Leobaldo Ramos-Vasquez v. Jefferson Sessions

FILED NOT FOR PUBLICATION FEB 01 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT LEOBALDO RAMOS-VASQUEZ; No. 08-75037 LEIDY RAMOS-VASQUEZ; ROSE DALIA RAMOS-VASQUEZ, Agency Nos. A098-291-127 A098-291-128 Petitioners, A098-291-129 v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted January 30, 2018** San Francisco, California Before: GRABER and CHRISTEN, Circuit Judges, and TUNHEIM,*** Chief District Judge. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes that this case is suitable for decision without oral argument. Fed. R. App. P. 34(a)(2). *** The Honorable John R. Tunheim, Chief United States District Judge for the District of Minnesota, sitting by designation. Petitioners Leobaldo Ramos-Vasquez, Rose Dalia Ramos-Vasquez, and Leidy Ramos-Vasquez, who are natives and citizens of Guatemala, petition for review of a final order of removal entered by an immigration judge ("IJ"). The IJ entered that order following a remand from the Board of Immigration Appeals ("BIA"), which had sustained the government’s appeal of a different IJ’s grant of asylum to Petitioners.1 We deny the petition in part, grant the petition in part, and remand to the BIA. 1. We reject the argument that the BIA never reversed the grant of humanitarian asylum to Petitioners Rose Dalia and Leobaldo Ramos-Vasquez and that they are thus entitled to asylum. The BIA found that none of the Petitioners established past persecution, which is a prerequisite to obtaining humanitarian asylum. 8 C.F.R. § 208.13(b)(1). Accordingly, the BIA necessarily reversed the IJ’s grant of humanitarian asylum. 2. We are unpersuaded by Petitioners’ argument that this case should be remanded so that their claim for relief under the Convention Against Torture ("CAT") can be addressed by the BIA. Petitioners failed to press that claim before 1 Because the BIA remanded to the IJ to consider both Petitioners’ eligibility for voluntary departure and "any other relief to which they may be entitled," the BIA’s decision did not constitute a final order of removal. Abdisalan v. Holder, 774 F.3d 517, 526 (9th Cir. 2015) (en banc). 2 the IJ after their case was remanded, so they cannot now complain that the agency has not had an adequate opportunity to address the claim. 3. We grant the petition insofar as Petitioners seek review of the BIA’s determination regarding their eligibility for asylum. The BIA ruled that Petitioners had failed to establish a well-founded fear of persecution on account of a statutory ground. The BIA gave two independent reasons for that conclusion: (1) Petitioners would not be considered street children, and (2) "street children in Guatemala" do not comprise a "particular social group." a. The first ground amounted to a rejection of the IJ’s factual finding that Petitioners would be considered street children. See In re A-R-C-G-, 26 I. & N. Dec. 388, 391 (B.I.A. 2014) ("The question whether a person is ...

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