FILED NOT FOR PUBLICATION MAY 6 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT CARLOS ENRIQUE MONTIEL- No. 16-73949 GUERRERO, Agency No. A077-300-601 Petitioner, v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted December 11, 2019 Pasadena, California Before: N.R. SMITH and WATFORD, Circuit Judges, and KORMAN,** District Judge. Carlos Montiel-Guerrero, a native and citizen of Mexico, petitions for review of the denial by the Board of Immigration Appeals (BIA) of his application * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. for withholding of removal and Convention Against Torture (CAT) protection. We have jurisdiction under 8 U.S.C. § 1252(a)(1), and we grant the petition. 1. Montiel-Guerrero applied for withholding of removal, asserting that his “life or freedom would be threatened” if he returned to Mexico because of his “membership in a particular social group.” See Ahmed v. Keisler, 504 F.3d 1183, 1199 (9th Cir. 2007) (quoting 8 U.S.C. § 1231(b)(3)(A)). On appeal, the government argued that Montiel-Guerrero alleged a new social group, which he did not exhaust below.1 We agree that Montiel-Guerrero rephrased the title of his proposed social group. However, reviewing the record, his description of his proposed social group has not changed. Before the immigration judge (IJ), Montiel-Guerrero described his group as a “very unique particular group of people who are easily identified, distinct from just any other deportees.” Montiel- Guerrero then described himself as a person “approximately 6 feet” with “fair skin, fair eyes,” and a Caucasian appearance. Before the BIA, Montiel-Guerrero argued that he has immutable traits as shown by “the officers’ statement about Mr. Montiel not looking Mexican and not being Mexican.” He further argued that “phenotypically” he “has characteristics distinguishing [him] from the larger 1 At oral argument, Montiel-Guerrero’s counsel conceded that he failed to exhaust this issue and withdrew the withholding of removal claim. Counsel has now filed a motion to withdraw the concession (Dkt. No. 45), which we grant. 2 culture, regardless of ethnicity.” Finally, in his opening brief before this court, he again argues that his group contains immutable characteristics, because “the Mexican authorities identified him as a non-Mexican migrant without national ties and therein susceptible to their criminal scheme.” Neither our court nor the BIA has specifically addressed whether a proposed social group’s title or the petitioner’s description of that group is the controlling delineation. However, the Attorney General has suggested that, “[i]n analyzing these claims, adjudicators must be careful to focus on the particular social group as it is defined by the applicant and ask whether that group is distinct in the society in question.” See Matter of L-E-A-, 27 I. & N. Dec. 581, 594 (A.G. 2019); see also Matter of ...
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