NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 17 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT BYRON DENNIS ARRIAZA-PACHECO, No. 19-72133 Petitioner, Agency No. A200-244-537 v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted September 2, 2020 Pasadena, California Before: SILER,** BERZON, and LEE, Circuit Judges. Petitioner, Byron D. Arriaza-Pacheco, seeks review of the Board of Immigration Appeals’ (BIA) decision, which affirmed the Immigration Judge’s denial of withholding of removal. We grant the petition and remand. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. We have jurisdiction to review under 8 U.S.C. § 1252(a). The BIA’s determination that the Petitioner is not eligible for removal is reviewed under the substantial evidence standard. See Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir. 2010). Questions of law are reviewed de novo. See Pirir–Boc v. Holder, 750 F.3d 1077, 1081 (9th Cir. 2014). 1. Petitioners must exhaust administrative remedies before seeking judicial review. Rendon v. Mukasey, 520 F.3d 967, 972 (9th Cir. 2008). The key question is whether the BIA has had “an adequate opportunity to pass on the issue.” Diaz-Jimenez v. Sessions, 902 F.3d 955, 960 (9th Cir. 2018). Here, the BIA had prior opportunity to address both Arriaza-Pacheco’s CAT claim and his claim that the government of Guatemala is unwilling or unable to protect him, which were both raised in his initial appeal. The BIA rejected Arriaza-Pacheco’s arguments on both issues, and this court’s remand did not encompass them. The petitioner had no obligation to relitigate before the BIA issues the agency had already decided. See Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 874 (9th Cir. 2008). The exhaustion requirement was therefore satisfied for both claims. 2. Family is “the quintessential particular social group.” Rios v. Lynch, 807 F.3d 1123, 1128 (9th Cir. 2015). The group identified by Arriaza-Pacheco includes only his grandparents’ descendants (his sister, cousin, aunt, uncles and himself), and is easily defined with sufficient particularity to create a cognizable 2 19-72133 social group. See Rios v. Lynch, 807 F.3d 1123, 1127-28 (9th Cir. 2015). The BIA’s determination that Arriaza-Pacheco’s social group was not cognizable because it was insufficiently specific was not supported by substantial evidence. 3. An applicant for withholding can establish a rebuttable presumption of eligibility for relief through a showing of past persecution. 8 C.F.R. § 1208.16(b)(1)(i). Although the petitioner must show a “clear probability” of future persecution should he be deported to his home country, Tamang v. Holder, 598 F.3d 1083, 1091 (9th Cir. 2010), “past persecution gives rise to a presumption of a sufficient likelihood of future persecution” in an application to withhold removal, Ming Dai v. Sessions, 884 F.3d 858, 874 (9th Cir. 2018). To ...
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