circuit Judge for the U.S.
Court of Appeals for the Fifth Circuit, sitting by designation.
1. With respect to the claims for asylum and withholding of removal, the
main issue that the petition for review raises is whether, in Honduras, people who
witness gang violence, cooperate with police, and are designated Protected Witness
Complainants constitute a "particular social group." 8 U.S.C. § 1101(a)(42)(A).
Rather than reach the social-group question, we remand for reconsideration of a
potentially dispositive issue that was analyzed inadequately by the BIA.
The government now concedes that the harm Petitioner suffered constitutes
persecution. But the government argues, and the BIA concluded, that the
Honduran government was neither unwilling nor unable to control the relevant
gang violence. The BIA’s analysis is inaccurate and incomplete.
Although the BIA’s decision uses the phrase "unable or unwilling" in
reference to the Honduran government’s control of the M-18 gang, the discussion
focuses only on willingness to control M-18. The BIA’s descriptions of the
relevant caselaw suggest that the government must either condone the violence or
fail to take reasonable steps to prevent or respond to it. That formulation is
incorrect. It was legal error to consider only the Honduran government’s
willingness to control gang violence; an analysis of the government’s ability to do
so also is required. Madrigal v. Holder, 716 F.3d 499, 506–07 (9th Cir. 2013).
Although the immigration judge and the BIA discussed the steps that police took to
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protect Petitioner, neither addressed the "efficacy of those efforts." Id. at 506
(emphasis added). The BIA must consider that question in the first instance. Id. at
507.
For that reason, we grant the petition with respect to the claims for asylum
and withholding of removal, and we remand the matter to the BIA for
reconsideration.
2. We deny the petition as to Petitioner’s claim for relief under the
Convention Against Torture. See Shrestha v. Holder, 590 F.3d 1034, 1048 (9th
Cir. 2010) (stating standard of review). The BIA’s conclusion that the Honduran
government is willing to combat gang violence is supported by substantial
evidence. Even if the BIA were to conclude that the Honduran government is not
able to control violence by M-18, ineffectiveness, without more, would not raise an
inference that the government would acquiesce in any torture that might occur.
Garcia-Milian v. Holder, 755 F.3d 1026, 1034 (9th Cir. 2014).
PETITION DENIED IN PART, GRANTED IN PART, AND
REMANDED. The panel will retain the case if a further petition for review is
filed. Each party shall bear their own costs.
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