Filed: Feb. 05, 2021
Latest Update: Feb. 06, 2021
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 5 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANDREA ALACHAN LEMUS, No. 17-73251
Petitioner, Agency No. A206-681-292
v.
MEMORANDUM*
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 3, 2021**
Before: HAWKINS, GRABER, and CLIFTON, Circuit Judges.
Lead petitioner Andrea Alachan Lemus ("Petitioner") and her son, Carlos
Arevalos Alachan, timely seek review of the Board of Immigration Appeals’
("BIA") dismissal of their appeal of an immigration judge’s ("IJ") denial of
asylum, withholding of removal, and relief under the Convention Against Torture.
*
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).
Reviewing de novo the agency’s legal conclusions and reviewing for substantial
evidence its factual findings, J.R. v. Barr, 975 F.3d 778, 781 (9th Cir. 2020), we
deny the petition in part, grant the petition in part, and remand for further
proceedings.
1. The BIA correctly held that one of Petitioner’s proposed "particular
social groups" is not cognizable. "Victims of domestic violence" impermissibly
defines the group solely by reference to harm. See Diaz-Reynoso v. Barr, 968 F.3d
1070, 1081 n.5 (9th Cir. 2020) ("[P]ersecution alone cannot define the social
group.").
2. Substantial evidence supports the BIA’s conclusion, on this record, that
Petitioner’s general fears of criminal violence upon return to El Salvador bear an
insufficient nexus to her proposed social group of "young, single-mothers returning
to El Salvador from the United States." See Zetino v. Holder, 622 F.3d 1007, 1016
(9th Cir. 2010) ("An alien’s desire to be free from harassment by criminals
motivated by theft or random violence by gang members bears no nexus to a
protected ground.").
3. Substantial evidence does not support the BIA’s determinations with
respect to a particular social group composed of domestic violence victims in El
2
Salvador who are unable to leave their relationships, akin to the group discussed in
Matter of A-R-C-G-, 26 I. & N. Dec. 388 (BIA 2014).1
First, substantial evidence does not support the BIA’s conclusion that
Petitioner "was able to leave the domestic relationship she shared with her former
partner," because the BIA’s analysis rested on a plainly erroneous understanding of
the record. Petitioner lived with her former partner continuously from August
2008 through January 2014, except for a one-year period beginning in February
2010. Petitioner was abused repeatedly during the two periods of cohabitation.
The BIA misunderstood the factual record, stating incorrectly that Petitioner "was
able to leave her former partner and live with her parents without incident from
2009 to 2010 and later from March 2011 to January 2014." On remand, the BIA
may reconsider—with a proper understanding of the record—whether Petitioner
was able to leave the relationship successfully.
1
The Attorney General later overruled Matter of A-R-C-G- in Matter of A-
B-, 27 I. & N. Dec. 316 (A.G. 2018), which itself has been overruled in part, Grace
v. Barr, 965 F.3d 883 (D.C. Cir. 2020), and further refined, Matter of A-B-, 28 I. &
N. Dec. 199 (Acting A.G. 2021). Later legal developments do not affect our
analysis here for two independent reasons. First, the BIA did not hold, in the
alternative, that Petitioner’s proposed group was not cognizable; we therefore
cannot reach that ground. Navas v. INS,
217 F.3d 646, 658 n.16 (9th Cir. 2000).
Second, we recently held that the BIA must carefully examine the cognizability of
proposed particular social groups,
Diaz-Reynoso, 968 F.3d at 1082–87, which did
not occur here.
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Second, substantial evidence does not support the BIA’s conclusion that the
Salvadoran government was not unable or unwilling to protect her. The relevant
country report and several news articles support Petitioner’s own testimony that
reporting an incident to the police would have been futile. The evidence in this
record as to El Salvador thus differs from the evidence pertaining to Guatemala in
Velasquez-Gaspar v. Barr, 976 F.3d 1062, 1064–65 (9th Cir. 2020). Given the
general country conditions and Petitioner’s testimony—which the IJ and BIA
credited—that the police in her town do not respond to formal complaints,
substantial evidence does not support the BIA’s speculation that, because a family
friend who was a police officer encouraged Petitioner to file a formal complaint,
the police would have acted in this instance.
4. Substantial evidence supports the BIA’s conclusion that Petitioner is not
entitled to relief under the Convention Against Torture.
The parties shall bear their own costs on appeal.
DENIED in part, GRANTED in part, and REMANDED for further
proceedings.
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