Yaquelin Catalan-Matta v. William Barr ( 2020 )

FILED
NOT FOR PUBLICATION
DEC 7 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
YAQUELIN PATRICIA CATALAN- Nos. 19-72896
MATTA, 20-70188
Petitioner, Agency No. A200-771-449
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 20, 2020
Phoenix, Arizona
Before: BYBEE, MURGUIA, and BADE, Circuit Judges.
Petitioner Yaquelin Catalan-Matta de Ruiz (Catalan) petitions for review of
a negative reasonable fear determination under 8 C.F.R. § 1208.31(g) and a denial
of a motion to reopen that determination sua sponte. We have jurisdiction to
review a reinstatement order under 8 U.S.C. § 1252(a)(1), and we review “due
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
process claims and questions of law raised in immigration proceedings de novo.”
Garcia de Rincon v. Dep’t of Homeland Sec., 539 F.3d 1133, 1136 (9th Cir. 2008)
(citation omitted). We review factual findings underlying the reasonable fear
determination for substantial evidence, meaning the immigration judge’s (IJ)
conclusion must be upheld “unless, based on the evidence, ‘any reasonable
adjudicator would be compelled to conclude to the contrary.’” Andrade-Garcia v.
Lynch, 828 F.3d 829, 833 (9th Cir. 2016) (quoting Ai Jun Zhi v. Holder, 751 F.3d
1088, 1091 (9th Cir. 2014)). We grant the petition in No. 19-72896 and remand
for further fact-finding on an open record.
1. Substantial evidence does not support the IJ’s determination that
Catalan failed to establish a reasonable possibility of persecution in Guatemala on
account of a protected ground. The record here compels the conclusion that
Catalan was targeted because of her pursuit of the investigations into her
daughters’ murders by drug traffickers. Thus, Catalan has established a nexus to at
least her proposed social group of “witnesses testifying against or otherwise
opposing gang members.” See Madrigal v. Holder, 716 F.3d 499, 506 (9th Cir.
2013) (“[I]f a retributory motive exists alongside a protected motive, an applicant
need show only that a protected ground is ‘one central reason’ for [her]
persecution.”); see also Ayala v. Sessions, 855 F.3d 1012, 1015 (9th Cir. 2017)
2
(stating that where petitioner “seeks only withholding of removal and not asylum,
she need establish only that a protected characteristic was ‘a reason’ motivating”
the persecution (citation omitted)). Catalan’s role as a protected witness in an
ongoing investigation may be a protected ground under Henriquez-Rivas v. Holder,
707 F.3d 1081, 1086, 1092–93 (9th Cir. 2013) (en banc), which held that
Salvadoran witnesses testifying against gang members in open court could
constitute a particular social group under the Immigration and Nationality Act, 8
U.S.C. §§ 1101–1537. We remand to the agency for further consideration of the
cognizability of Catalan’s proposed social groups. See Gonzales v. Thomas, 547
U.S. 183, 186–87 (2006) (per curiam) (“[T]he proper course, except in rare
circumstances, is to remand to the agency for additional investigation or
explanation.” (citation omitted)).
2. Substantial evidence also does not support the IJ’s determination that
Catalan failed to demonstrate a reasonable possibility of torture either by or with
the consent or acquiescence of the government if returned to Guatemala. We
exercise our discretion to reach this issue despite the lack of development in
Catalan’s opening brief because the government addressed the torture claim in its
brief and therefore is not prejudiced. See Ndom v. Ashcroft, 384 F.3d 743, 751 (9th
3
Cir. 2004). The asylum officer found Catalan’s testimony credible, and the IJ did
not disturb this finding.
Here, Catalan’s testimony compels a finding of governmental acquiescence.
See Madrigal, 716 F.3d at 509 (“[A]n applicant for [Convention Against Torture
(CAT)] relief need not show that the entire foreign government would consent to
or acquiesce in his torture. He need show only that ‘a public official’ would so
acquiesce.” (quoting 8 C.F.R. § 208.18(a)(1))); id. at 510 (“If public officials at the
state and local level . . . would acquiesce in any torture [petitioner] is likely to
suffer, this satisfies CAT’s requirement that a public official acquiesce in the
torture . . . .”); see also Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1080 (9th
Cir. 2015) (“It is enough for her to show that she was subject to torture at the hands
of local officials.”). It is unclear whether the asylum officer or the IJ determined
whether the past acts Catalan testified that she experienced or the future harms she
fears constitute torture. Therefore, we remand for further consideration. See
Gonzales, 547 U.S. at 186–87.
***
4
In light of the foregoing, we grant the petition for review in No. 19-72896
and remand to the agency for further proceedings consistent with this disposition.1
See Martinez v. Sessions, 873 F.3d 655, 660 (9th Cir. 2017). We dismiss the
petition for review in No. 20-70188 as moot. Catalan’s motion for a stay of
removal in No. 19-72896 (Docket Entry No. 2) and her supplemental motion
(Docket Entry No. 10) are both denied as moot. We further deny Catalan’s motion
for judicial notice (Docket Entry No. 35) as moot because our review of that
motion was unnecessary for resolution of this appeal.
PETITION FOR REVIEW IN NO. 19-72896 GRANTED; REMANDED.
PETITION FOR REVIEW IN NO. 20-70188 DISMISSED AS MOOT.
1
Because we remand to the agency for further proceedings, we decline to
address Catalan’s due process challenges. However, we do note that the IJ in his
discretion “may allow [Catalan] to submit evidence to support [] her claim” upon
remand. See Bartolome v. Sessions, 904 F.3d 803, 813 (9th Cir. 2018) (citing 8
C.F.R. § 1003.42(c)); Immigration Court Practice Manual, ch. 7.4(e)(iv)(E).
5