Maria Picasa Hernandez v. Jefferson Sessions

NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT OCT 24 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS MARIA PICASA HERNANDEZ, AKA No. 13-73911 Maria Picaso Hernandez, Agency No. A079-794-556 Petitioner, v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted October 2, 2017 Portland, Oregon Before: PAEZ and BEA, Circuit Judges, and LAMBERTH,** District Judge. Petitioner Maria Picasa Hernandez (“Picasa Hernandez”), a citizen and native of Mexico, petitions for review of the Board of Immigrations Appeals’ (“BIA”) decision denying her claims for withholding of removal and protection * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Royce C. Lamberth, United States District Judge for the District of Columbia, sitting by designation. under the Convention Against Torture (“CAT”). We grant the petition and remand for further proceedings. We review “the [BIA’s] legal conclusions de novo and its factual findings for substantial evidence.” Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc) (internal citation omitted). 1. In rejecting Picasa Hernandez’s claim for withholding of removal, the BIA erred as a matter of law when it concluded that she could safely and reasonably relocate within Mexico.1 The governing regulation, 8 C.F.R. § 1208.16(b)(3), sets forth the factors that adjudicators “should consider” when assessing whether internal relocation would be reasonable, including “geographical limitations[] and social and cultural constraints, such as age, gender, health, and social and familial ties.” We have held that under section 1208.16(b)(3) adjudicators must consider the listed factors and decide their relative weight and relevance before making a determination on internal relocation. See, e.g., Afriyie v. Holder, 613 F.3d 924, 935-36 (9th Cir. 2010) (remanding because it was unclear “whether the BIA 1 The Immigration Judge (“IJ”) found Picasa Hernandez and her half- brother credible. The BIA assumed that Picasa Hernandez had “demonstrated past persecution.” Therefore, on her claim for withholding Picasa Hernandez is entitled to a presumption of future persecution under 8 C.F.R. § 1208.16(b), and the government bears the burden of establishing that Picasa Hernandez can safely and reasonably relocate within Mexico to avoid future harm. See Afriyie v. Holder, 613 F.3d 924, 934-35 (9th Cir. 2010). 2 considered the requisite regulatory factors pertinent to the reasonableness analysis” for Afriyie’s withholding and asylum claims). The BIA failed to consider all of the regulatory factors when it concluded that Picasa Hernandez could safely and reasonably relocate in Mexico. In particular, the BIA overlooked Picasa Hernandez’s age, gender, social and familial ties, and economic circumstances. Picasa Hernandez was 55 years old when she appealed to the BIA. She is now 59 years old. She has received only one year of primary school education. Her sole property is located in Achimaro, Mexico. The Sanchez brothers live adjacent to her property and have attacked Picasa Hernandez and her family on multiple occasions for trying ...

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