NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 3 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ELMER GIOVANNY ROGEL LOPEZ, No. 19-72209 Petitioner, Agency No. A206-498-052 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted April 12, 2021 Pasadena, California Before: PAEZ and VANDYKE, Circuit Judges, and KORMAN,** District Judge. Partial Dissent by Judge VANDYKE Petitioner Elmer Giovanny Rogel Lopez, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA”) decisions affirming the Immigration Judge’s (“IJ”) denial of his claims for asylum, * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law and review for substantial evidence the agency’s factual findings. Diaz-Reynoso v. Barr, 968 F.3d 1070, 1076 (9th Cir. 2020). For the reasons explained below, we grant the petition and remand. 1. Rogel Lopez first argues that he is eligible for asylum and withholding of removal because he was persecuted on account of his “membership in a particular social group.” 8 C.F.R. § 1208.13(b)(1) (asylum); 8 U.S.C. § 1231(b)(3)(A) (withholding of removal). To establish eligibility on that basis, a petitioner must show “that the group is: ‘(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.’” Diaz-Reynoso, 968 F.3d at 1077 (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014)). Reviewing de novo the cognizability of a proposed particular social group, id. at 1076, we conclude that the IJ and BIA erred by misconstruing Rogel Lopez’s proposed particular social group. The IJ and BIA characterized Rogel Lopez’s proposed group as “men who are not gang members in El Salvador who witnessed gang crimes and are persecuted by such gang members for the belief that they reported the crimes.” But Rogel Lopez argued before the agency that he was persecuted on account of 2 his imputed membership in a slightly different group, one defined as Salvadoran men who are not gang members, witnessed a gang crime in El Salvador, and reported that crime to the police. See Pirir-Boc v. Holder, 750 F.3d 1077, 1083 n.6 (9th Cir. 2014) (noting that the BIA has recognized imputed membership in a particular social group as a proper basis for asylum). Because the agency considered the wrong social group, “and neither the BIA nor the Ninth Circuit is authorized to undertake the initial factfinding necessary to determine the viability of the group,” we remand to the IJ to consider Rogel Lopez’s proposed group in the first instance. Alanniz v. Barr, 924 …
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals