Jesica Rivera v. Merrick Garland ( 2021 )

FILED
NOT FOR PUBLICATION
MAR 17 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JESICA MARICELA RIVERA; No. 19-71755
KIMBERLI ALEXANDRA GARCIA-
RIVERA, Agency Nos. A202-137-565
A202-137-549
Petitioners,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 1, 2021
Pasadena, California
Before: KLEINFELD, HIGGINSON,** and OWENS, Circuit Judges.
Concurrence by Judge HIGGINSON
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Stephen A. Higginson, United States Circuit Judge for
the U.S. Court of Appeals for the Fifth Circuit, sitting by designation.
The parties agree that the case should be remanded in light of Akosung v.
Barr, 970 F.3d 1095 (9th Cir. 2020) and Castillo v. Barr, 980 F.3d 1278 (9th Cir.
2020) for further consideration of petitioner’s Convention Against Torture claim.
Since the case is being remanded, the Board has discretion to reconsider
petitioner’s claims regarding asylum and withholding of removal as it may deem
appropriate.
The petition for review is GRANTED and REMANDED.
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19-71755, Rivera v. Garland
FILED
MAR 17 2021
HIGGINSON, Circuit Judge, concurring: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I am in agreement with the judgment of the Court, but take this opportunity
to note that, in my view, the Board erred when it affirmed the Immigration Judge’s
finding that Ms. Rivera did not show incidents that rise to the level of past
persecution. Ms. Rivera was deemed credible and testified that five armed MS-13
gang members twice broke into her home, brandishing weapons, to confront her
and her daughter, who were home alone. These physical confrontations escalated,
culminating in a final confrontation when MS-13 gang members threw Ms. Rivera
to the ground, threatened to kill her, and threatened to kill her daughter, who was
then fifteen months old. This repeated series of escalating confrontations, which
included death threats and was accompanied by personal and property violence,
rises to the level of past persecution under this Circuit’s law. E.g., Mashiri v.
Ashcroft, 383 F.3d 1112, 1119 (9th Cir. 2004); Ruano v. Ashcroft, 301 F.3d 1155,
1159–61 (9th Cir. 2002).
Second, Ninth Circuit asylum law considering “particular social group” in
the context of opposition to gang violence is well developed. See Henriquez-Rivas
v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc). It recognizes that the family is
“the quintessential particular social group.” Rios v. Lynch, 807 F.3d 1123, 1128
(9th Cir. 2015). And it recognizes that “retaliation towards a family unit over time
can demonstrate a kind of animus . . . sufficient to demonstrate nexus” if the
petitioner can show “via uncontradicted testimony that persecutors specifically
sought out the particular social group of [her] family.” Garcia v. Wilkinson, ---
F.3d ----, No. 19-72803, 2021 WL 628281, at *6 (9th Cir. Feb. 18, 2021). The
question of whether the Attorney General’s recent decision Matter of L-E-A-, 27 I.
& N. Dec. 581 (2019) (L-E-A- II), is entitled to deference in light of this Circuit’s
published and en banc law is not before us because the Board did not rely on L-E-
A- II in dismissing Ms. Rivera’s petition.
As the panel states, the Board has discretion to reconsider Ms. Rivera’s
asylum and withholding of removal claims.
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