                                                                           FILED
                            NOT FOR PUBLICATION
                                                                           MAY 02 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ANASTACIO SILVA-NUNEZ, AKA                       No. 15-70123
Horalio Silva Arreola, AKA Chito Silva-
Nunez,                                           Agency No. A089-839-971

              Petitioner,
                                                 MEMORANDUM*
 v.

JEFFERSON B. SESSIONS III, Attorney
General,

              Respondent.


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

                        Argued and Submitted April 6, 2017
                               Seattle, Washington

Before: KOZINSKI and W. FLETCHER, Circuit Judges, and BLOCK,** District
Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Frederic Block, Senior United States District Judge for
the Eastern District of New York, sitting by designation.
      1. We lack jurisdiction to review the BIA’s factual determination that Silva-

Nunez’s failed to meet the one-year deadline to file for asylum because he was

afraid of deportation and ignorant of asylum rather than due to his alleged PTSD.

See Gasparyan v. Holder, 707 F.3d 1130, 1134 (9th Cir. 2013). Because we lack

jurisdiction, we deny Silva-Nunez’s motion to take judicial notice of documents

related to this claim [Dkt. #14].

      2. The BIA did not err in concluding that Silva-Nunez failed to carry his

burden to show that “people who expressed their opposition to the drug cartel

members” is a “particular social group” and thus that Silva-Nunez is ineligible for

withholding of removal pursuant to 8 U.S.C. § 1231(b)(3). Silva-Nunez failed to

offer evidence that he, like the asylum-seeker in Pirir-Boc v. Holder, 750 F.3d

1077, 1084-85 (9th Cir. 2014), had engaged in public opposition to the cartels. His

opposition to gang recruitment by gang members, without more, did not establish

the requisite social distinction of the claimed group. See Ramos-Lopez v. Holder,

563 F.3d 855, 861-62 (9th Cir. 2009), abrogated on other grounds by Henriquez-

Rivas v. Holder, 707 F.3d 1081, 1093 (9th Cir. 2013).

      3. The IJ’s and BIA’s determination that Silva-Nunez failed to show “that it

is more likely than not that he . . . would be tortured if removed to” Mexico, 8

C.F.R. § 208.16(c)(2), was not “supported by reasonable, substantial, and probative


                                          2
evidence on the record considered as a whole.” Singh v. Holder, 656 F.3d 1047,

1051 (9th Cir. 2011) (citations and internal quotation marks omitted). The IJ found

that Silva-Nunez “failed to present any evidence that anyone in the gang has tried

to contact him” since his kidnapping and that Silva-Nunez “failed to identify

anyone in Mexico who would want to harm him or know that he was asked to join

the gang, accepted but then fled the country.” The BIA affirmed the IJ’s decision

in part on this basis. The factual basis for the BIA’s affirmance is fatally flawed.

Silva-Nunez presented credible testimony that a specific, named individual had

arranged for his kidnapping by the cartel, had been in contact with Silva-Nunez

after the kidnapping, and had warned Silva-Nunez not to tell anyone about the

incident.

      The BIA further erred as a matter of law in concluding Mexican officials

would not acquiesce to Silva-Nunez’s torture. First, the BIA failed to consider the

attitudes or actions of local Mexican officials, instead considering only federal

efforts to control gangs. See Madrigal v. Holder, 716 F.3d 499, 509–10 (9th Cir.

2013). Second, the BIA erred in finding that the difficulty of “disentang[ling]

inability from unwillingness” weighed against a finding of official acquiescence.

See Barajas-Romero v. Lynch, 846 F.3d 351, 363 (9th Cir. 2017) (“[T]he BIA




                                           3
focused only on the national government’s efforts and not their efficacy, which

was mistaken under Madrigal.”).

      Silva-Nunez presented credible testimony, both his own and that of an

expert on Mexican gangs, as well as documentary evidence, compelling the

conclusion that “it is more likely than not that he would be tortured if removed” to

Mexico. 8 C.F.R. § 208.16(c)(2). We remand to the BIA so that it may consider,

after correcting the above-described errors, whether Silva-Nunez is able to relocate

within Mexico to avoid torture. See Maldonado v. Lynch, 786 F.3d 1155, 1164

(9th Cir. 2015). Each party to bear its own costs.

      PETITION GRANTED.




                                          4
