FILED

NOT FOR PUBLICATION

JUN 10 2022

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ELSY EMPERATRIZ DEL CID- No. 19-70663

MARQUEZ; DAMARIS EVANGELINA

HERNANDEZ-DEL CID; JOSUE Agency Nos. A209-233-408 FRANCISCO HERNANDEZ-DEL CID; A209-233-409 WILSON GABRIEL HERNANDEZ-DEL A209-233-410 CID, A209-233-411

Petitioners,

MEMORANDUM*

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted April 21, 2022** San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Before: SCHROEDER and BADE, Circuit Judges, and JACK,*** District Judge.

Petitioner Elsy Del Cid-Marquez and her three children, Josue, Damarias1

and Wilson (collectively, “Petitioners”), citizens of El Salvador, petition for review

of the Board of Immigration Appeals’ (BIA) denial of their applications for

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

Torture (CAT). Elsy’s children are derivative beneficiaries of her asylum

application, and each child filed an individual application relying on Elsy’s

application.

After Josue refused to assist one of the local gangs, the gang identified

Damarias as his sister, attacked her, and threatened to kill and dismember her.

The principal contention of Petitioners with respect to asylum and withholding,

before the BIA and before this court, has been that they have been targeted for

persecution on account of their “membership in a particular social group” within

the meaning of 8 U.S.C. § 1158(b)(1)(B)(i). Their designated group is their

family. The BIA, while assuming without deciding that the family was a valid

social group, denied relief because it said Petitioners had not established they faced

*** The Honorable Janis Graham Jack, United States District Judge for the Southern District of Texas, sitting by designation. 1 Although the agency referred to Damarias as “Damaris,” we refer to her as “Damarias,” consistent with Petitioners’ briefing. 2 a greater likelihood of harm from gangs than anyone else in El Salvador. That

conclusion is irrelevant to the required nexus analysis. Parussimova v. Mukasey,

555 F.3d 734, 741 (9th Cir. 2009) (“[T]o demonstrate that a protected ground was

“at least one central reason” for persecution, an applicant must prove that such

ground was a cause of the persecutors’ acts.” (emphasis added)). The BIA did not

address Petitioners’ contention that the attack on Damarias and threats on her life

were premised on her family relationship to Josue. The BIA treated the incident as

if it were only one of gang violence. The BIA, thus, did not consider that

persecutors often have mixed motives, and “[o]ur mixed-motive cases make clear

that the petitioner need not show that a protected ground was the only reason for

persecution.” Garcia v. Wilkinson, 988 F.3d 1136, 1143 (9th Cir. 2021).

Petitioners now ask us, as they asked the BIA, to hold that they have

established eligibility for asylum and entitlement to withholding of removal on the

basis of membership in their family, a statutorily protected social group. We,

however, cannot decide an issue that the BIA did not decide. See INS v. Ventura,

537 U.S. 12, 16-17 (2002) (per curiam). The BIA failed to decide whether the past

persecution was because of membership in a statutorily protected social group. We

therefore must remand the asylum and withholding claims for the agency to decide

the issue in the first instance.

3 To prevail on their CAT claim, Petitioners were required to show a

likelihood of torture inflicted or instigated by a government official or with

governmental acquiescence. 8 C.F.R. § 208.18(a)(1). There is substantial

evidence in the record that the government does not participate in or acquiesce to

gang violence, although its actions against gangs may prove less than effective. See

Andrade-Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 2016) (holding that

acquiescence requires something more than “general ineffectiveness on the

government’s part”). The BIA’s denial of CAT relief must be upheld.

Petition Granted in Part, Denied in Part, and Remanded. Each party

shall bear its own costs.

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