Diaz-Reynoso v. Barr

• Decision Date: 07 August 2020
• Docket Number: No. 18-72833,18-72833
• Citation: 968 F.3d 1070
• Parties: Sontos Maudilia DIAZ-REYNOSO, aka Sontos Maurilla Diaz-Reynoso, Petitioner, v. William P. BARR, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

968 F.3d 1070

Sontos Maudilia DIAZ-REYNOSO, aka Sontos Maurilla Diaz-Reynoso, Petitioner,

v.William P. BARR, Attorney General, Respondent.

No. 18-72833

United States Court of Appeals, Ninth Circuit.

Submitted March 24, 2020^* San Francisco, California

Filed August 7, 2020

CHRISTEN, Circuit Judge:

Sontos Maudilia Diaz-Reynoso, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (BIA) order dismissing her appeal of an Immigration Judge's (IJ) order denying her application for withholding of removal and relief under the Convention Against Torture (CAT). Diaz-Reynoso seeks withholding of removal based on her fear that she would be persecuted in Guatemala on account of her membership in the particular social group of "indigenous women in Guatemala who are unable to leave their relationship." Diaz-Reynoso argues she is entitled to relief under CAT because, if returned to Guatemala, the Guatemalan government would acquiesce in torture she would suffer at the hands of her husband.

On her withholding claim, the BIA concluded that Diaz-Reynoso's proposed particular social group was not cognizable, relying on the Attorney General's decision in Matter of A-B- , 27 I. & N. Dec. 316 (A.G. 2018). With respect to Diaz-Reynoso's CAT claim, the BIA concluded that Diaz-Reynoso failed to establish that the government of Guatemala would acquiesce in any torture she might suffer. Because the BIA's decision on both bases for relief departs from its own precedent and is contrary to this court's case law, we grant the petition for review and remand for further proceedings.

I

Diaz-Reynoso was born in 1989 in the small, rural town of Yamoj, in the Guatemalan highlands. She is a member of the indigenous group known as Mam. In 2008, Diaz-Reynoso moved in with a man named Arnoldo Vasquez-Juarez, who is also Mam. Although they did not legally marry, Diaz-Reynoso and Vasquez-Juarez had a common-law marriage and Diaz-Reynoso refers to Vasquez-Juarez as her husband.

Vasquez-Juarez subjected Diaz-Reynoso to physical and sexual abuse. Among other things, he forced Diaz-Reynoso to work in the coffee fields without pay, and to have sex with him. When Diaz-Reynoso did not comply with his demands, Vasquez-Juarez attacked her, hitting her on her head and all over her body, sometimes with a belt. Diaz-Reynoso testified that she was attacked weekly, and that the resulting bruises sometimes lasted for eight to ten days.

In 2012, after four years of living with Vasquez-Juarez, Diaz-Reynoso fled and entered the United States without documentation. She was apprehended, and after roughly a month in detention, returned to Guatemala. Diaz-Reynoso moved back in with her family in Yamoj.

As soon as Diaz-Reynoso returned, Vasquez-Juarez came to find her. Vasquez-Juarez told Diaz-Reynoso that if she did not return to live with him, he would kill her, kill her daughter,¹ or harm her mother.

Diaz-Reynoso returned to live with Vasquez-Juarez for about a year. The abuse got worse during that time. Diaz-Reynoso then escaped and went to live with a friend in another town for roughly a year. She was in hiding during this period and did not leave her friend's house. After that, Diaz-Reynoso returned to her family home in the hope that Vasquez-Juarez had forgotten about her, but Vasquez-Juarez found Diaz-Reynoso and ordered her to come back with him. At the urging of her mother, Diaz-Reynoso again fled to the United States.

Diaz-Reynoso was apprehended near Topawa, Arizona on October 29, 2014, and her prior removal order was reinstated pursuant to 8 U.S.C. § 1231(a)(5). She pled guilty to illegal entry in violation of 8 U.S.C. § 1325(a)(1), and was sentenced to thirty days imprisonment.

While Diaz-Reynoso was in detention, an asylum officer interviewed her and she expressed fear of returning to Guatemala. The asylum officer concluded that she had established a credible fear of persecution and referred her to removal proceedings before an immigration judge. Diaz-Reynoso filed an application for withholding of removal and protection under CAT. In her counseled brief, Diaz-Reynoso defined her particular social group as "Guatemalan indigenous women who are unable to leave their relationship," and advanced evidence of a number of factors that prevented her from leaving.

The IJ issued a written decision denying Diaz-Reynoso's application for withholding of removal and relief under CAT. The IJ found Diaz-Reynoso credible, but concluded that because much of her account was inconsistent with her own testimony and other record evidence, "significant portions of her testimony [were] entitled to little weight." On the withholding claim, the IJ did not rule on whether Diaz-Reynoso established the existence of a cognizable particular social group, but concluded that she did not establish membership in her proffered particular social group, did not show that she would more likely than not suffer persecution, and did not demonstrate that the Guatemalan government would be unable or unwilling to protect her. On her CAT claim, the IJ concluded that Diaz-Reynoso failed to establish she would more likely than not be tortured if removed to Guatemala, and that she did not demonstrate that her past abuse or feared future abuse would occur in the context of government control, authority, or acquiescence. The IJ further concluded that Diaz-Reynoso failed to seek protection from law enforcement, and found she could safely and reasonably avoid abusive conduct by relocating within Guatemala. Diaz-Reynoso timely appealed to the BIA.

The BIA dismissed Diaz-Reynoso's appeal. On withholding, the BIA did not rely on the IJ's rationale. Instead, the BIA concluded that Diaz-Reynoso's proposed particular social group was not cognizable in light of Matter of A-B- , 27 I. & N. Dec. at 316.² On CAT, the BIA concluded that Diaz-Reynoso had failed to establish that any Guatemalan public official would more likely than not consent to or acquiesce in any torture she may suffer.

II

We have jurisdiction to review final orders of removal pursuant to 8 U.S.C. § 1252(a)(5). "Our review is limited to those grounds explicitly relied upon by the [BIA]." Budiono v. Lynch , 837 F.3d 1042, 1046 (9th Cir. 2016). Where the BIA writes its own decision, as it did here, we review the BIA's decision, except to the extent it expressly adopts the IJ's decision. Rodriguez v. Holder , 683 F.3d 1164, 1169 (9th Cir. 2012).

We review de novo the BIA's determinations on questions of law. Pirir-Boc v. Holder , 750 F.3d 1077, 1081 (9th Cir. 2014). We review for substantial evidence the BIA's factual findings, which "should be upheld ‘unless the evidence compels a contrary result.’ " Budiono , 837 F.3d at 1046 (quoting Hernandez-Mancilla v. Holder , 633 F.3d 1182, 1184 (9th Cir. 2011) ). Whether Diaz-Reynoso's particular social group is cognizable is a question of law. Conde Quevedo v. Barr , 947 F.3d 1238, 1242 (9th Cir. 2020) ; see also Barbosa v. Barr , 926 F.3d 1053, 1059 (9th Cir. 2019).

III

To qualify for withholding of removal, a petitioner must demonstrate that, if removed to her home country, her life would be threatened on account of any one of five enumerated grounds: race, religion, nationality, membership in a particular social group, or political opinion. Mendoza-Alvarez v. Holder , 714 F.3d 1161, 1163–64 (9th Cir. 2013) (per curiam). At issue here is "membership in a particular social group"—specifically, the cognizability of Diaz-Reynoso's proffered social group. 8 U.S.C. § 1231(b)(3)(A) ; see also Reyes v. Lynch , 842 F.3d 1125, 1132 n.3 (9th Cir. 2016) (noting that establishing the "existence" of a cognizable social group is a separate requirement from establishing "membership" in the group).

The Attorney General's and the BIA's constructions of ambiguous statutory terms are entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Pirir-Boc , 750 F.3d at 1081 ; Jiang v. Holder , 611 F.3d 1086, 1091–92 (9th Cir. 2010). Because we have already concluded that the phrase "particular social group" is ambiguous, Henriquez-Rivas v. Holder , 707 F.3d 1081, 1083 (9th Cir. 2013) (en banc), we must adhere to an agency interpretation of that term, so long as it is reasonable, id. at 1087. An interpretation fails this step if it is "arbitrary or capricious in substance." Judulang v. Holder , 565 U.S. 42, 52 n.7, 132 S.Ct. 476, 181 L.Ed.2d 449 (2011) (quoting Mayo Found. for Med. Educ. & Research v. United States , 562 U.S. 44, 53, 131 S.Ct. 704, 178 L.Ed.2d 588 (2011) ); see also Gomez-Sanchez v. Sessions , 892 F.3d 985, 993 (9th Cir. 2018).

A

The BIA first construed the phrase "particular social group" in Matter of Acosta , 19 I. & N. Dec. 211 (BIA 1985), overruled in part on other grounds as stated in Matter of Mogharrabi , 19 I. & N. Dec. 439, 441 (BIA 1987). There, the BIA explained that members of a particular social group must share a "common, immutable characteristic." Id. at 233. An immutable characteristic is one that is either: (1) "beyond the power of an individual to change," or (2) "so fundamental to [individual] identity or conscience that it ought not be required to be changed." Id. at 233–34.

Over time, "Acosta ’s immutable characteristic test ‘led to confusion and a lack of consistency as adjudicators struggled with various possible social groups, some of which appeared to be created exclusively for asylum purposes.’ " Reyes , 842 F.3d at 1134 (quoting Matter of M-E-V-G- , 26 I. & N. Dec. 227, 231 (BIA 2014) ). Thus, beginning with Matter of C-A- , 23 I. & N. Dec. 951, 957–59 (BIA 2006), the BIA refined the Acosta standard by stating that an applicant must also demonstrate that his or her proposed particular social group has "social visibility" and "particularity." See Henriquez-Rivas , 707 F.3d at 1084 ; see also Matter of A-M-E- & J-G-U- , 24 I. & N. Dec. 69, 74–76 (BIA 2007).

The BIA later...