NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 18 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ELVIA ESTELA VELASQUEZ- No. 19-72741 MARTINEZ, Agency No. A206-475-836 Petitioner, v. MEMORANDUM* MERRICK GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted February 2, 2021 San Francisco, California Before: THOMAS, Chief Judge, and IKUTA and NGUYEN, Circuit Judges. Dissent by Judge IKUTA Elvia Estela Velasquez-Martinez, a native and citizen of Honduras, applied for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The Immigration Judge (IJ) denied relief, and the Board of Immigration Appeals (BIA) dismissed the appeal. Velasquez-Martinez now petitions for review. We have jurisdiction under 8 U.S.C. § 1252(a), and we grant * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. the petition and remand for further consideration. 1. Before the BIA, Velasquez-Martinez asserted that she should be excused from the one-year asylum filing deadline at 8 U.S.C. § 1158(a)(2)(B) as a class member in Mendez Rojas v. Wolf, No. 2:16-cv-01024 (W.D. Wash. filed June 30, 2016). Though the district court’s summary judgment order was stayed when the BIA issued a decision in Velasquez-Martinez’s appeal, the defendants, including the Executive Office for Immigration Review, had agreed, pursuant to an interim stay agreement, “to find all class members’ asylum applications were timely filed in pending adjudications before . . . the Board of Immigration Appeals . . . during the stay.” See Interim Stay Agreement, Mendez Rojas v. Wolf, No. 2:16-cv-01024, at *1 (W.D. Wash. Aug. 2, 2018), ECF 69-1.1 Because the BIA failed to address Velasquez-Martinez’s assertion of class membership, we remand for consideration of Velasquez-Martinez’s claim. See Sagaydak v. Gonzales, 405 1 We disagree with the dissent’s view that Velasquez-Martinez failed to exhaust her Mendez Rojas argument before the BIA. Exhaustion requires a legal claim to be sufficiently raised so as “to put the BIA on notice of what was being challenged.” Bare v. Barr, 975 F.3d 952, 960 (9th Cir. 2020). Velasquez- Martinez put the BIA on notice that she believed she warranted an exception to the one-year filing deadline under Mendez Rojas. Because the BIA was on notice, it could not ignore her argument and was required to address it consistently with the binding stay agreement. 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.”). 2 F.3d 1035, 1040 (9th Cir. 2005).2 2. Velasquez-Martinez argues that the BIA erred in holding that her proffered particular social group, “female victims of gender-based violence,” is impermissibly circular.3 We review legal questions de novo. Arrey v. Barr, 916 F.3d 1149, 1157 (9th Cir. 2019). “[T]he conclusion that a proposed social group is impermissibly circular may not be reached summarily merely because the proposed group mentions harm.” Diaz-Reynoso v. Barr, 968 F.3d 1070, 1086 (9th Cir. …
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