Isidro Jimenez v. Eric Holder, Jr. , 512 F. App'x 714 ( 2013 )

FILED
NOT FOR PUBLICATION MAR 20 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ISIDRO PEREZ JIMENEZ, No. 09-70756
Petitioner, Agency No. A077-397-111
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 12, 2013 **
Before: PREGERSON, REINHARDT, and W. FLETCHER, Circuit Judges.
Isidro Perez Jimenez, a native and citizen of Guatemala, petitions for review
of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s decision denying his application for asylum, withholding of
removal, and protection under the Convention Against Torture (“CAT”). We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law and for
substantial evidence factual findings. Wakkary v. Holder, 558 F.3d 1049, 1056
(9th Cir. 2009). We deny in part and grant in part the petition for review, and we
remand.
Perez Jimenez’s account of his and his family’s experiences as Mam Mayans
during the Guatemalan civil war includes multiple instances of mistreatment by
government soldiers, including the abduction and injury of his father and home
invasions in which he and his mother were threatened. The BIA, treating Perez
Jimenez as credible, rejected all of his claims for relief.
Substantial evidence supports the BIA’s denial of CAT relief because Perez
Jimenez failed to establish it is more likely than not he would be tortured at the
instigation of or with the acquiescence of the government if returned to Guatemala.
See Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008). In addition, we reject
Perez Jimenez’s claim that the BIA failed to accord appropriate consideration to
the fact that some of his family members were granted asylum.
As to Perez Jimenez’s asylum and withholding of removal claims, the BIA
concluded he did not suffer past persecution on account of a protected ground. In
reaching this conclusion, the BIA referred to Perez Jimenez’s lack of physical
harm and to Perez Jimenez’s testimony indicating he was unsure why his father
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was targeted. However, in focusing on Perez Jimenez’s knowledge regarding his
father’s political affiliation, the BIA failed to address his claim that he and his
family were harmed due to their Mam Mayan ethnicity. In addition, when the BIA
issued its order, it did not have the benefit of our decision in Mendoza-Pablo v.
Holder, 667 F.3d 1308 (9th Cir. 2012), which addressed the claim of another Mam
Mayan petitioner based on harm to himself and his family as a child due to their
ethnicity. Accordingly, we grant the petition as to Perez Jimenez’s asylum and
withholding of removal claims and remand for further proceedings consistent with
this disposition. See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam);
Mendoza-Pablo, 667 F.3d at 1313-15; Hernandez-Ortiz v. Gonzales, 496 F.3d
1042, 1044-46 (9th Cir. 2007) (remanding where agency did not consider
petitioner’s age or injuries to family where petitioner perceived events forming
basis of past persecution claim as a child).
Each party shall bear its own costs for this petition for review.
PETITION FOR REVIEW DENIED in part; GRANTED in part;
REMANDED.
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