Omar Gallardo-Torres v. Jefferson Sessions

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 30 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT OMAR GALLARDO-TORRES, No. 16-71810 Petitioner, Agency No. A200-876-865 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 May 16, 2018 Portland, Oregon Before: TASHIMA, McKEOWN, and PAEZ, Circuit Judges. Petitioner Omar Gallardo-Torres petitions for review of the Board of Immigration Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”) denial of asylum, withholding of removal, and CAT protection. We have jurisdiction under 8 U.S.C. § 1252. We grant the petition and remand. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1. Protected Social Group. The IJ and BIA found that Gallardo-Torres had faced past persecution based on an experience in Michoacán, Mexico when Gallardo-Torres was seventeen. Members of a drug cartel shot Gallardo-Torres twice and shot his brother more than twenty times, ultimately killing his brother. The IJ and BIA, however, did not find that persecution occurred on account of Gallardo-Torres’s membership in a protected social group. The agency’s conclusion that Gallardo-Torres was not a member of the protected social group of “relatives of former drug cartel members” is not supported by substantial evidence. The BIA acknowledged that Gallardo-Torres’s testimony provided some evidence pertaining to his membership in the group, but stated that Gallardo-Torres’s testimony “represented a vague, subjective belief and is untethered to other objective evidence that would establish such a link.” This factual determination does not recognize or acknowledge that Gallardo-Torres’s asylum application—which he testified was accurate—stated that Gallardo- Torres’s brother was involved with a group of criminals, which did not have a name at that time, but he “think[s] they are part of ‘La Familia Michoacana’ now.” Gallardo-Torres additionally stated in his application that his older brother was involved in drug trafficking and described how his brother had refused to involve his friends and family in such activity, thereby angering the drug dealers. 2 Given the details in Gallardo-Torres’s asylum application that describe his brother’s membership in a drug cartel, coupled with his testimony that his brother was “possibly” in a drug cartel, any reasonable adjudicator would be compelled to conclude that Gallardo-Torres established his membership in the social group “family members of former drug cartel members.” 8 U.S.C. § 1252(b)(4)(B); INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992). Gallardo-Torres affirmed the contents of his application under oath and the IJ found his testimony credible. Gallardo-Torres presented sufficient evidence to establish his membership in this social group, as his asylum application and testimony were “credible, persuasive, and refer[ ] to specific facts.”1 8 U.S.C. § 1158(b)(1)(B)(ii). The BIA and IJ did not err in analyzing Gallardo-Torres’s other proposed social groups and determining that none of them was cognizable. The agency’s determination that the particular social group “witnesses who report drug cartel violence” lacks social distinctiveness is ...

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