FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT WILBER AGUSTIN ACEVEDO No. 19-72381 GRANADOS, AKA Wilber Acevedo, AKA Wilbert Acevedo, AKA Agency No. Wilbur Acevedo, A213-018-914 Petitioner, v. OPINION MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted October 22, 2020 San Francisco, California Filed March 24, 2021 Before: Richard R. Clifton, N. Randy Smith, and Ryan D. Nelson, Circuit Judges. Opinion by Judge Clifton 2 ACEVEDO GRANADOS V. GARLAND SUMMARY* Immigration The panel granted in part and denied in part Wilber Agustin Acevedo Granados’s petition for review of the Board of Immigration Appeals’ decision affirming an Immigration Judge’s denial of asylum, withholding of removal, and protection under the Convention Against Torture, and remanded, holding that the Board erred in misunderstanding Acevedo’s proposed social group based on his intellectual disability for purposes of asylum and withholding relief, and that substantial evidence supported the denial of CAT protection. The Board held that Acevedo’s proposed social group comprised of “El Salvadoran men with intellectual disabilities who exhibit erratic behavior” was not cognizable because it lacked particularity and social distinction. The panel concluded that the agency misunderstood Acevedo’s proposed social group, explaining that the Board and IJ treated the term “intellectual disability” as if it were applied by a layperson, instead of recognizing that the term as used in Acevedo’s application referred to an explicit medical diagnosis with several specific characteristics. The panel wrote that recognized that way, the clinical term “intellectual disability” may satisfy the “particularity” and “social distinction” requirements necessary to qualify for asylum and withholding of removal. However, because the IJ did not recognize the proposed social group before her, the panel * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. ACEVEDO GRANADOS V. GARLAND 3 remanded to the agency for fact-finding on an open record to determine if the group was cognizable. As to the particularity determination, the panel held that the Board and IJ erred by assuming that a determination of mental illness was a subjective one, to be carried out by a judge. The panel wrote that the particularity standard does not expect that IJs make independent diagnoses based on their observations in the courtroom. The panel noted that the record in this case contained professional evaluations conducted by recognized psychologists, retained by the government, who reported their findings in professional terms, and diagnosed Acevedo with an intellectual disability. The panel wrote that like finders of fact generally, the IJ was not required to accede to these expert opinions, but she was not entitled to disregard the terms of the psychologists’ diagnoses. The panel wrote that the fact that the average layperson may not be able to accurately identify an individual with an “intellectual disability” does not make the clinical definition subjective or amorphous, and that similarly, the possibility that individuals within the group may …
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