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Cordoba v. Holder

United States Court of Appeals, Ninth Circuit

August 13, 2013

Edgar Rene Cordoba, Petitioner,
v.
Eric H. Holder, Jr., Attorney General, Respondent Antonio Medina Gonzalez, Petitioner,
v.
Eric H. Holder, Jr., Attorney General, Respondent

Argued and Submitted April 11, 2013-Pasadena, California

On Petitions for Review of Orders of the Board of Immigration Appeals Agency No. A096-085-156, Agency No. A022-997-885

Susan E. Hill (argued), Hill, Piibe & Villegas, Los Angeles, California, for Petitioner.

Tony West, Assistant Attorney General, Civil Division, Stephen J. Flynn, Assistant Director, and Imran R. Zaidi (argued), Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.

Saad Ahmad (argued), Saad Ahmad & Associates, Fremont, California, for Petitioner.

Tony West, Assistant Attorney General, Civil Division, Melissa Neiman-Kelting, Assistant Director, Imran R. Zaidi (argued) and Ilissa Gould, Trial Attorneys, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.

Before: Stephen Reinhardt and Mary H. Murguia, Circuit Judges, and Jack Zouhary, District Judge.[*]

SUMMARY[**]

Immigration

The panel granted the petitions for review of Edgar Rene Cordoba and Antonio Medina-Gonzalez from the Board of Immigration Appeals' decisions denying asylum and withholding of removal on the grounds that their status as landowners did not qualify as a particular social group within the meaning of 8 U.S.C. § 1101(a)(42)(A).

The panel remanded for the BIA to reconsider in light of this court's recent en banc decision in Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013), on the question of whether landownership may form the basis for membership in a particular social group for purposes of eligibility for asylum and withholding. The panel found that there were clear inconsistencies between Henriquez-Rivas and the BIA's decisions, which were decided before the en banc opinion was published.

The panel also remanded for reconsideration of Medina-Gonzalez's CAT claim in light of Tapia-Madrigal v. Holder, 716 F.3d 499 (9th Cir. 2013), which found that a public official must be aware of the torturous activity but need not have actual knowledge of the specific incident of torture.

Judge Zouhary concurred in the judgment of the asylum claims, but wrote separately to clarify that remand is appropriate because the BIA decisions in these cases came down before the en banc opinion in Henriquez-Rivas. Judge Zouhary would remand to the BIA for the limited purpose of determining whether there was evidence that members of the proposed group would be perceived as a group by society. Judge Zouhary dissented from the section addressing Medina-Gonzalez's CAT claim. He would find that the BIA's denial of the claim was supported by substantial evidence and would affirm.

OPINION

REINHARDT, Circuit Judge:

These cases, consolidated for purposes of disposition, both present the question of whether landownership may form the basis for membership in a particular social group for purposes of eligibility for asylum. Because the agency did not have the benefit of our recent en banc decision in Henriquez-Rivas v. Holder when it adjudicated petitioners' claims, we grant the petitions for review and remand for the BIA to reconsider its determinations.

I.

The Attorney General may, in his discretion, grant asylum to applicants determined to be refugees within the meaning of the Immigration and Nationality Act ("INA"), INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). An individual qualifies as a refugee when he is "unable or unwilling to return to [his last country of residence] . . . because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A); see Navas v. INS, 217 F.3d 646, 654 (9th Cir. 2000). These cases involve two individuals whose asylum applications were denied because the BIA held that the particular social groups in which they claimed to be members did not qualify as "particular social group[s]" within the meaning of the statute.

A.

Edgar Rene Cordoba, a native and citizen of Colombia, petitions for review of the decision of the Board of Immigration Appeals (BIA) denying his claims for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). Cordoba's primary claim is that he and his family were persecuted by the Revolutionary Armed Forces of ...


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