Marcos Aguilar-Rodriguez v. Jefferson Sessions
694 F. App'x 531
9th Cir.2017Background
- Aguilar, a Salvadoran national and former gang member with gang tattoos, sought withholding of removal, asylum, and CAT protection after removal proceedings.
- He claimed membership in the social group “former Salvadoran gang members with gang tattoos.”
- The BIA affirmed the IJ’s denial of withholding and denied reopening of his asylum and CAT claims.
- BIA found the proposed social group not legally cognizable, concluding the group lacked social distinction in El Salvador.
- Aguilar submitted evidence of changed country conditions under a new Salvadoran government: aggressive anti-gang policies, authorized searches/detention of tattooed persons, sanctioned lethal force, and reported extrajudicial killings.
- Ninth Circuit: denied review in part (social group/asylum), but granted and remanded as to the BIA’s summary denial of Aguilar’s motion to remand/reopen his CAT claim for failure to address the submitted evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether proposed social group is a cognizable particular social group for withholding of removal | Aguilar: “former Salvadoran gang members with gang tattoos” is a protected social group targeted for persecution | BIA: group lacks social distinction; not perceived as distinct in Salvadoran society | Court: BIA’s social-distinction finding supported by record; denial of withholding upheld |
| Whether Aguilar made prima facie asylum claim tied to that social group | Aguilar: fears persecution on account of group membership | Government: applicant failed to show persecution on account of a protected ground | Court: Aguilar did not meet prima facie burden; asylum reopening denial not an abuse of discretion |
| Whether BIA abused discretion by summarily denying motion to remand/reopen CAT claim | Aguilar: submitted new country-condition evidence showing tattoos make him likely to be tortured/killed under changed government policy | BIA: concluded he did not make prima facie CAT claim or show appreciably different risk than others (and denied reopening) | Court: BIA abused discretion by failing to address evidence or explain why remand was not worthwhile; remanded |
| Whether BIA must meaningfully explain denial of motion to reopen | Aguilar: BIA must address all submitted evidence and explain denial | BIA: (implicit) discretion to deny without detailed explanation | Court: precedent requires full explanation addressing submitted evidence; BIA’s terse denial was inadequate |
Key Cases Cited
- Reyes v. Lynch, 842 F.3d 1125 (9th Cir. 2016) (articulates social-distinction requirement and Chevron deference to BIA on social-group standard)
- Ochoa-Amaya v. Gonzales, 479 F.3d 989 (9th Cir. 2007) (standards for reopening asylum applications)
- Mohammed v. Gonzales, 400 F.3d 785 (9th Cir. 2005) (BIA must fully explain reasons for denying a motion to reopen and address all evidence)
- Ordonez v. INS, 345 F.3d 777 (9th Cir. 2003) (BIA should indicate whether further development at a hearing is worthwhile when deciding motions to reopen)
- Movsisian v. Ashcroft, 395 F.3d 1095 (9th Cir. 2005) (BIA abused discretion by denying motion to reopen without articulating reasons)