NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 18 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ELVIA ESTELA VELASQUEZ- No. 19-72741

MARTINEZ,

Agency No. A206-475-836 Petitioner,

v. MEMORANDUM*

MERRICK GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted February 2, 2021 San Francisco, California

Before: THOMAS, Chief Judge, and IKUTA and NGUYEN, Circuit Judges. Dissent by Judge IKUTA

Elvia Estela Velasquez-Martinez, a native and citizen of Honduras, applied

for asylum, withholding of removal, and protection under the Convention Against

Torture (CAT). The Immigration Judge (IJ) denied relief, and the Board of

Immigration Appeals (BIA) dismissed the appeal. Velasquez-Martinez now

petitions for review. We have jurisdiction under 8 U.S.C. § 1252(a), and we grant

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. the petition and remand for further consideration.

1. Before the BIA, Velasquez-Martinez asserted that she should be

excused from the one-year asylum filing deadline at 8 U.S.C. § 1158(a)(2)(B) as a

class member in Mendez Rojas v. Wolf, No. 2:16-cv-01024 (W.D. Wash. filed June

30, 2016). Though the district court’s summary judgment order was stayed when

the BIA issued a decision in Velasquez-Martinez’s appeal, the defendants,

including the Executive Office for Immigration Review, had agreed, pursuant to an

interim stay agreement, “to find all class members’ asylum applications were

timely filed in pending adjudications before . . . the Board of Immigration Appeals

. . . during the stay.” See Interim Stay Agreement, Mendez Rojas v. Wolf, No.

2:16-cv-01024, at *1 (W.D. Wash. Aug. 2, 2018), ECF 69-1.1 Because the BIA

failed to address Velasquez-Martinez’s assertion of class membership, we remand

for consideration of Velasquez-Martinez’s claim. See Sagaydak v. Gonzales, 405

1 We disagree with the dissent’s view that Velasquez-Martinez failed to exhaust her Mendez Rojas argument before the BIA. Exhaustion requires a legal claim to be sufficiently raised so as “to put the BIA on notice of what was being challenged.” Bare v. Barr, 975 F.3d 952, 960 (9th Cir. 2020). Velasquez- Martinez put the BIA on notice that she believed she warranted an exception to the one-year filing deadline under Mendez Rojas. Because the BIA was on notice, it could not ignore her argument and was required to address it consistently with the binding stay agreement. See Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005) (“[T]he BIA [is] not free to ignore arguments raised by a petitioner.”).

2 F.3d 1035, 1040 (9th Cir. 2005).2

2. Velasquez-Martinez argues that the BIA erred in holding that her

proffered particular social group, “female victims of gender-based violence,” is

impermissibly circular.3 We review legal questions de novo. Arrey v. Barr, 916

F.3d 1149, 1157 (9th Cir. 2019). “[T]he conclusion that a proposed social group is

impermissibly circular may not be reached summarily merely because the

proposed group mentions harm.” Diaz-Reynoso v. Barr, 968 F.3d 1070, 1086 (9th

Cir. 2020). Instead, the BIA must conduct a “rigorous analysis,” id. at 1079

(quoting Matter of A-B-, 27 I. & N. Dec. 316, 340 (A.G. 2018)), and consider on a

case-by-case basis “whether [the] group is cognizable if it is defined without

reference to the fact of persecution,” id. at 1080.

The BIA’s analysis here suffers from the same flaw as the BIA decision in

Diaz-Reynoso. In one sentence and citing Matter of A-B-, the BIA summarily

found Velasquez-Martinez’s proffered social group not cognizable because it “does

not ‘exist independently’ of the harm asserted.” Therefore, we remand so the BIA

2 We cannot rely, as the dissent would, “on a ground upon which [the BIA] did not rely.” Arrey v. Barr, 916 F.3d 1149, 1157 (9th Cir. 2019) (quoting Navas v. INS, 217 F.3d 646, 658 n.16 (9th Cir. 2000). 3 The BIA described this particular social group as “female victims of violence,” but we use Velasquez-Martinez’s formulation. Under either formulation, the BIA erred when it failed to consider whether the group was cognizable without reference to the harm suffered. See Diaz-Reynoso, 968 F.3d at 1080.

3 can determine in the first instance whether Velasquez-Martinez’s proposed social

group is cognizable without reference to the persecution. See id. at 1080, 1088.

3. Velasquez-Martinez next argues that the BIA erred when it

alternatively concluded that she was not harmed on account of her membership in

two particular social groups: “female victims of gender-based violence” and

“females in Honduras.”4 We review factual findings, such as those underlying the

denial of asylum, withholding, and relief under CAT, for substantial evidence.

Arrey, 916 F.3d at 1157.

As a threshold matter, and contrary to the dissent’s assertion, Velasquez-

Martinez exhausted her nexus argument, including the argument that the harm she

suffered while captive was on account of a protected ground. Though Velasquez-

Martinez did not present an extensive nexus argument before the BIA, she did state

that the IJ erred in finding that the persecution she suffered in Honduras,

“including being raped,” was not on account of a protected ground. This put the

BIA on notice of the argument that Velasquez-Martinez was harmed while captive

on account of her membership in a protected group. See Martinez v. Barr, 941

F.3d 907, 922 (“[W]e do not employ the exhaustion doctrine in a formalistic

manner, but rather inquire into whether the issue was before the BIA such that it

4 The BIA characterized this particular social group as “females,” but we use the IJ’s formulation.

4 had the opportunity to correct its error.”) (quoting Figueroa v. Mukasey, 543 F.3d

487, 492 (9th Cir. 2008)).

On the merits, the BIA erred by failing to consider if the sexual violence

Velasquez-Martinez suffered while captive was on account of a protected ground.

See, e.g., Barajas-Romero v. Lynch, 846 F.3d 351, 360 (9th Cir. 2017) (remanding

nexus determination in a withholding case where the petitioner was initially

kidnapped and tortured for extortion, but “[t]he torture became much worse after

[he] voiced his anti-corruption opinion”); cf. Parussimova v. Mukasey, 555 F.3d

734, 742 (9th Cir. 2009) (“In this case, however, it is simply not clear whether [a

protected ground] caused the assailants to initiate their attack or increase its

severity once it had begun.”) (emphasis added).

Several pieces of evidence from the time while Velasquez-Martinez was

captive indicate that she was likely persecuted on account of her gender, a key

component of both particular social groups. First, the captors singled out

Velasquez-Martinez and the other female captive for specific forms of harm,

including sexual violence, abuses that none of the captive men suffered. See, e.g.,

Mengstu v. Holder, 560 F.3d 1055, 1059 (9th Cir. 2009), superseded in part by

statute, REAL ID Act of 2005, Pub. L. No. 109–13 div. B, 119 Stat. 302, as

5 recognized in Parussimova, 555 F.3d at 740.5 Second, other than gender, there is

no identifiable difference between the captive women and men to account for the

fact that the captors committed sexual violence against both women and none of

the men. See Li v. Holder, 559 F.3d 1096, 1112 (9th Cir. 2009) (pre-REAL ID

application); Navas v. INS, 217 F.3d 646, 660–61 (9th Cir. 2000) (pre-REAL ID

application). Third, one of the captors used a gender-based slur while raping

Velasquez-Martinez. See, e.g., Sinha v. Holder, 564 F.3d 1015, 1021–22 (9th Cir.

2009) (pre-REAL ID application). And finally, the record documents pervasive

violence against women in Honduras, which also supports a nexus finding. See,

e.g., Ndom v. Ashcroft, 384 F.3d 743, 754–56 (9th Cir. 2004) (pre-REAL ID

application). Because the BIA failed to consider this “highly probative [and]

potentially dispositive” evidence, we remand for consideration of whether

Velasquez-Martinez was persecuted while captive on account of her membership

in one of the asserted particular social groups. See Cole v. Holder, 659 F.3d 762,

772 (9th Cir. 2011).

4. Finally, Velasquez-Martinez contests the BIA’s finding that she did

not establish that the government was more likely than not to acquiesce in her

5 Though the REAL ID Act, which governs this case, imposed a “more onerous” nexus standard, see Parussimova, 555 F.3d at 740, pre-REAL ID caselaw remains instructive to the extent it shows what evidence is relevant to a persecutor’s motive.

6 torture as necessary to qualify for CAT protection. While the Honduran

government’s inability to prevent violence against women is not sufficient to

constitute acquiescence, see Garcia-Milian v. Holder, 755 F.3d 1026, 1034 (9th

Cir. 2014), the BIA nevertheless erred when it failed to give reasoned

consideration to other record evidence, including an expert declaration that

indicates the Honduran government is not just ineffective at preventing this

violence but is also complicit in and turns a blind eye to it. For example, the report

notes that “police themselves have committed violent and degrading acts against

women” and that “Honduran police ignore threats made against women.” We

therefore remand for the BIA to consider Velasquez-Martinez’s CAT claim in light

of this evidence. See Cole, 659 F.3d at 772–73 (holding that the BIA “did not

evidence reasoned consideration” of the evidence where it failed to address expert

testimony).

PETITION GRANTED.

7

FILED

Velasquez-Martinez v. Garland, No. 19-72741 MAR 18 2021 IKUTA, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

Velasquez-Martinez missed the statutory deadline for applying for asylum.

And the BIA’s determination that Velasquez-Martinez failed to establish that she

was persecuted on account of her membership in a particular social group (“female

victims of violence”) is legally correct and supported by substantial evidence. The

majority bases its conclusion to the contrary on arguments that are unexhausted or

meritless. Therefore I dissent.

1

Velasquez-Martinez was three years late in filing her asylum application. As

required by statute, 8 U.S.C. § 1158(a)(1), the IJ denied her asylum application.

At the time of the IJ’s decision on Velasquez-Martinez’s asylum application,

a class action was pending in a Washington district court. Mendez Rojas v.

Johnson, No. 2: 16-cv-0 1024-RSM (W.D. Wash.). The plaintiffs—classes of

asylum seekers who had been or would be detained by the government but were

not given notice of the one-year deadline for filing their asylum

application—claimed that the government was legally required to give them notice

of the one year deadline. According to these aliens, the government’s failure to do

so violated their constitutional rights.

Some time after the IJ denied Velasquez-Martinez’s asylum claim on timeliness grounds, the district court in Mendez Rojas held that the government had

to provide the plaintiffs notice of the one-year deadline. Order Granting Motion

for Summary Judgment, Mendez Rojas, ECF No. 64 (March 29, 2018). The

district court also ordered the government “to accept as timely filed any asylum

application from a class member” even if it was filed after the one-year deadline,

id. at 17, even though such an order is contrary to the statutory requirement that an

alien may apply for asylum only if the alien “demonstrates by clear and convincing

evidence that the [asylum] application has been filed within 1 year after the date of

the alien’s arrival in the United States,” 8 U.S.C. § 1158(a)(2)(B). While an appeal

of this ruling was pending before a panel of this court, however, the parties agreed

to stay the proceedings for settlement discussions and agreed that class members’

late-filed asylum applications would be deemed timely during the stay. The

district court granted the parties’ joint stay motion. Order Granting Joint

Stipulated Motion to Stay Proceedings, Mendez Rojas, ECF No. 70 (Aug. 2, 2018).

After this stay took effect, Velasquez-Martinez filed an appeal brief to the

BIA, referencing the now-stayed litigation. Velasquez-Martinez’s entire argument

on the effect of this litigation on her appeal is contained in a single sentence:

“Respondent contends that pursuant to Mendez-Rojas v. Johnson, No. 2: 16-cv-0

1024-RSM (W.D. Wash), the one-year filing deadline does not apply to her and

2 that she qualifies for asylum.” Velasquez-Martinez did not distinctly argue that

she qualified as a member of any of the classes of aliens referenced in the stayed

Mendez-Rojas summary judgment order. Nor does the record contain sufficient

evidence to establish that Velasquez-Martinez was such a member, and the BIA is

precluded from factfinding. 8 C.F.R. § 1003.1(d)(3)(iv) (Sept. 26, 2019).

Therefore, the BIA did not err in concluding that Velasquez-Martinez was not

entitled to asylum relief.

Moreover, Velasquez-Martinez failed to raise the new argument developed

by the majority that the BIA should have taken judicial notice of the government’s

agreement to treat class members’ late asylum applications as timely during an

interim stay period. Contrary to the majority, Majority at 2, n.1, Velasquez-

Martinez failed to give the BIA any notice of the existence of the Interim Stay

Agreement signed by the government pending further litigation in Mendez Rojas.

Such an argument, therefore, is unexhausted.1 In holding otherwise, the majority

leaps over all legal and factual insufficiencies to afford Velasquez-Martinez a

chance at relief not allowed by statute.

2

1 Velasquez-Martinez did not ask the BIA to remand or move to reopen before the IJ to resolve her class membership claim. 3 I also disagree with the majority’s conclusory determination that the BIA

erred in rejecting her claim that she was a member of a “particular social group,”

for purposes of 8 U.S.C. § 1101(a)(42), which she defined to the BIA as “female

victims of violence.”2

An applicant for relief from removal must establish that the claimed

particular social group is “(1) composed of members who share a common

immutable characteristic, (2) defined with particularity, and (3) socially distinct

within the society in question.” Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir.

2016) (quoting Matter of M–E–V–G–, 26 I. & N. Dec. 227, 237 (BIA 2014)).

“[T]he focus of the particularity requirement is whether the group is discrete,” id.

(citation omitted), meaning that it has “clear boundaries and that its characteristics

have commonly accepted definitions,” id. at 1135. The BIA must take an

individualized approach to determining whether an alien is a member of a

particular social group. Id.

While we recently recognized that the mere “mention of feared persecution”

does not categorically disqualify an “otherwise cognizable social group,”

2 Contrary to the majority’s claim, the BIA described the particular social group as “female victims of violence” because that was how Velasquez-Martinez formulated it to the BIA. The majority’s reference to testimony before the IJ is irrelevant. 4 Diaz-Reynoso v. Barr, 968 F.3d 1070, 1084–85 (9th Cir. 2020), the BIA did not

make this error here. Rather, the BIA held that Velasquez-Martinez’s claimed

particular social group of “female victims of violence,” was not cognizable because

it does not “exist independently of the harm asserted.” Without reference to

“violence,” the proposed group consists of females, which is too amorphous and

general to meet the particularity requirement. This is consistent with Diaz-

Reynoso, which held that “a particular social group must exist independently of the

harm asserted,” id. at 1080. In rejecting the BIA’s conclusion, it is the majority

that failed to conduct a rigorous analysis.

3

The majority also errs in concluding that “the Agency erred by failing to

consider if the sexual violence Velasquez-Martinez suffered while captive was on

account of” her membership in a particular social group. The majority bases this

ruling on its own inventive argument that because the male kidnappers raped the

women and beat the men, the women were persecuted on account of their

membership in a particular social group. Although this argument is baseless, we

lack jurisdiction to address it in any event, because Velasquez-Martinez’s brief to

the BIA does not raise the novel argument that after kidnapping Velasquez-

Martinez and her male friends, the kidnappers were motivated to persecute her on

5 account of her membership in a particular social group of female victims of

violence. Therefore it is not exhausted. See Barron v. Ashcroft, 358 F.3d 674, 678

(9th Cir. 2004) (no subject-matter jurisdiction over legal claims not presented in

administrative proceedings below).

4

Finally, the BIA did not err in rejecting Velasquez-Martinez’s CAT claim.

Based on the evidence in the record, substantial evidence supports the BIA’s

determination that the IJ did not err in “concluding that [Velasquez-Martinez] had

not met her burden of proof for protection under the Convention Against Torture.”

The majority chooses to focus on an expert report not discussed by Velasquez-

Martinez, but that report focuses primarily on arguments that the government has

failed to do enough to protect women, and does not compel the finding that the

kidnappers’ violence against petitioner was carried out “with the consent or

acquiescence of a public official acting in an official capacity.” 8 C.F.R. § 208.18;

Garcia-Milian v. Holder, 755 F.3d 1026, 1033–35 (9th Cir. 2014). Further,

because Velasquez-Martinez’s sole argument to the BIA on this point was that she

had “provided substantial evidence of the Honduran government’s inability to

protect female victims of persecution,” the BIA did not err in addressing this

argument; this does not suggest, as the majority claims, that the BIA failed to give

6 reasoned consideration to other record evidence. See Larita-Martinez v. INS, 220

F.3d 1092, 1095–96 (9th Cir. 2000) (holding that we presume that the BIA

considered all relevant evidence).

Instead of creating arguments for petitioners, we should base our

conclusions on the arguments that were before the BIA. I therefore respectfully

dissent.

7