U.S. Court of Appeals for the Ninth Circuit, 2010

Gonzalez-Garcia v. Holder

Gonzalez-Garcia v. Holder
U.S. Court of Appeals for the Ninth Circuit · Decided August 3, 2010 · Pregerson, Canby, Berzon
390 F. App'x 756

Gonzalez-Garcia v. Holder

Opinion

.MEMORANDUM **

Sonia Areli Gonzalez-Garcia and her daughter Merci Selene Gonzalez-Garcia, natives and citizens of El Salvador,' petition for review of the Board of Immigration Appeals’ (“BIA”) order dismissing their appeal from an immigration judge’s decision denying their applications for asylum and withholding of removal. We have jurisdiction- under 8 U.S.C. § 1252. We review for substantial evidence, Lopez v. Ashcroft, 366 F.3d 799, 802 (9th Cir. 2004), and we grant the petition for review and remand.

The BIA’s determination - that “there is no evidence that anyone sought to harm the respondent, her husband (who the guerillas allegedly sought) or their family because of his status as a former member of the military” is not supported by substantial evidence. See id. at 804 (harm by guerrillas was punishment for alien’s pro-establishment political views). Sonia Areli Gonzalez-Garcia testified to several incidents in which the guerillas abducted family members in their search for her husband, and his asylum application asserts that the guerillas were likely motivated by his former position in the Treasury Police. See Gafoor v. INS, 231 F.3d 645, 650-51 (9th Cir. 2000) (“[A]n applicant need only produce evidence from which it is reasonable to believe that the harm was motivated, at least in part, by an actual or implied protected ground.”) (internal quotation marks omitted).

Moreover, the BIA did not consider all the evidence in the record. See Bromfield v. Mukasey, 543 F.3d 1071, 1077 (9th Cir. 2008). Sonia’s asylum application stated that it was based on the pending asylum application of her husband; she attached her husband’s asylum application to her own; and both petitioners were listed as derivatives oh the husband’s application. 1 The BIA therefore should have considered the facts contained in his application. See id.

We therefore remand for the agency to consider whether the total record establishes that the pursuit of Sonia’s husband and the abductions of family members were motivated by her husband’s status and whether the incidents were “closely tied” to these petitioners. See Arriaga-Barrientos v. INS, 937 F.2d 411, 414 (9th Cir. 1991).

The BIA failed to address petitioners’ claim that they are eligible -for humanitarian asylum relief under 8 C.F.R. § 1208.13(b)(l)(iii)(B), and we remand for the BIA to consider that argument in the first instance. See Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005) (“the BIA [is] not free to ignore arguments raised by a petitioner”); see also INS v. Ventura, 537 U.S. 12, 16-18, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).

PETITION FOR REVIEW GRANTED; REMANDED.

**

This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.

1

. The husband was granted relief in 2008.

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