J.O.A. v. Garland

FILED NOT FOR PUBLICATION SEP 21 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT J.O.A., No. 22-30 Petitioner, Agency No. A213-016-684 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted August 18, 2023 Pasadena, California Before: TASHIMA, CHRISTEN, and SUNG, Circuit Judges. Petitioner J.O.A., a native and citizen of Mexico, petitions for review of a decision of the Board of Immigration Appeals (BIA) dismissing his appeal of the removal order entered by the Immigration Judge (IJ). The IJ denied his application for asylum, withholding of removal, and protection under the Convention Against * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252. We deny his petition as to asylum and withholding, but we grant the petition as to his CAT claim. 1. The BIA did not err in concluding that Petitioner failed to establish the cognizability of his proposed social group. See Rodriguez Tornes v. Garland, 993 F.3d 743, 750 (9th Cir. 2021) (“Where the BIA conducts its own review of the evidence and law, rather than adopting the IJ’s decision, our review is limited to the BIA’s decision, except to the extent the IJ’s opinion is expressly adopted.” (quoting Rodriguez v. Holder, 683 F.3d 1164, 1169 (9th Cir. 2012))). It is true that “[e]vidence such as country conditions reports, expert witness testimony, and press accounts of discriminatory laws and policies, historical animosities, and the like may establish that a group exists and is perceived as ‘distinct’ or ‘other’ in a particular society.” Diaz-Torres v. Barr, 963 F.3d 976, 980 (9th Cir. 2020) (quoting Pirir-Boc v. Holder, 750 F.3d 1077, 1084 (9th Cir. 2014)). However, as in Diaz-Torres, Petitioner’s evidence does not establish that Mexican society views his proposed social group as distinct. Instead, his evidence “paints a picture of all segments of the Mexican population being adversely affected by the brutality of drug cartels” and “indicates that almost anybody can be targeted by the drug cartels.” Id. at 981. We therefore deny the petition as to Petitioner’s asylum and withholding of removal claims. 2 2. We grant the petition as to the CAT claim. Petitioner’s evidence, including his testimony, his declaration, the psychological evaluation, and the medical evaluation, establishes that he was subjected to torture. Four armed men took him from his home and beat him to try to coerce him to work for the drug cartel. When he reported the incident to the police, they said they could not do anything, and an officer advised him to leave the city because the cartel members would not leave him alone. A few years later, several armed men took Petitioner from his home, tied him up, forced him to watch another man being burned alive and threatened to do the same to him, burned him …

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