NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 19 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT RAYMUNDO GARCIA-GADAY, AKA No. 18-72346 Raymundo Marin-Gaday, AKA Raymundo Marin-Monroe, AKA Hernando Nolasco- Agency No. A077-229-923 Garcia, Petitioner, MEMORANDUM* v. WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted November 4, 2019 Seattle, Washington Before: GOULD and NGUYEN, Circuit Judges, and R. COLLINS,** District Judge. Petitioner Raymundo Garcia-Gaday petitions for review of the Board of Immigration Appeals’ (BIA) denial of his claims for withholding of removal to * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Raner C. Collins, United States District Judge for the District of Arizona, sitting by designation. Mexico under the Immigration and Nationality Act (INA) and for protection under the Convention Against Torture (CAT), as well as the BIA’s denial of his motion to remand for the Immigration Judge (IJ) to consider additional evidence. We grant his petition in part as to the CAT claim and remand for the BIA to conduct further proceedings consistent with this decision, and we deny his petition for review on all other grounds. 1. When adjudicating a claim for CAT protection, the IJ and BIA must consider all of the evidence and argument presented. Cole v. Holder, 659 F.3d 762, 771–72 (9th Cir. 2011). A failure to do so is legal error, and the agency’s decision cannot stand. Id. Here, the IJ did not consider potentially probative evidence of government acquiescence to torture by not addressing in its CAT analysis Garcia-Gaday’s explicit allegations that police at a casino laughed off his pleas for protection from a cartel he feared, and that the police later tried to put him in their patrol car to turn him over to the cartel. The IJ instead emphasized his testimony elsewhere that Garcia-Gaday generally had “no problems” with the Mexican government, without even mentioning this specific testimony about alleged police disregard of his concerns about the cartel and his alleged attempted kidnapping by the police. Because the IJ found Garcia-Gaday “generally credible,” “failing to mention [that] highly probative or potentially dispositive evidence” and “give reasoned consideration to that evidence” was error. Id. The 2 BIA could not cure this error by conducting its own factual analysis. Rodriguez v. Holder, 683 F.3d 1164, 1172–73 (9th Cir. 2012). We do not, however, agree with Petitioner that the record compels the conclusion that he is more likely than not to be tortured upon returning to Mexico, and so we do not reverse the BIA’s decision. Rather, we grant in part Garcia- Gaday’s petition for review of the denial of his CAT claim and remand for rehearing of the claim, on an open record. 2. Garcia-Gaday has not established that the IJ failed to consider whether he was persecuted on account of the “particular social group” of family ...
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