NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 27 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT KAREN VERGARA SOTO; LUIS No. 21-1095 FELIPE SOTO, Agency Nos. A216-531-753 Petitioners, A216-531-754 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 9, 2023 San Francisco, CA Before: FRIEDLAND and R. NELSON, Circuit Judges, and KATZMANN**, Judge. Dissent by Judge R. NELSON. Petitioner, Karen Vergara Soto, a native and citizen of Colombia, petitions this court for review of an order of the Board of Immigration Appeals (BIA) upholding the denial by the Immigration Judge (IJ) of her application for asylum and withholding of removal. Her husband, Luis Felipe Soto, was * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Gary S. Katzmann, Judge for the U.S. Court of International Trade, sitting by designation. included on her application as a derivative. We grant the petition and remand her asylum and withholding of removal claims to the agency for further consideration. The BIA concluded that the harm Vergara Soto experienced did not rise to the level of persecution and that she lacked a well-founded fear of persecution on account of a protected ground because, even if her proposed particular social groups (PSGs) were cognizable, she had not demonstrated a nexus between them and the potential future harm. It did not evaluate, however, all of Vergara Soto’s proposed PSGs—specifically, it failed to evaluate her claims with respect to the social group of her family.1 Prior to her hearing before the IJ, Vergara Soto had defined three PSGs: daughters of a wealthy business owner, granddaughters of a wealthy landowner, and wealthy, fair-skinned young females. During her hearing, she added two additional groups: relative of wealthy business owner and relative of wealthy landowner. She explained that some of her evidence was in relation to “the particular social group of the family related to the business and the wealthy landowner.” Vergara Soto indicated, by use of the term “the family,” that she was referring narrowly to relatives of a specific wealthy business owner (her 1 Although Vergara Soto’s brief to our court could have been clearer, we disagree with the dissent that the brief failed to identify this error altogether. The brief argues that the IJ misunderstood the family-membership basis for Vergara Soto’s PSG and that the IJ did not consider the proper evidence as a result. 2 21-1095 father) and relatives of a specific wealthy landowner (her grandfather)—i.e., to the Vergara family. But the IJ interpreted these PSGs generally, as if to mean relatives of any wealthy business owner or landowner. The IJ rejected the group as not cognizable because “the characteristic of wealth or affluence is simply too subjective, inchoate, and variable,” indicating that the IJ understood “wealthy” as the operative characteristic defining the new PSGs rather than as a …
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