                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                       MAY 30 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

OMAR GALLARDO-TORRES,                           No.    16-71810

                Petitioner,                     Agency No. A200-876-865

 v.
                                                MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,

                Respondent.

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

                       Argued and Submitted May 16, 2018
                                Portland, Oregon

Before: TASHIMA, McKEOWN, and PAEZ, Circuit Judges.

      Petitioner Omar Gallardo-Torres petitions for review of the Board of

Immigration Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”)

denial of asylum, withholding of removal, and CAT protection. We have

jurisdiction under 8 U.S.C. § 1252. We grant the petition and remand.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1.    Protected Social Group. The IJ and BIA found that Gallardo-Torres had

faced past persecution based on an experience in Michoacán, Mexico when

Gallardo-Torres was seventeen. Members of a drug cartel shot Gallardo-Torres

twice and shot his brother more than twenty times, ultimately killing his brother.

The IJ and BIA, however, did not find that persecution occurred on account of

Gallardo-Torres’s membership in a protected social group.

      The agency’s conclusion that Gallardo-Torres was not a member of the

protected social group of “relatives of former drug cartel members” is not

supported by substantial evidence. The BIA acknowledged that Gallardo-Torres’s

testimony provided some evidence pertaining to his membership in the group, but

stated that Gallardo-Torres’s testimony “represented a vague, subjective belief and

is untethered to other objective evidence that would establish such a link.” This

factual determination does not recognize or acknowledge that Gallardo-Torres’s

asylum application—which he testified was accurate—stated that Gallardo-

Torres’s brother was involved with a group of criminals, which did not have a

name at that time, but he “think[s] they are part of ‘La Familia Michoacana’ now.”

Gallardo-Torres additionally stated in his application that his older brother was

involved in drug trafficking and described how his brother had refused to involve

his friends and family in such activity, thereby angering the drug dealers.




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      Given the details in Gallardo-Torres’s asylum application that describe his

brother’s membership in a drug cartel, coupled with his testimony that his brother

was “possibly” in a drug cartel, any reasonable adjudicator would be compelled to

conclude that Gallardo-Torres established his membership in the social group

“family members of former drug cartel members.” 8 U.S.C. § 1252(b)(4)(B); INS

v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992). Gallardo-Torres affirmed the

contents of his application under oath and the IJ found his testimony credible.

Gallardo-Torres presented sufficient evidence to establish his membership in this

social group, as his asylum application and testimony were “credible, persuasive,

and refer[ ] to specific facts.”1 8 U.S.C. § 1158(b)(1)(B)(ii).

      The BIA and IJ did not err in analyzing Gallardo-Torres’s other proposed

social groups and determining that none of them was cognizable. The agency’s

determination that the particular social group “witnesses who report drug cartel

violence” lacks social distinctiveness is supported by substantial evidence. Cf.

Matter of M-E-V-G-, 26 I&N Dec. 227, 230-33, 237 (BIA 2014). Henriquez-Rivas

v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc) is distinguishable because there



1
 The IJ determined that even if Gallardo-Torres was a member of the above group,
he did not present evidence from which it was reasonable to believe that his
membership in this group was a central motivating factor for his persecutors. The
BIA, however, did not address this part of the IJ’s decision. On remand the BIA
may consider this issue in the first instance. See INS v. Ventura, 537 U.S. 12, 16-
17 (2002).

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the proposed social group consisted of those who had testified against gang

violence and record evidence supported that Salvadoran society viewed those who

testified against gang violence as a group. Id. at 1091-92. Additionally, while

Henriquez-Rivas concluded that social visibility may be viewed from the

perspective of the persecutor, we have since extended deference to the BIA’s

precedential ruling that social distinction is viewed from the perspective of the

society writ large. See Garay Reyes v. Lynch, 842 F.3d 1125, 1136-37 (9th Cir.

2016) (deferring to the BIA’s interpretation in Matter of M-E-V-G-, 26 I&N Dec.

at 242).

         Substantial evidence also supports the BIA’s determination that the

proposed group “landowners in Mexico” is not socially distinct or particular. Cf.

Matter of M-E-V-G-, 26 I&N Dec. at 241. Lastly, the proposed group “deportees

from the United States to Mexico with close family ties in the United States” lacks

particularity. See Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151-52 (9th Cir.

2010).

2.    Internal Relocation. The BIA also affirmed the IJ’s determination that

Gallardo-Torres could internally relocate within Mexico, thereby rebutting any

presumption of past persecution of a protected social group. In making this

determination, the IJ and subsequently the BIA erred in failing to consider all the

factors set forth in the governing regulations. 8 C.F.R. § 1208.13(b)(3) (asylum); 8


                                          4
C.F.R. § 1208.16(b)(3) (withholding of removal). The record evidence shows

ongoing civil strife, such as wide-spread kidnappings and that Gallardo-Torres’s

social situation changed as a result of his mother’s death and his brother Juan’s

attempt to leave the country. The BIA erred as a matter of law by failing to

consider all of the relevant factors as required by the applicable regulations. See

Afriyie v. Holder, 613 F.3d 924, 935 (9th Cir. 2010); see also Knezevic v. Ashcroft,

367 F.3d 1206, 1215 (9th Cir. 2004) (remanding the issue of reasonable internal

relocation to the BIA because the “IJ failed to take into account the numerous

factors for determining reasonableness”). Accordingly, we remand for the BIA to

consider all relevant internal relocation factors in addition to whether Gallardo-

Torres experienced past persecution on the basis of his membership in the social

group of “close family members of former drug cartel members.”2

3.    Convention Against Torture. Finally, the BIA affirmed the IJ’s

determination that Gallardo-Torres was not eligible for relief under CAT because

Gallardo-Torres lived safely within Mexico after his brother’s death. In

determining whether to grant relief under CAT, the agency must consider all

relevant evidence, and no one factor is determinative. Maldonado v. Lynch, 786



2
 If, on remand, the BIA determines that there is past persecution on account of a
protected social group but that internal relocation is possible, it should then
consider Gallardo-Torres’s humanitarian asylum claim under 8 C.F.R. §
1208.13(b)(1)(iii).

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F.3d 1155, 1164 (9th Cir. 2015) (en banc); 8 C.F.R. § 1208.16(c)(3). Here the BIA

and IJ based their CAT determinations on the fact that Gallardo-Torres had

previously lived safely in Mexico, without mentioning highly probative evidence

that conditions may have changed since Gallardo-Torres lived in Mexico such as

his friend Alfredo’s murder and an increasing number of kidnappings targeted at

wealthy outsiders. Cole v. Holder, 659 F.3d 762, 771-72 (9th Cir. 2011). This was

legal error. We grant the petition and remand so that the agency may consider all

relevant 8 C.F.R. § 1208.16(c)(3) factors in making its CAT determination. Id.;

see also Aguilar-Ramos v. Holder, 594 F.3d 701, 705 (9th Cir. 2010).

      GRANTED AND REMANDED.




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