FILED NOT FOR PUBLICATION OCT 23 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT NATALIA BALBUENA CRUZ, No. 18-70890 Petitioner, Agency No. A208-307-452 v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted October 21, 2020** San Francisco, California Before: HAWKINS, N.R. SMITH, and R. NELSON, Circuit Judges. Natalia Balbuena Cruz, a native and citizen of Mexico, petitions for review of the decision by the Board of Immigration Appeals (“BIA”) dismissing the appeal of the immigration judge’s (“IJ”) denial of her applications for asylum, * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252, and we grant the petition for review.1 We cannot determine on this record whether substantial evidence supports the BIA’s conclusion that Balbuena Cruz failed to establish eligibility for asylum and withholding of removal. The BIA affirmed the IJ’s conclusion that Balbuena Cruz did not establish past persecution, because she failed to establish that the Mexican government was “unable or unwilling” to protect Balbuena Cruz from her husband. See Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1062-63 (9th Cir. 2017) (en banc). In making this determination, the BIA erred by failing to address two of Balbuena Cruz’s arguments. See Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005) (“[T]he BIA [is] not free to ignore arguments raised by a petitioner.”). 1 Respondent’s motion to strike the brief of amici curiae is denied. 2 First, both the IJ and the BIA assumed (without any factual findings2) that the social worker (or psychologist) who assisted Balbuena Cruz was employed by or associated with the Mexican government and that assistance established that the Mexican government was willing and able to protect Balbuena Cruz (despite two incidents with police officers who refused to assist her). Balbuena Cruz challenged this conclusion, claiming that the social worker was a “non-government agent.” However, the BIA did not address her argument. Whether the social worker was associated with the Mexican government is essential to the conclusion that the Mexican government was able and willing to protect Balbuena Cruz from harm inflicted by her husband; thus, this is a disputed, critical fact. Therefore, the BIA erred by ignoring this argument. See Rodriguez v. Holder, 683 F.3d 1164, 1170 (9th Cir. 2012) (“Where the IJ has not made a finding of fact on a disputed matter, 2 Balbuena Cruz credibly testified that she went to a “clinic” in Tijuana and saw either a social worker or a psychologist; she did not provide any other information. The IJ did not make a factual finding regarding the affiliation of the social worker, only noting that the social worker ...
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals