                                                                              FILED
                            NOT FOR PUBLICATION                               DEC 04 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


GODOFREDO QUINTANILLA                            No. 11-73620
ORELLANA,
                                                 Agency No. A200-036-023
              Petitioner,

  v.                                             MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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

                    Argued and Submitted November 19, 2014
                              Pasadena, California

Before:       W. FLETCHER and BYBEE, Circuit Judges, and SINGLETON,
              Senior District Judge.**

       Petitioner Godofredo Quintanilla-Orellana, an alien from El Salvador, and

his brother-in-law witnessed Mara Salvatrucha (“MS-13”) gang members shoot a

young boy. Petitioner and his brother-in-law reported what they had seen to the

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable James K. Singleton, Senior District Judge for the U.S.
District Court for the District of Alaska, sitting by designation.
police and, on the basis of their report, the police arrested two MS-13 gang

members. In retaliation, MS-13 members threatened to kill Petitioner and

subsequently murdered his brother-in-law. Petitioner fled to the United States and

now seeks asylum, withholding of removal, and protection under the Convention

Against Torture (“CAT”).

      Petitioner argues that he is entitled to asylum and withholding of removal as

a member of a particular social group of “crime witnesses who give incriminating

statements to the police against gangs.” Before the BIA, however, Petitioner

argued for a broader definition of the social group to which he belonged: “people

who have been persecuted by gang members in a country, which is unable or

unwilling to control gang violence.” Nevertheless, in his brief to the BIA,

Petitioner accurately described his particular situation, which fits into the narrower

social group in which he now claims membership. Since the BIA’s decision, this

Court, sitting en banc, found that the BIA misapplied its own precedents when it

held that witnesses who testify against gang members may not constitute a

particular social group. Henriquez-Rivas v. Holder, 707 F.3d 1081, 1083 (9th Cir.

2013) (en banc). The government argues that Petitioner cannot benefit from this

intervening decision because Petitioner did not exhaust the argument that he

belongs to that group.


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      We disagree. First, Petitioner did not need to exhaust this argument. While

this Court lacks jurisdiction over claims that were not presented to the BIA, there is

an exception for arguments that were “entirely foreclosed” at the time of the BIA

proceedings. Alvarado v. Holder, 759 F.3d 1121, 1128 (9th Cir. 2014); see also 8

U.S.C. § 1252(d)(1) (aliens must exhaust “all administrative remedies available to

the alien as of right” (emphasis added)). If circuit or agency precedent forecloses a

claim, “such that the agency cannot give it unencumbered consideration, it is not

available as of right and the statute does not require it to be exhausted, although

‘prudential exhaustion requirements still apply.’” Alvarado, 759 F.3d at 1128

(quoting Sun v. Ashcroft, 370 F.3d 932, 942 (9th Cir. 2004)).

      At the time of Petitioner’s proceedings below, the claim that crime witnesses

against gangs could constitute a particular social group was “precluded by this

Court’s precedent.” Henriquez-Rivas v. Holder, 449 F. App’x. 626, 628 (9th Cir.

2011) (rejecting proposed social group of “people who testify against gang

members in court,” where Salvadoran woman witnessed MS-13 kill her father and

testified against the gang); see also Velasco-Cervantes v. Holder, 593 F.3d 975,

978 (9th Cir. 2010) (rejecting proposed social group of “former material witnesses

for the government”); Soriano v. Holder, 569 F.3d 1162, 1166 (9th Cir. 2009)

(rejecting proposed social group of “government informants”). However, after the


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BIA’s decision in this case, an en banc panel of this Court overruled those

precedents. Henriquez-Rivas, 707 F.3d at 1093–94. Petitioner is now entitled to

raise his newly available argument.

      Second, even if Petitioner was required to exhaust this argument, he did so.

An alien “is deemed to have exhausted only the issues raised and argued in [his]

brief” to the BIA. Alvarado, 759 F.3d at 1128 (citing Abebe v. Mukasey, 554 F.3d

1203, 1208 (9th Cir. 2009) (en banc) (per curiam)). But a “petitioner need not . . .

raise [his] precise argument” in that brief. Id. (quoting Vizcarra-Ayala v. Mukasey,

514 F.3d 870, 873 (9th Cir. 2008)); see also Pagayon v. Holder, 675 F.3d 1182,

1188 (9th Cir. 2011) (“[T]he petitioner is not limited to raising issues in exactly the

same terms as they were presented to the Board.”). Although Petitioner framed his

argument to the BIA based on a different characterization of his particular social

group, Petitioner explained that the basis for his asylum application was the threat

of gang violence that he faced as a result of giving testimony against MS-13 to the

Salvadoran police. This was enough to put the BIA on notice that he was seeking

asylum as a crime witness against a gang.

      Remand is appropriate because “a court’s role in an immigration case is

typically one of ‘review, not of first view.’” Gonzales v. Thomas, 547 U.S. 183,

185 (2006) (per curiam) (quoting INS v. Orlando Ventura, 537 U.S. 12, 29 (2002)


                                          -4-
(per curiam)). This Court cannot decide in the first instance whether Petitioner

belongs to a particular social group. Rather, in light of the intervening precedent,

the BIA must “determin[e] the facts and decid[e] whether the facts as found fall

within” the new definition of particular social group. Id. at 186. The BIA should

conduct its inquiry on an open record in order to decide whether, in light of

Henriquez-Rivas, Petitioner is entitled to asylum and withholding of removal.

      However, we deny Petitioner’s CAT claim. Substantial evidence supports

the BIA’s conclusion that the Salvadoran government does not acquiesce in gang

violence. See Garcia-Milian v. Holder, 755 F.3d 1026, 1034 (9th Cir. 2013). The

government’s anti-gang efforts “have not achieved the desired goals of resolving

crimes and protecting citizens, [but] they support the BIA’s determination that the

government is not wilfully blind” to the problem of gang violence. Id. at 1035.

      Finally, we deny as moot Petitioner’s motion to take judicial notice of the

2013 U.S. Department of State Report on Human Rights Practices in El Salvador

and two recent articles in the New York Times and Reuters.

      PETITION GRANTED AND REMANDED




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