                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS
                                                                                FILED
                            FOR THE NINTH CIRCUIT
                                                                                 DEC 23 2019
GUSTAVO ADOLFO MARTINEZ,                          No. 17-73088            MOLLY C. DWYER, CLERK
                                                                               U.S. COURT OF APPEALS


              Petitioner,                         Agency No. A208-928-871

 v.
                                                  MEMORANDUM*
WILLIAM P. BARR, Attorney General,

              Respondent.


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

                      Argued and Submitted December 9, 2019
                               Seattle, Washington

Before: GRABER, BERZON, and HIGGINSON,** Circuit Judges.

      Petitioner Gustavo Adolfo Martinez seeks review of the Board of

Immigration Appeals’ ("BIA") final order denying his requests for asylum,

withholding of removal, and relief under the Convention Against Torture. We

deny the petition in part, grant it in part, and remand for reconsideration.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Stephen A. Higginson, United States Circuit Judge for the U.S.
Court of Appeals for the Fifth Circuit, sitting by designation.
      1. With respect to the claims for asylum and withholding of removal, the

main issue that the petition for review raises is whether, in Honduras, people who

witness gang violence, cooperate with police, and are designated Protected Witness

Complainants constitute a "particular social group." 8 U.S.C. § 1101(a)(42)(A).

Rather than reach the social-group question, we remand for reconsideration of a

potentially dispositive issue that was analyzed inadequately by the BIA.

      The government now concedes that the harm Petitioner suffered constitutes

persecution. But the government argues, and the BIA concluded, that the

Honduran government was neither unwilling nor unable to control the relevant

gang violence. The BIA’s analysis is inaccurate and incomplete.

      Although the BIA’s decision uses the phrase "unable or unwilling" in

reference to the Honduran government’s control of the M-18 gang, the discussion

focuses only on willingness to control M-18. The BIA’s descriptions of the

relevant caselaw suggest that the government must either condone the violence or

fail to take reasonable steps to prevent or respond to it. That formulation is

incorrect. It was legal error to consider only the Honduran government’s

willingness to control gang violence; an analysis of the government’s ability to do

so also is required. Madrigal v. Holder, 716 F.3d 499, 506–07 (9th Cir. 2013).

Although the immigration judge and the BIA discussed the steps that police took to


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protect Petitioner, neither addressed the "efficacy of those efforts." Id. at 506

(emphasis added). The BIA must consider that question in the first instance. Id. at

507.

       For that reason, we grant the petition with respect to the claims for asylum

and withholding of removal, and we remand the matter to the BIA for

reconsideration.

       2. We deny the petition as to Petitioner’s claim for relief under the

Convention Against Torture. See Shrestha v. Holder, 590 F.3d 1034, 1048 (9th

Cir. 2010) (stating standard of review). The BIA’s conclusion that the Honduran

government is willing to combat gang violence is supported by substantial

evidence. Even if the BIA were to conclude that the Honduran government is not

able to control violence by M-18, ineffectiveness, without more, would not raise an

inference that the government would acquiesce in any torture that might occur.

Garcia-Milian v. Holder, 755 F.3d 1026, 1034 (9th Cir. 2014).

       PETITION DENIED IN PART, GRANTED IN PART, AND

REMANDED. The panel will retain the case if a further petition for review is

filed. Each party shall bear their own costs.




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