                                                                            FILED
                            NOT FOR PUBLICATION
                                                                             MAR 31 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ALEJANDRO HERNANDEZ-RAMOS,                       Nos. 13-70154
AKA Arturo Gonzales,                                  13-72096

              Petitioner,                        Agency No. A095-734-742

 v.
                                                 MEMORANDUM*
JEFF B. SESSIONS, Attorney General,

              Respondent.


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

                     Argued and Submitted February 10, 2017
                              Seattle, Washington

Before: PAEZ and CALLAHAN, Circuit Judges, and SELNA,** District Judge.

      Alejandro Hernandez-Ramos (“Hernandez-Ramos”), a native and citizen of

Mexico, petitions for review of his final order of removal as well as the denial of

his motion to reopen seeking the opportunity to apply for asylum, withholding of


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable James V. Selna, United States District Judge for the
Central District of California, sitting by designation.
removal, and protection under the Convention Against Torture (“CAT”). Because

we grant the petition for review of the motion to reopen, No. 13-72096, we dismiss

as moot the petition for review of the underlying removal order, No. 13-70154.

      We have jurisdiction pursuant to 8 U.S.C. § 1252. We review the Board of

Immigration Appeals’ (“BIA”) denial of a motion to reopen for abuse of discretion.

“The BIA abuses its discretion when it acts ‘arbitrarily, irrationally, or contrary to

the law.’” Tadevosyan v. Holder, 743 F.3d 1250, 1252–53 (9th Cir. 2014) (quoting

Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005)).

      On March 13, 2013, Hernandez-Ramos filed a timely motion to reopen with

the BIA to apply for asylum, withholding of removal, and protection under the

CAT. The BIA denied the motion to reopen, and Hernandez-Ramos filed the

instant petition for review. To prevail on a motion to reopen, Hernandez-Ramos

must demonstrate, inter alia, that he is prima facie eligible for the relief he seeks.1

See Ordonez v. I.N.S., 345 F.3d 777, 785 (9th Cir. 2003). To establish a prima

facie case “the evidence [must] reveal[] a reasonable likelihood that the statutory




      1
         The BIA found that Hernandez-Ramos met the other requirements for a
motion to reopen, stating that the evidence submitted was previously unavailable
and that the circumstances occurred after Hernandez-Ramos had been ordered
removed. See 8 C.F.R. § 1003.2(c)(1).
                                            2
requirements for relief have been satisfied.” Id. (quoting In re S–V, 22 I. & N.

Dec. 1306 (BIA 2000)).

      Therefore, the critical issue in this proceeding is whether the BIA correctly

concluded that Hernandez-Ramos failed to “present[] sufficient evidence to

establish that he now is prima facie eligible for asylum, withholding of removal or

protection under the CAT.”

Asylum and Withholding of Removal

      “The BIA has long and consistently held that ‘kinship ties’ are the sort of

common and immutable characteristic that give rise to a ‘particular social group.’”

Thomas v. Gonzalez, 409 F.3d 1177, 1184 (9th Cir. 2005) (en banc) (vacated on

other grounds, 547 U.S. 183 (2006)). Moreover, we have rejected any argument

that “a family can constitute a particular social group only when the alleged

persecution on that ground is intertwined with one of the other four grounds

enumerated in 8 U.S.C. §§ 1101(a)(42)(A), 1231(b)(3)(A).” Id. at 1188; see also

Rios v. Lynch, 807 F.3d 1123, 1128 (9th Cir. 2015).

      Here, although not a model of clarity, we agree with the BIA that

Hernandez-Ramos based his claim for asylum and withholding on his membership

in a protected social group consisting of individuals “who have family members in



                                          3
Mexico who have been targeted by Los Zetas.” In evaluating this claim, the BIA

stated that “[t]he respondent contends that the deaths of his family members and

friends show he is in danger, but the respondent has not provided sufficient

information to establish that these deaths occurred on account of one of the five

statutory grounds . . . .” In requiring Hernandez-Ramos to support his motion with

evidence that establishes the basis for his asylum and withholding claims, the BIA

applied an incorrect legal standard and therefore abused its discretion. See

Ordonez, 345 F.3d at 785 (stating that we do not “require[] a conclusive showing

that eligibility for relief has been established.”).

       Hernandez-Ramos’s burden at this stage is to show there is a reasonable

likelihood that he would be targeted on account of his relationship to his family if

he were to return to Mexico. See Rios, 807 F.3d at 1128; Ordonez, 345 F.3d at

785. Hernandez-Ramos has met his burden: given the recent deaths of several

family members, as well as the surveillance and questioning of his immediate

family, Hernandez-Ramos has established a reasonable likelihood that he would be

targeted by either Los Zetas, or the government in concert with Los Zetas, on

account of his kinship ties. Having presented evidence of his ties to his family, he

has presented a prima facie case for relief. Rios, 807 F.3d at 1128.

Convention Against Torture

                                             4
      In determining Hernandez-Ramos’s eligibility for CAT relief, the BIA also

committed legal error and thereby abused its discretion. After analyzing

Hernandez-Ramos’s evidence, the BIA stated that it was “not sufficient to establish

that the respondent has a clear probability of facing torture at the hands of or with

the acquiescence of the Mexican government.” This is not the correct standard—in

a motion to reopen, Hernandez-Ramos does not need to demonstrate a “clear

probability” that he will suffer torture, but rather a reasonable likelihood that it is

more likely than not that he will suffer torture in Mexico. See Ordenez, 345 F.3d

at 785; Nuru v. Gonzales, 404 F.3d 1207, 1221 (9th Cir. 2005). As Hernandez-

Ramos has demonstrated a reasonable likelihood that he will be killed upon

returning to Mexico, he has met his burden in his motion to reopen. Bromfield v.

Mukasey, 543 F.3d 1071, 1079 (9th Cir. 2008) (“Acts constituting torture are

varied, and include beatings and killings.”); see also Reyes v. Lynch, 842 F.3d

1125, 1142 (9th Cir. 2016).

      In denying Hernandez-Ramos’s motion to reopen, the BIA applied the

incorrect legal standards and thereby abused its discretion. Accordingly, we grant

the petition for review in No. 13-72096, and remand to the BIA with instructions to

reopen so that Hernandez-Ramos can pursue his applications for asylum,




                                            5
withholding of removal, and protection under the CAT. The petition for review in

the consolidated matter, No. 13-70154, is dismissed as moot.

      The Petition for Review in No. 13-72096 is GRANTED and REMANDED.

      The Petition for Review in No. 13-70154 is DISMISSED as moot.




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