Pinheiro v. Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 17 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT LIVIA DE DOS SANTOS PINHEIRO, No. 21-765 Petitioner, Agency No. A073-944-789 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted March 8, 2023 San Francisco, California Before: FRIEDLAND, R. NELSON, Circuit Judges, CARDONE, District Judge**. Petitioner Livia de Dos Santos Pinheiro, a native and citizen of Brazil, petitions for review of an order of the Board of Immigration Appeals (BIA) denying her motion to reopen proceedings regarding her application for deferral of removal under the Convention Against Torture (CAT). We grant the petition. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Kathleen Cardone, United States District Judge for the Western District of Texas, sitting by designation. 1. The BIA abused its discretion in denying Pinheiro’s motion to reopen her CAT claim based on changed country conditions. Pinheiro had explained in her motion to reopen that she feared torture based on the risks posed by being an LGBT individual and a woman. Despite her explicit contentions that “gender based violence against women” had increased in Brazil, the BIA held that “her claim that she will be tortured is not premised on her gender” and then disregarded evidence in the record discussing violence against women in Brazil. The BIA ultimately rejected Pinheiro’s changed country conditions argument on the ground that Pinheiro did not establish prima facie eligibility for relief under CAT. When considering a CAT claim, however, the agency is required to consider all of the country conditions evidence and whether all of the petitioner’s characteristics cumulatively give rise to a probable likelihood that petitioner would be subject to torture. See Cole v. Holder, 659 F.3d 762, 770, 775 (9th Cir. 2011) (explaining that “all evidence relevant to the possibility of future torture shall be considered” (quoting 8 C.F.R. § 1208.16(c)(3)) when assessing the “aggregate risk that [the petitioner] would face”); see also Velasquez-Samayoa v. Garland, 49 F.4th 1149, 1154-56 (9th Cir. 2022). Because the agency failed to consider how the evidence of violence against women in Brazil would contribute to Pinheiro’s total risk of torture for purposes of determining her prima facie eligibility for CAT relief, we remand for the agency to properly evaluate all of the country conditions evidence in the first 2 21-765 instance. See Kamalthas v. INS, 251 F.3d 1279, 1284 (9th Cir. 2001) (remanding CAT claim for further consideration where the BIA denied a motion to reopen based on changed country conditions without considering all of the relevant country conditions in the record). 2. The BIA did not abuse its discretion in rejecting the ineffective assistance of counsel claim Pinheiro asserted as a basis for reopening. Pinheiro argued that prior counsel’s failure to submit a declaration, affidavits, or other evidence related to her …

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