NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 17 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT FLORINDA NIZ-CHAVEZ, No. 19-73198 Petitioner, Agency No. A097-654-146 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of an Immigration Judge Argued and Submitted April 15, 2021 Seattle, Washington Before: GRABER and CALLAHAN, Circuit Judges, and SELNA,** District Judge. Dissent by Judge CALLAHAN Florinda Niz-Chavez, a native and citizen of Guatemala, reentered the United States illegally. The Department of Homeland Security (DHS) ordered her removed after reinstating an earlier removal order. Because she expressed fear of * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable James V. Selna, United States District Judge for the Central District of California, sitting by designation. persecution and torture if returned to Guatemala, Ms. Niz-Chavez was given a hearing before an asylum officer to determine whether her fears were reasonable. The asylum officer determined that Ms. Niz-Chavez was credible but that she had not suffered harm on account of a protected ground. Ms. Niz-Chavez sought review by an immigration judge (IJ). The IJ affirmed the asylum officer’s determination and Ms. Niz-Chavez timely petitioned the Ninth Circuit for review. We have jurisdiction to review the IJ’s decision. Alvarado-Herrera v. Garland, 993 F.3d 1187, 1191 (9th Cir. 2021). We review her “constitutional and legal challenges to the reasonable fear screening process as well as [her] factual challenge to the evidentiary support for the immigration judge’s decision.” Id. (citation omitted). We grant the petition and remand. 1. Ms. Niz-Chavez asserts that in her hearing before the IJ she was denied her right to counsel (at no expense to the government). In Orozco-Lopez v. Garland, No. 20-70127, 2021 WL 3745765, at *11 (9th Cir. 2021), we held that a non-citizen with a reinstated removal order has a statutory right to representation at her reasonable fear hearing before an IJ. However, Ms. Niz-Chavez waived this right when she expressly agreed to proceed without counsel. See Tawadrus v. Ashcroft, 364 F.3d 1099, 1103 (9th Cir. 2004); see also Orozco-Lopez, 2021 WL 3745765, at *10. 2. Ms. Niz-Chavez asserts that the IJ erred in holding that Guatemalan 2 women and Guatemalan women who are viewed as property cannot constitute cognizable groups under 8 U.S.C. § 1101(a)(42)(A). When it made its decision, the BIA did not have the benefit of Matter v. A-B-, 28 I. & N. Dec. 307 (A.G. 2021). Accordingly, we grant the petition and remand this matter to the BIA to reconsider Ms. Niz-Chavez’s claim on the merits. The petition is GRANTED, the IJ’s decision is VACATED, and the matter is REMANDED. 3 FILED Florinda Niz-Chavez v. Garland, No. 19-73198 SEP 17 2021 CALLAHAN, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS I respectfully dissent, not because I am not sympathetic to Ms. Niz-Chavez’s situation, but because I cannot conclude that she has …
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