NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 20-2589
______________
AMILCAR MENJIVAR UMANA,
a/k/a Amilcar Umana
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
______________
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
(Agency No. A094-392-402)
Immigration Judge: Kuyomars Q. Golparvar
______________
Argued on May 27, 2021
______________
Before: MCKEE, RESTREPO, and FUENTES, Circuit Judges.
(Filed: July 26, 2021)
Alyssa M. Kane [ARGUED]
ALDEA – THE PEOPLE’S JUSTICE CENTER
532 Walnut Street
Reading, PA 19601
Counsel for Petitioner Amilcar Antonio Menjivar-Umana
John V. Coghlan
Stephen J. Flynn
Ann M Welhaf [ARGUED]
Civil Division, Office of Immigration Litigation
U.S. Department of Justice
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044
Counsel for Respondent Attorney General United States of America
_______________
OPINION*
_______________
FUENTES, Circuit Judge.
Amilcar Menjivar Umana petitions for review of a decision of the Board of
Immigration Appeals affirming an Immigration Judge’s denial of his requests for
statutory withholding of removal and protection under the Convention Against Torture.
Due to intervening changes in applicable immigration cases by the Attorney General, we
will vacate the Board’s prior decision and remand this case for further proceedings.
Menjivar Umana is a 42-year-old Salvadoran citizen who first came to this country
in 2000. He maintained temporary protected status for more than a decade, but lost it
following a number of arrests for driving under the influence, and was first removed to El
Salvador in 2013. He subsequently returned to this country and was deported on two
other occasions, but later reentered unlawfully in May 2015. He was later detained, and a
prior removal order against him was reinstated. He sought relief from this order in the
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
2
form of withholding of removal1 and withholding under the Convention Against Torture.2
Menjivar Umana claimed that if he were again removed to El Salvador, he would be
targeted by gang members who had previously tried to extort money from him. As
additional support for his claims, he testified that gang members had later severely beaten
his brother and may have been responsible for the murder of his father. He believed they
may do similar things to him if he were removed.
An immigration judge denied relief. In addition to finding that Menjivar Umana
had not suffered past persecution and had failed to establish a clear probability of future
persecution, it also concluded that his two proposed “particular social groups” were not
cognizable under then-governing law.3 Relying in part on Matter of L-E-A-, the
Immigration Judge found that one proposed particular social group, immediate family
members of his father, was insufficiently socially distinct in Salvadoran society.4 It also
found that under Matter of A-B-, Menjivar Umana could not show a nexus, or link,
between the harm he alleged gang members might inflict on him and his membership in a
1
8 U.S.C. § 1231(b)(3)(A).
2
8 C.F.R. § 1208.16(c)(1)–(4).
3
To be cognizable, a “particular social group,” within the meaning of 8 U.S.C. § 1231(b)
(3)(A) must be “(1) composed of members who share a common immutable
characteristic, (2) defined with particularity, and (3) socially distinct within the society in
question.” S.E.R.L. v. Att’y Gen. United States of Am., 894 F.3d 535, 547 (3d Cir. 2018)
(quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014)).
4
27 I. & N. Dec. 581 (A.G. 2019); App. 104.
3
particular social group.5 As to his claim under the Convention Against Torture, the
Immigration Judge found that Menjivar Umana had not demonstrated that it was more
likely than not he would tortured by or with the acquiescence of a public official, if
returned to El Salvador. The Board of Immigration Appeals dismissed Menjivar
Umana’s appeal, affirming the Immigration Judge’s factual findings and legal reasoning.
This petition for review followed.6
While the petition was pending, the Attorney General vacated both Matter of
L- E-A-7 and Matter of A-B-.8 In each case, the Attorney General vacated the prior
decision pending an anticipated rulemaking, and held that while the rulemaking was
ongoing, the preexisting law before each decision should control.9
In assessing Menjivar Umana’s claims for relief, both the Immigration Judge and
the Board expressly relied on these since-vacated decisions.10 As is to be expected,
neither the Board nor the Immigration Judge reached any conclusion under the standards
now articulated by the Attorney General, thus leaving this Court without a decision under
the governing framework. Appellate courts are “not generally empowered to conduct a
5
27 I. & N. Dec. 316, 338-39 (A.G. 2018); App. 105.
6
We have jurisdiction under 8 U.S.C. § 1252.
7
28 I. & N. Dec. 304, 305 (A.G. 2021).
8
28 I. & N. Dec. 307, 309 (A.G. 2021).
9
L-E-A-, 28 I. & N. Dec. at 305; A-B-, 28 I. & N. Dec. at 309.
10
See, e.g., App. 5, 6 (Board of Immigration Appeals); App. 102, 104, 105-6
(Immigration Judge).
4
de novo inquiry into the matter being reviewed,” and therefore where such an inquiry
may be necessary, the preferred course is to remand to the agency for additional
consideration.11 We will do so here.
As neither the Board nor the Immigration Judge had an opportunity to consider his
claims under the now-governing standards articulated by the Attorney General, we will
grant the petition for review, vacate the Board’s decision, and remand with instructions to
evaluate Menjivar Umana’s claims in light of the Attorney General’s recent
determinations.
11
I.N.S. v. Orlando Ventura, 537 U.S. 12, 16 (2002) (quoting Florida Power & Light Co.
v. Lorion, 470 U.S. 729, 744 (1985)).
5