Oliverto Pirir-Boc v. Eric Holder, Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

OLIVERTO PIRIR-BOC, No. 09-73671

Petitioner,

Agency No.

v. A200-033-237

ERIC H. HOLDER, JR., Attorney

General, OPINION

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

February 10, 2014—San Francisco, California

Filed May 7, 2014

Before: Stephen Reinhardt and Sidney R. Thomas, Circuit

Judges, and William K. Sessions, District Judge.*

Opinion by Judge Reinhardt

*

The Honorable William K. Sessions III, District Judge for the U.S.

District Court for the District of Vermont, sitting by designation.

2 PIRIR-BOC V. HOLDER

SUMMARY**

Immigration

The panel granted a petition for review of the Board of

Immigration Appeals’ denial of asylum, withholding of

removal, and protection under the Convention Against

Torture, and remanded for further consideration in light of

Henriquez-Rivas v. Holder, 707 F.3d 1081, 1083 (2013) (en

banc), Matter of W-G-R-, 26 I. & N. Dec. 208 (2014), and

Matter of M-E-V-G-, 26 I. & N. Dec. 227 (2014).

Petitioner asserted a fear of persecution by gangs in

Guatemala on account of his membership in a particular

social group characterized as individuals “taking concrete

steps to oppose gang membership and gang authority.” The

panel first held that the Board’s recent decisions in Matter of

W-G-R and Matter of M-E-V-G did not affect the construction

of social group set forth by the en banc court in Henriquez-

Rivas, with the qualification that the persecutors’ perception

is not itself enough to make a group socially distinct, and

persecutory conduct alone cannot define the group, rather, the

persecutor’s perspective is one factor among others to be

considered in determining a group’s social visibility.

The panel noted that the critical issue in each of the new

Board decisions is whether there is evidence to support social

recognition of the proposed group, and the panel explained

that to be consistent with its own precedent, the Board may

not reject a group solely because it previously found a similar

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

PIRIR-BOC V. HOLDER 3

group in a different society to lack social distinction or

particularity. Because the Board in this case did not perform

the required evidence-based inquiry as to whether

Guatemalan society recognizes petitioner’s proposed social

group, the panel remanded to the Board for reconsideration in

light of Henriquez-Rivas, Matter of W-G-R and Matter of M-

E-V-G.

The panel explicitly did not decide whether the Board’s

requirements of “social distinction” and “particularity”

constitute a reasonable interpretation of the term “particular

social group.”

The panel remanded petitioner’s CAT claim for the Board

to provide a reasoned explanation of the basis for its decision.

COUNSEL

Roger S. Green (argued) and Jenny Tsai, Green & Tsai, San

Francisco, California, for Petitioner.

Dawn S. Conrad (argued), Sarah L. Vuong, and Kimberly A.

Burdge, Trial Attorneys; Song Park, Senior Litigation

Counsel; Tony West and Stuart F. Delery, Assistant

Attorneys General; Emily Anne Radford, Assistant Director,

United States Department of Justice, Office of Immigration

Litigation, Civil Division, Washington, D.C., for Respondent.

4 PIRIR-BOC V. HOLDER

OPINION

REINHARDT, Circuit Judge:

Oliverto Pirir-Boc (“Pirir-Boc”) was granted asylum by

the Immigration Judge (“IJ”) based on his well-founded fear

of persecution as a member of a particular social group

characterized as individuals “taking concrete steps to oppose

gang membership and gang authority.” The Board of

Immigration Appeals (“BIA”) vacated the grant of asylum on

the ground that Pirir-Boc’s “purported social group lacks the

requisite particularity and social visibility.” Pirir-Boc filed a

petition for review. After briefing was complete, this court

issued the en banc decision, Henriquez-Rivas v. Holder,

707 F.3d 1081, 1083 (2013) (en banc), holding that

“witnesses who testify against gang members” may be

cognizable as a particular social group for the purposes of

asylum. We then ordered supplemental briefing in this case.

Three days before oral argument, the BIA issued two

published decisions designed to clarify its interpretation of

the phrase “particular social group”: Matter of W-G-R-, 26 I.

& N. Dec. 208 (2014), and Matter of M-E-V-G-, 26 I. & N.

Dec. 227 (2014). We hold that these two decisions do not

affect the validity of Henriquez-Rivas, and we remand Pirir-

Boc’s petition to the BIA for consideration in light of W-G-R-

, M-E-V-G-, and Henriquez-Rivas.

I

The IJ granted Pirir-Boc asylum after finding his

testimony credible. Pirir-Boc is a native and citizen of

Guatemala who identifies as Cakchiquel, an indigenous

minority ethnic group, and did not learn Spanish until age 10.

He was recruited by the Mara Salvatrucha, a violent Central

PIRIR-BOC V. HOLDER 5

American gang, but refused to join. His younger brother,

however, joined the gang and pledged himself to it for life.

Pirir-Boc viewed the Mara Salvatrucha as “criminals who

rape women and rob people” and disapproved of his brother’s

decision to join. Within the hearing of members of the Mara

Salvatrucha, Pirir-Boc told his brother that he must leave the

gang. Pirir-Boc was eventually able to help his brother defect

and move to their grandparents’ village, three hours away.

After his brother left the gang, members of the Mara

Salvatrucha came looking for Pirir-Boc at his home several

times. He sent his wife and small child away and went into

hiding in the cliffs. Gang members continued to look for him

at all hours, but he evaded them by not returning home.

When Mara Salvatrucha members had not come to his house

for eight days, Pirir-Boc returned. Ten or eleven gang

members caught him and beat him severely, telling him that

“[he has] to die.” He continues to suffer effects from that

beating.

Out of the “fear of losing [his] life” and never being able

to “sleep in [his] own house” again, Pirir-Boc fled Guatemala

with his younger brother. His wife subsequently informed

him that the Mara Salvatrucha was still looking for him in

Guatemala.

The IJ found Pirir-Boc eligible for asylum based on his

past persecution and his well-founded fear of future

persecution “on account of his membership in a particular

social group of persons taking concrete steps to oppose gang

6 PIRIR-BOC V. HOLDER

membership and gang authority.”1 She found that Pirir-Boc

“took specific action to dissuade his brother from continuing

in his membership in a criminal gang” and,

by taking this action, allied himself with a

particular social group of persons directly in

opposition to gang activities and gang

membership. Although [Pirir-Boc] does not

belong to an organization, per se, the Country

Reports and background material . . . indicate

that there are concerted efforts in Guatemala

to combat gang activity. The Court notes that

voluntarily associating oneself with a group

may be evidence of membership in a

particular social group.

The IJ also found that Pirir-Boc “has been visible and

outspoken in his actions against the gang.” In addition, she

found that the authorities in Guatemala were unwilling or

unable to protect him. The IJ did not consider whether Pirir-

Boc was eligible for relief under the Convention Against

Torture (“CAT”), noting that he had not applied for such

relief.

The government appealed the IJ’s decision, and the BIA

sustained the appeal and vacated the IJ’s finding of eligibility.

The BIA incorporated the IJ’s fact-finding in its decision,

noting that “[t]he facts of this case are not in dispute.” It then

1

The IJ denied Pirir-Boc’s application for asylum on the basis of his

indigenous ethnicity and political opinion. Pirir-Boc does not challenge

that portion of the BIA’s ruling and we do not address it here.

PIRIR-BOC V. HOLDER 7

applied intervening authority from the BIA and this court2 to

those facts and held that the purported social group of “those

who have taken direct action to oppose criminal gangs” was

not meaningfully distinguishable from Salvadoran “youths

who have resisted gang recruitment, or family members of

such Salvadoran youth,” the group the BIA had rejected in

Matter of S-E-G-, 24 I. & N. Dec. 579, 582 (2008). The BIA

decided that “[a]lthough the respondent was seen by gang

members to tell his brother to leave the gang, his purported

social group lacks the requisite particularity and social

visibility” and reversed the IJ’s finding of eligibility. The

BIA denied Pirir-Boc’s claim for withholding of deportation

because he had failed to satisfy the less burdensome standard

for asylum. The BIA also rejected Pirir-Boc’s claim for relief

under the Convention Against Torture, finding that he had

“failed to establish a prima facie case for eligibility” for that

type of relief.

II

We review questions of law de novo. Cordoba v. Holder,

726 F.3d 1106, 1113 (9th Cir. 2013). Whether a group

constitutes a “particular social group” is a question of law.

Mendoza-Alvarez v. Holder, 714 F.3d 1161, 1163 (9th Cir.

2013). The BIA’s construction of ambiguous statutory terms

in precedential decisions is entitled to deference under

Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc.,

2

The BIA applied S-E-G-, 24 I. & N. Dec. 579, which was decided after

the IJ’s decision but before W-G-R-, 26 I. & N. Dec. 208, and M-E-V-G-,

26 I. & N. Dec. 227. It also noted Ramos-Lopez v. Holder, 563 F.3d 855

(9th Cir. 2009), and Santos-Lemus v. Mukasey, 542 F.3d 738 (9th Cir.

2008), which were issued following the IJ’s decision in Pirir-Boc’s case

but before our en banc decision in Henriquez-Rivas, which partially

overruled them. Henriquez-Rivas, 707 F.3d at 1093.

8 PIRIR-BOC V. HOLDER

467 U.S. 837, 844 (1984). Henriquez-Rivas, 707 F.3d at

1087; Lezama-Garcia v. Holder, 666 F.3d 518, 524 (9th Cir.

2011). We must accept the BIA’s construction if it is

reasonable. Henriquez-Rivas, 707 F.3d at 1087 (citing Nat’l

Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545

U.S. 967, 980 (2005)).

III

A

A petitioner is eligible for asylum if he is determined to

be a refugee within the meaning of section 101(a)(42)(A) of

the Immigration and Nationality Act (“INA”), 8 U.S.C.

§ 1101(a)(42)(A). 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); Cordoba,

726 F.3d at 1108.

Pirir-Boc’s petition involves the construction of the term

“particular social group.” Since the BIA considered Pirir-

Boc’s petition, the term has been interpreted in an en banc

decision of this court, Henriquez-Rivas v. Holder, 707 F.3d

1081 (2013), and in two published decisions by the BIA, W-

G-R-, 26 I. & N. Dec. 208 (2014), and M-E-V-G-, 26 I. & N.

Dec. 227 (2014). We first consider whether the BIA’s new

decisions affect the interpretation we set forth in Henriquez-

Rivas, and conclude that Henriquez-Rivas remains valid in

both holding and reasoning, with one minor qualification.

PIRIR-BOC V. HOLDER 9

Prior to Henriquez-Rivas, the BIA defined “particular

social group” as a group (1) that consisted of people who

share an “immutable characteristic ‘so fundamental to one’s

identity that a person should not be required to abandon it,’”3

Henriquez-Rivas, 707 F.3d at 1084 (quoting Hernandez-

Montiel v. INS, 225 F.3d 1084, 1093 (9th Cir. 2000)); and

(2) that had what the BIA called “social visibility” and

“particularity.” Henriquez-Rivas, 707 F.3d at 1084–85. In S-

E-G-, the BIA had found that a proposed social group of

“Salvadoran youth who have been subjected to recruitment

efforts by MS-13 and who have rejected or resisted

membership in the gang based on their own personal, moral,

and religious opposition to the gang’s values and activities”

did not have “particularity” because it was too “amorphous,”

and that it did not have “social visibility” because there was

little evidence that such youths would be “perceived as a

group by society.” Henriquez-Rivas, 707 F.3d at 1085; S-E-

G-, 24 I. & N. Dec. at 584–85, 587.

In Henriquez-Rivas we considered whether witnesses who

testify against gang members constitute a particular social

group under the BIA’s precedent. 707 F.3d at 1081. As in

Pirir-Boc’s case, the IJ found Henriquez-Rivas eligible for

asylum but the BIA reversed that determination, holding that

3

“Immutability” is not at issue here, and, in any event, Pirir-Boc’s

proposed group clearly satisfies the BIA’s standard. The steps Pirir-Boc

took in opposition to the gang are a “shared past experience” and

“something . . . that cannot be changed.” W-G-R-, 26 I. & N. Dec. at

212–13 (“In Acosta we determined that any characteristic that defines a

particular social group must be immutable . . . . The defining characteristic

can be an innate characteristic or a shared past experience. The critical

requirement is that the defining characteristic of the group must be

something that either cannot be changed or that the group members should

not be required to change in order to avoid persecution.”).

10 PIRIR-BOC V. HOLDER

the proposed social group “lacks the requisite social

visibility.” Id. at 1091. The BIA did not fully explain its

position, but instead cited S-E-G- and other cases now subject

to the revised standard of W-G-R- and M-E-V-G-. Id. We

vacated the BIA’s decision, holding that the BIA had

“erroneously assumed” that the putative social group was not

cognizable under its precedent, and that because of this

erroneous assumption, the BIA had ignored “significant

evidence” that Salvadoran society recognizes the group in

question as a particular social group. Id. at 1092. We noted

that the evidence before the BIA strongly suggested that the

putative group had sufficient social visibility—which, we

clarified, refers to “‘perception’ rather than ‘on-sight

visibility,’”4 id. at 1089, 1092–93—and sufficient

particularity to be cognizable. We remanded to the BIA for

further proceedings so that it could consider that evidence.

Id. at 1094.

The BIA took up these issues in a pair of precedential

decisions. In W-G-R-, the BIA considered the putative social

4

The BIA agreed with this clarification in W-G-R- and M-E-V-G-, and

changed the name of the concept from “social visibility” to “social

distinction” in order to emphasize that a social group need not be

“ocularly visible” but instead must “exist as a recognized component of

the society in question.” W-G-R-, 26 I. & N. Dec. at 217; M-E-V-G-, 26

I. & N. Dec. at 240–41. “To have the ‘social distinction’ necessary to

establish a particular social group, there must be evidence showing that

society in general perceives, considers, or recognizes persons sharing the

particular characteristic to be a group.” W-G-R-, 26 I. & N. Dec. at 217.

“Social distinction” thus appears to be equivalent to our interpretation of

“social visibility” in Henriquez-Rivas, 707 F.3d at 1088–89 (requiring

“that the shared characteristic generally be recognizable by other members

of the community, or evidence that members of the proposed group would

be perceived as a group by society.”) (internal quotation marks and

citations omitted).

PIRIR-BOC V. HOLDER 11

group of “former members of the Mara 18 gang in El

Salvador who have renounced their gang membership” and

rejected it as a social group due to a lack of evidence to that

effect introduced at the proceedings. 26 I. & N. Dec. at 221.

The BIA rejected the group on the ground that the record

contained no evidence demonstrating that Salvadoran society

recognized former gang members who have renounced their

gang membership as a distinct social group. Id. at 222. The

record contained “documentary evidence describing gangs,

gang violence, and the treatment of gang members but very

little documentation discussing the treatment or status of

former gang members.” Id. The “scant evidence” provided

by W-G-R- was insufficient to meet the social distinction

requirement. Id. The BIA also found that the proposed group

lacked particularity because “the boundaries of a group are

not sufficiently definable unless the members of society

generally agree on who is included in the group, and evidence

that the social group proposed . . . is recognized within the

society is lacking in this case.” Id. at 221. “The group would

need further specificity to meet the particularity

requirement.” Id.

In M-E-V-G-, decided on the same day as W-G-R-, the

BIA declined to make a ruling on whether Honduran youths

who were actively recruited by gangs but who refused to join

constituted a particular social group because further fact-

finding was required. 26 I. & N. Dec. at 251. The BIA stated

that there is no “blanket rejection of all factual scenarios

involving gangs” and that “[s]ocial group determinations are

made on a case-by-case basis.” Id. Because the BIA’s

“guidance on particular social group claims ha[d] been

clarified” since the IJ had last considered the question, it

remanded the case to “enable the Immigration Judge to

12 PIRIR-BOC V. HOLDER

engage in any fact-finding that may be necessary to resolve

the issues in this case.” Id. at 251–52.5

The new BIA decisions W-G-R- and M-E-V-G- are

consistent6 with Henriquez-Rivas, in which the thrust of our

5

Although the BIA did not explain why it decided not to remand W-G-

R- for further fact-finding but did so in M-E-V-G-, it seems apparent that

there was no purpose in a remand in the former case because the BIA held

that there was no nexus and thus no reason to develop further facts as to

the social group issue. W-G-R-, 26 I. & N. Dec. at 223.

6

The new BIA decisions are consistent with Henriquez-Rivas, with one

qualification. In Henriquez-Rivas, we suggested that the perspective of

the persecutor may be the most important perspective in determining

whether a group has sufficient social visibility or distinction, but left it to

the BIA to decide that issue in the first instance. 707 F.3d at 1089. In the

new decisions, the BIA declined to adopt this suggestion. It decided that

“the persecutors’ perception is not itself enough to make a group socially

distinct, and persecutory conduct alone cannot define the group,” but

allowed that the persecutor’s perspective is one factor among others to be

considered in determining a group’s social visibility. M-E-V-G-, 26 I. &

N. Dec. at 242. The BIA noted, however, at least two ways in which the

“perception of the applicant’s persecutors may be relevant.” Id. First, the

persecution of a group may cause a group for the first time to recognize

itself and be recognized by society as a group. Id. For instance, taking the

example of a proposed social group of former employees of a country’s

attorney general, the BIA explained that such employees may not consider

themselves to be a separate group until they are mistreated by a

persecutor. “Upon their maltreatment, it is possible that these people

would experience a sense of ‘group,’ and society would discern that this

group of individuals, who share a common immutable characteristic, is

distinct in some significant way.” Id. at 243. Second, the persecutor’s

perceptions may be relevant in cases involving persecution on account of

“imputed” grounds, where “one is erroneously thought to hold particular

political opinions or mistakenly believed to be a member of a particular

social group.” Id.

Thus, while the BIA did not give the persecutor’s perspective the

PIRIR-BOC V. HOLDER 13

holding was that the BIA had ignored specific evidence of

whether Salvadoran society considered witnesses who

testified against gang members to be a social group. The

critical issue in each of the new decisions is whether there is

evidence to support social recognition of the proposed group.

In W-G-R- the BIA refused to find a social group because

“evidence that the social group . . . is recognized within the

society is lacking in this case,” 26 I. & N. Dec. at 221, and in

M-E-V-G- the BIA determined that the case-by-case analysis

required remand for further factual development, 26 I. & N.

Dec. at 251. The rule that thus emerges is the following: To

determine whether a group is a particular social group for the

purposes of an asylum claim, the agency must make a case-

by-case determination as to whether the group is recognized

by the particular society in question. To be consistent with its

own precedent, the BIA may not reject a group solely because

it had previously found a similar group in a different society

to lack social distinction or particularity, especially where, as

here, it is presented with evidence showing that the proposed

group may in fact be recognized by the relevant society.7

same role in the analysis as the one we had recommended, it did give that

perspective an important place. Regardless, to the extent that W-G-R- and

M-E-V-G- do disagree with Henriquez-Rivas on this point, there is no real

conflict because we explicitly “le[ft] it to the BIA to decide this issue in

the first instance.” Henriquez-Rivas, 707 F.3d at 1089.

7

It is an error, for instance, to assume that if a social group related to the

same international gang, such as the Mara Salvatrucha, has been found

non-cognizable in one society, it will not be cognizable in any society.

Honduras, El Salvador, Guatemala, Nicaragua, and Panama have used

different strategies for combating gang violence, from anti-gang

legislation to social rehabilitation and prevention programs. These

different local responses to gangs in nations with distinct histories,

populations, and government structures, may well result in a different

social recognition of social groups opposed to gang violence, even if the

14 PIRIR-BOC V. HOLDER

Here, the BIA did not perform the required evidence-

based inquiry as to whether the relevant society recognizes

Pirir-Boc’s proposed social group. It failed to consider how

Guatemalan society views the proposed group, and it did not

consider the society-specific evidence submitted by Pirir-Boc

in the form of U.S. State Department Country Reports on

Guatemala, a Congressional Research Service Report for

Congress on Gangs in Central America with a section on

Guatemala, and background documents including news

articles and Amnesty International Reports on Guatemala.

The IJ, in contrast, did consider that evidence and found that

in openly opposing the Mara Salvatrucha in Guatemala, Pirir-

Boc “allied himself with a particular social group of persons

directly in opposition to gang activities.” The IJ found that

there were “concerted efforts in Guatemala to combat gang

activity” and that through his opposition to the Mara

Salvatrucha in that country, Pirir-Boc was “voluntarily

associating” himself with that group. These are the type of

findings that are relevant to determining “whether the people

of a given society would perceive a proposed group as

sufficiently separate or distinct to meet the ‘social distinction’

test.” M-E-V-G-, 26 I. & N. Dec. at 241. “Evidence 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.”

Id.

Because it is not clear to us from the record whether the

evidence presented by Pirir-Boc is sufficient to meet the

revised standard in W-G-R- and M-E-V-G-, we remand the

petition to the BIA to consider Pirir-Boc’s asylum claim in

gang in question is the same.

PIRIR-BOC V. HOLDER 15

light of those decisions. See Cordoba, 726 F.3d at 1117.

Because Pirir-Boc’s claim for withholding of deportation was

denied solely on the basis of his failure to satisfy the burden

required for asylum, that claim is also remanded. We also

advise the BIA to consider Pirir-Boc’s petition in light of

Henriquez-Rivas, which addressed a group comparable to

Pirir-Boc’s proposed group and found it to be potentially

cognizable. In Henriquez-Rivas, the proposed group was

“witnesses who testify against gang members.” 707 F.3d at

1083. Here, the proposed group is “persons taking concrete

steps to oppose gang membership and gang authority.” The

concrete and open steps Pirir-Boc took in opposition to the

gang may fall within the framework of Henriquez-Rivas.

B

In remanding this case to the BIA, we do not decide

whether the BIA’s requirements of “social distinction” and

“particularity” constitute a reasonable interpretation of

“particular social group.” We owe deference to the agency’s

construction of an ambiguous term, but only if the

interpretation is reasonable. See Brand X Internet, 545 U.S.

at 981 (“If a statute is ambiguous, and if the implementing

agency’s construction is reasonable, Chevron requires a

federal court to accept the agency’s construction of the

statute, even if the agency’s reading differs from what the

court believes is the best statutory interpretation.”) (citation

omitted). If we were to conclude that the BIA’s interpretation

is not reasonable, we need not accept it; two circuits have in

fact heretofore invalidated the BIA’s previous formulation of

16 PIRIR-BOC V. HOLDER

the criteria of “particularity” and “social visibility.”8 In

Henriquez-Rivas, we held that the term “particular social

group” is ambiguous, but we declined to decide whether the

agency’s construction was reasonable. 707 F.3d at 1087,

1091.

Here, once again, we leave open the question of whether

the BIA’s construction of “particular social group” is

reasonable. First, we have not been asked to do so. Second,

and more important, as is clear from W-G-R- and M-E-V-G-,

the term is in flux, and it is premature to determine precisely

how the rule will be implemented. After the BIA has on

remand had the opportunity to apply the revised rule to this

case, we may be in a better position to determine whether its

revised construction of the term is reasonable.

IV

To qualify for CAT relief, Pirir-Boc must show that “it

is more likely than not that he . . . would be tortured if

removed” to Guatemala. Cole v. Holder, 659 F.3d 762, 770

(9th Cir. 2011) (quoting 8 C.F.R. § 208.16(c)(2)). He does

not need to show that he would be tortured on account of a

8

The Third and Seventh Circuits invalidated the pre-W-G-R-/M-E-V-G-

“particularity” and “social visibility” requirements on the ground that they

were inconsistent with prior BIA precedent and therefore were not entitled

to Chevron deference. See Valdiviezo-Galdamez v. Att’y Gen. of U.S.,

663 F.3d 582, 604 (3d Cir. 2011) (“Since the ‘social visibility’

requirement is inconsistent with past BIA decisions, we conclude that it

is an unreasonable addition to the requirements for establishing refugee

status where that status turns upon persecution on account of membership

in a particular social group.”); Gatimi v. Holder, 578 F.3d 611, 615 (7th

Cir. 2009) (holding that the interpretation of “social visibility” is

inconsistent with previous decisions and “makes no sense”).

PIRIR-BOC V. HOLDER 17

protected ground. Kamalthas v. I.N.S., 251 F.3d 1279, 1283

(9th Cir. 2001). The BIA denied Pirir-Boc relief under CAT

in a single sentence,9 stating that he “has failed to establish a

prima facie case for eligibility for relief under the Convention

Against Torture.” The BIA gave no explanation for its

decision; nor did it mention any evidence that it had

considered. “In order for the court to exercise our limited

authority, there must be a reasoned explanation by the BIA of

the basis for its decision.” Franco-Rosendo v. Gonzales,

454 F.3d 965, 966 (9th Cir. 2006) (citing Movsisian v.

Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005)). Under the

regulations, “[i]n making a CAT decision, . . . ‘all evidence

relevant to the possibility of future torture shall be

considered.” Cole, 659 F.3d at 771 (quoting 8 C.F.R.

1208.16(c)(3)). While the BIA is not required to “discuss

each piece of evidence submitted,” where there is “any

indication that the BIA did not consider all of the evidence

before it, a catchall phrase does not suffice, and the decision

cannot stand. Such indications include . . . failing to mention

highly probative or potentially dispositive evidence.” Id. at

771–72.

We therefore remand Pirir-Boc’s CAT claim to the BIA

for reconsideration. See Movsisian, 395 F.3d at 1099; Tapia

Madrigal v. Holder, 716 F.3d 499, 509 (9th Cir. 2013).

9

The IJ failed to grant Pirir-Boc relief under CAT because he did not

specifically request that relief. However, a CAT claim is sufficiently

raised when an alien declares his fear of future torture on his asylum

application and provides supporting evidence during the removal hearing.

Nuru v. Gonzales, 404 F.3d 1207, 1223 n.13 (9th Cir. 2005). Here, on his

I-589 asylum application, Pirir-Boc answered “yes” to the question “Are

you afraid of being subjected to torture in your home country . . . ?” He

also provided evidence in the form of a State Department Report that the

government would be unable or unwilling to protect him.

18 PIRIR-BOC V. HOLDER

*

For the reasons stated above, we grant Pirir-Boc’s petition

for review with respect to his claims for asylum based on a

particular social group, withholding of removal, and relief

under CAT, and remand the claims to the BIA for further

consideration consistent with this opinion.

Petition GRANTED and REMANDED.