Marvin Zuniga Johnson v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 4 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARVIN GEOVANI ZUNIGA JOHNSON, No. 19-72382
AKA Jose Pardo, AKA Marvin Zuniga,
AKA Marvin G. Zuniga, AKA Marvin Agency No. A094-297-137
Geovani Zuniga,
Petitioner, MEMORANDUM*
v.
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 20, 2020**
Pasadena, California
Before: PAEZ and OWENS, Circuit Judges, and ENGLAND,*** District Judge.
Petitioner Marvin Zuniga Johnson, a native and citizen of Honduras,
*
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).
***
The Honorable Morrison C. England, Jr., United States District Judge
for the Eastern District of California, sitting by designation.
petitions for review of a decision by the Board of Immigration Appeals (“BIA”),
which denied his withholding of removal claims and found him ineligible for
withholding of removal due to a conviction for a particularly serious crime. We
have jurisdiction under 8 U.S.C. § 1252. “We review the [BIA’s] legal
conclusions de novo and its factual findings for substantial evidence.” Bringas-
Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc) (citations
omitted). We grant the petition for review and remand for further proceedings.
1. The BIA misapplied the legal standard when it failed to discuss
dangerousness or provide a rationale for its determination that Zuniga Johnson’s
conviction under Cal. Penal Code § 261.5(c) was a particularly serious crime.
“Whether the BIA applied the proper legal standard in determining whether [a
petitioner’s] crime was ‘particularly serious’ raises a question of law.” Blandino-
Medina v. Holder, 712 F.3d 1338, 1342–43 (9th Cir. 2013).
“An alien is ineligible for withholding of removal if ‘the alien, having been
convicted by a final judgment of a particularly serious crime is a danger to the
community of the United States.’” Avendano-Hernandez v. Lynch, 800 F.3d 1072,
1077 (9th Cir. 2015) (quoting 8 U.S.C. § 1231(b)(3)(B)(ii)).1 When assessing
1
Aggravated felonies resulting in a sentence of at least five years imprisonment are
per se particularly serious crimes. 8 U.S.C. § 1231(b)(3)(B)(iv). Because a
conviction under § 261.5(c) is not an aggravated felony, Esquivel-Quintana v.
Sessions, 137 S. Ct. 1562, 1568 (2017), and Zuniga Johnson was sentenced to one
year of imprisonment, his conviction is not a per se particularly serious crime.
2
whether a conviction is for a particularly serious crime, the BIA uses the
multifactor test from Matter of Frentescu, 18 I. & N. Dec. 244 (BIA 1982).
Although dangerousness is no longer analyzed as a separate factor, Anaya-Ortiz v.
Holder, 594 F.3d 673, 679 (9th Cir. 2010), the other factors must “justify the
presumption that the convicted immigrant is a danger to the community.” Delgado
v. Holder, 648 F.3d 1095, 1107 (9th Cir. 2011) (en banc).
The BIA discussed the Frentescu factors, but never mentioned
dangerousness nor explained how the other factors justified a presumption that
Zuniga Johnson presented a danger to the community. Therefore, we grant the
petition for review and remand to the BIA to address whether “the nature of the
conviction, the circumstances and underlying facts of the conviction, [and] the type
of sentence imposed” justify a presumption of dangerousness. Id. at 1107 (quoting
Matter of Frentescu, 18 I. & N. Dec. at 247); see also Alphonsus v. Holder, 705
F.3d 1031, 1045 (9th Cir. 2013) (explaining that the BIA must “adequately
elucidate[e] [a] rationale for applying the particularly serious crime bar”),
abrogated on other grounds by Guerrero v. Whitaker, 908 F.3d 541 (9th Cir.
2018).
2. As to the BIA’s alternative ruling, it failed to consider evidence in the
record that directly contradicts part of its rationale for denying withholding of
removal based on an imputed political opinion or particular social group.
3
“[M]isstating the record and failing to mention highly probative or potentially
dispositive evidence” indicates that the BIA failed to consider evidence. Cole v.
Holder, 659 F.3d 762, 771–72 (9th Cir. 2011). “[W]here potentially dispositive
testimony and documentary evidence is submitted, the BIA must give reasoned
consideration to that evidence.” Id. at 772; see also Vitug v. Holder, 723 F.3d
1056, 1064 (9th Cir. 2013) (“[T]he BIA abuses its discretion where it ignores
arguments or evidence.”).
The BIA misstated the record when it repeated the IJ’s findings that there
have been no threats “against [Zuniga Johnson] or his family in particular,” and
that “none of this violence was inflicted on [his] immediate family members, such
as his parents or sisters.” The record, however, contains a declaration from Zuniga
Johnson’s mother, explaining that she was raped and received a death threat due to
her political activity in Honduras.
The BIA’s failure to discuss this “highly probative” evidence limits our
ability to review whether substantial evidence supports the BIA’s denial of
withholding of removal based on an imputed political opinion or particular social
group. We therefore grant the petition for review and remand to the BIA to
address in the first instance the weight and impact of Zuniga Johnson’s mother’s
declaration.
PETITION FOR REVIEW GRANTED AND REMANDED.
4