Abad Flores Flores v. Merrick Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 10 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ABAD FLORES FLORES, No. 19-71140 Petitioner, Agency No. A213-016-220 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted March 16, 2022 San Francisco, California Before: CHRISTEN and BRESS, Circuit Judges, and FEINERMAN,** District Judge. Dissent by Judge BRESS Abad Flores Flores, a citizen of Mexico, seeks review of a Board of Immigration Appeals (BIA) decision dismissing his appeal of an Immigration Judge (IJ) order denying his requests for asylum, withholding of removal, and relief under * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Gary Feinerman, United States District Judge for the Northern District of Illinois, sitting by designation. the Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252. We grant the petition, vacate the BIA’s decision, and remand for further proceedings. Flores conceded that he has not experienced past persecution in Mexico. Instead, he claimed that authorities and mental health workers in Mexico would persecute and torture him based on his membership in a particular social group comprising persons with schizoaffective disorder who exhibit erratic behavior. 1. “To be eligible for asylum, a petitioner has the burden to demonstrate a likelihood of ‘persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.’” Sharma v. Garland, 9 F.4th 1052, 1059 (9th Cir. 2021) (quoting 8 U.S.C. § 1101(a)(42)(A)). The only ground that the BIA clearly articulated for denying asylum is that Flores’s brother—who, Flores testified, has “mental health issues . . . similar to schizophrenia”—is supported by his family and “has not had any issues with authorities and mental health workers in Mexico.” 1 1 The key passage in the BIA’s opinion reads: . . . [Flores] testified that: he would live with his parents in Mexico; it would be difficult for him to find employment and obtain his medications in that country; and that his sister, who also resides in Mexico, currently cares for his younger brother, who also suffers from mental health issues, which [Flores] said were similar to schizophrenia. [Flores] additionally testified that his sister is familiar with the extent 2 The record evidence supporting the BIA’s determination that Flores is similarly situated to his brother is as follows: When the government questioned Flores about his family’s medical history, he testified that his brother, Nicolas, lives in Mexico with their parents and “suffers from something like schizophrenia.” Flores further testified that Nicolas hallucinates and “was diagnosed in 2007,” but of his mental health issues and that his younger brother has not had any issues with authorities and mental health workers in Mexico. Although [Flores] argues on appeal that other evidence in the record plausibly establishes that his sister may …

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