FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT SONTOS MAUDILIA DIAZ-REYNOSO, No. 18-72833 AKA Sontos Maurilla Diaz- Reynoso, Agency No. Petitioner, A205-256-857 v. OPINION WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted March 24, 2020* San Francisco, California Filed August 7, 2020 Before: Ronald M. Gould, Morgan Christen, and Daniel A. Bress, Circuit Judges. Opinion by Judge Christen; Partial Concurrence and Partial Dissent by Judge Bress * The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 DIAZ-REYNOSO V. BARR SUMMARY** Immigration Granting Sontos Diaz-Reynoso’s petition for review of the Board of Immigration Appeals’ decision affirming the denial of her application for withholding of removal and protection under the Convention Against Torture, and remanding, the panel held that the Board misapplied Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018), as well as Board and circuit precedent, in concluding that Diaz-Reynoso’s proposed social group comprised of “indigenous women in Guatemala who are unable to leave their relationship” was not cognizable, and that she failed to establish that the government of Guatemala would acquiesce in any possible torture. The panel rejected Diaz-Reynoso’s contention that Matter of A-B- was arbitrary and capricious and therefore not entitled to Chevron deference. The panel concluded that, despite the general and descriptive observations set forth in the opinion, Matter of A-B- did not announce a new categorical exception to withholding of removal for victims of domestic violence or other private criminal activity, but rather it reaffirmed the Board’s existing framework for analyzing the cognizability of particular social groups, requiring that such determinations be individualized and conducted on a case-by-case basis. The panel observed that the Board rejected Diaz- Reynoso’s proposed social group, with almost no analysis, ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. DIAZ-REYNOSO V. BARR 3 because it “suffered from the same circularity problem articulated by the Attorney General in Matter of A-B-.” The panel explained that in doing so, the Board appeared to misapprehend the scope of Matter of A-B- as forbidding any mention of feared harm within the delineation of a proposed social group. The panel concluded that this was error, explaining that Matter of A-B- did not announce a new rule concerning circularity, but instead merely reiterated the well- established principle that a particular social group must exist independently of the harm asserted. The panel recognized that a proposed social group may be deemed impermissibly circular if, after conducting the proper case-by-case analysis, the Board determines that the group is defined exclusively by the fact that its members have been subjected to harm. The panel explained, however, that a proposed social group is not impermissibly circular merely because the proposed group mentions harm. The panel concluded that the Board also erred in assuming that domestic violence was ...
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