NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 2 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT BERNARDO ACOSTA-PERALTA, No. 19-72033 Petitioner, Agency No. A087-542-854 v. MEMORANDUM* ROBERT M. WILKINSON, Acting Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted February 3, 2021 Phoenix, Arizona Before: W. FLETCHER, MILLER, and HUNSAKER, Circuit Judges. Bernardo Acosta Peralta petitions for review of an order of the Board of Immigration Appeals dismissing his appeal from an immigration judge’s denial of his application for withholding of removal and protection under the Convention Against Torture (CAT). We refer to petitioner as “Bernardo” to distinguish him from his son, Victor Edgardo Acosta Peralta, whose petition we resolve today in a * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. separate memorandum disposition. See Victor Edgardo Acosta Peralta v. Wilkinson, No. 19-71297 (9th Cir. Mar. 2, 2021). We have jurisdiction under 8 U.S.C. § 1252(a)(1). We grant the petition and remand to the Board for further proceedings. 1. “‘Where, as here, the BIA cites Matter of Burbano, 20 I. & N. Dec. 872, 874 (B.I.A. 1994) and also provides its own review of the evidence and law, we review both the IJ’s and the BIA’s decisions.’” Cordoba v. Barr, 962 F.3d 479, 481 (9th Cir. 2020) (brackets omitted) (quoting Ali v. Holder, 637 F.3d 1025, 1028 (9th Cir. 2011)). Because the immigration judge found that Bernardo’s testimony was credible, a finding the Board did not disturb, we assume the accuracy of Bernardo’s “factual assertions” and “determine whether the facts, and their reasonable inferences, satisfy the elements of the claim for relief.” Gonzalez- Caraveo v. Sessions, 882 F.3d 885, 894 (9th Cir. 2018); see Kaur v. Holder, 561 F.3d 957, 962–63 (9th Cir. 2009). 2. The agency did not consider Bernardo’s family-based particular social group. Bernardo sufficiently raised that group before the agency, and we therefore have jurisdiction to consider it. See Garcia v. Lynch, 786 F.3d 789, 793 (9th Cir. 2015) (per curiam). In Bernardo’s addendum to his notice of appeal to the Board, for example, he asserted that “his entire family is the social group targeted by the persecuting men” and “[t]he social group is the family and what the group wants is 2 their land.” To be sure, during closing arguments, the immigration judge instructed Bernardo’s counsel to “say [the particular social group] in one sentence,” and counsel responded: “landholders of strategic lands.” Given this exchange, it is perhaps unsurprising that the agency framed the relevant group as it did. But that narrow construction—which Bernardo’s counsel resisted giving until the immigration judge required him to sum up the group “in one sentence”—conflicts with the apparent thrust of Bernardo’s argument, which seems to have been that his “entire family is the social group,” and their landholder status was a reason why their persecutors targeted them. Bernardo and his …
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