NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 14 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HECTOR MEZA-VAZQUEZ, No. 15-72672
Petitioner, Agency No. A205-711-242
v.
MEMORANDUM*
WILLIAM F. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 30, 2020**
Pasadena, CA
Before: PAEZ, CALLAHAN, and BUMATAY, Circuit Judges.
Petitioner Hector Meza-Vazquez, a citizen of Mexico, petitions for review of
the Board of Immigration Appeals’ (“BIA”) denial of his application for
withholding of removal and protection under the Convention Against Torture
(“CAT”). Meza argues that the BIA erred in finding that the Mexican government
*
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).
was willing and able to protect him, and that he does not have a well-founded fear
of future persecution if he is removed to Mexico. We have jurisdiction under 8
U.S.C. § 1252, and we grant the petition for review in light of this court’s decision
in Bringas-Rodriguez, 850 F.3d 1051 (9th Cir. 2017) (en banc).
In this case, the BIA held that Meza did not establish that Mexico was
unable or unwilling to protect him for purposes of his claim for withholding of
removal. The BIA upheld the Immigration Judge’s (“IJ”) finding (citing Castro-
Martinez v. Holder, 674 F.3d 1073 (9th Cir. 2011)) that Meza’s failure to credibly
report the persecution he had experienced to police created a “‘gap in proof’ as to
how the government would have responded,” which Meza failed to remedy
through additional evidence. As a result, the BIA denied Meza’s claim for
withholding of removal.
Since the BIA’s decision, however, this court, sitting en banc, has overruled
Castro-Martinez’s rationale. See Bringas-Rodriguez, 850 F.3d at 1056, 1069–72.
In Bringas-Rodriguez, we held that “[f]raming the question of nonreporting as a
‘failure’ that creates an evidentiary ‘gap’ ha[s] the inadvertent effect of heightening
the evidentiary standard beyond the traditional types of proof, accepted in every
prior precedent, that we have deemed sufficient to demonstrate governmental
inability or unwillingness to protect victims of persecution.” Id. at 1069. We
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remanded to the BIA for further consideration of its denial of Bringas’ withholding
of removal and CAT claims. Id. at 1076.
Additionally, in this case, the BIA found that Meza lacked a well-founded
fear of future persecution if returned to Mexico. The BIA held such fear was not
proven because of “the Mexican government[’s] . . . significant steps to combat
violence and discrimination against homosexuals in Mexico.” This seemingly
referred to, among other things, the IJ’s recital of Mexican laws prohibiting
discrimination and providing certain marriage-equality rights. Bringas-Rodriguez
criticized this kind of reasoning, stating that it “falsely equat[es] legislative and
executive enactments prohibiting persecution with on-the-ground progress.” 850
F.3d at 1075. On this basis, in Bringas-Rodriguez, we remanded to the BIA for
further consideration of Bringas’ fear of persecution. Id. at 1076.
In light of Bringas-Rodriguez, the government argues that we should remand
this matter to the BIA. We agree. While Meza contends that this court should find
him entitled to relief from removal, the “court of appeals should remand a case to
an agency for decision of a matter that statutes place primarily in agency hands.”
INS v. Orlando Ventura, 537 U.S. 12, 16 (2002). Remand is appropriate where
new factors, such as intervening case law, call into question the BIA’s decision.
See Li v. Keisler, 505 F.3d 913, 919 (9th Cir. 2007). Consequently, we grant the
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petition so the BIA can apply Bringas-Rodriguez to the facts of Meza’s case in the
first instance.
Accordingly, the petition for review is GRANTED and all of the issues
raised in Meza’s petition are REMANDED to the BIA for consideration of
Bringas-Rodriguez.
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