                                                                            FILED
                             NOT FOR PUBLICATION
                                                                             FEB 01 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT

LEOBALDO RAMOS-VASQUEZ;                          No. 08-75037
LEIDY RAMOS-VASQUEZ; ROSE
DALIA RAMOS-VASQUEZ,                             Agency Nos. A098-291-127
                                                             A098-291-128
              Petitioners,                                   A098-291-129

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

              Respondent.


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

                             Submitted January 30, 2018**
                               San Francisco, California

Before: GRABER and CHRISTEN, Circuit Judges, and TUNHEIM,*** Chief
District Judge.




      *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
        The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
      ***
          The Honorable John R. Tunheim, Chief United States District Judge for
the District of Minnesota, sitting by designation.
      Petitioners Leobaldo Ramos-Vasquez, Rose Dalia Ramos-Vasquez, and

Leidy Ramos-Vasquez, who are natives and citizens of Guatemala, petition for

review of a final order of removal entered by an immigration judge ("IJ"). The IJ

entered that order following a remand from the Board of Immigration Appeals

("BIA"), which had sustained the government’s appeal of a different IJ’s grant of

asylum to Petitioners.1 We deny the petition in part, grant the petition in part, and

remand to the BIA.

      1. We reject the argument that the BIA never reversed the grant of

humanitarian asylum to Petitioners Rose Dalia and Leobaldo Ramos-Vasquez and

that they are thus entitled to asylum. The BIA found that none of the Petitioners

established past persecution, which is a prerequisite to obtaining humanitarian

asylum. 8 C.F.R. § 208.13(b)(1). Accordingly, the BIA necessarily reversed the

IJ’s grant of humanitarian asylum.

      2. We are unpersuaded by Petitioners’ argument that this case should be

remanded so that their claim for relief under the Convention Against Torture

("CAT") can be addressed by the BIA. Petitioners failed to press that claim before



      1
        Because the BIA remanded to the IJ to consider both Petitioners’ eligibility
for voluntary departure and "any other relief to which they may be entitled," the
BIA’s decision did not constitute a final order of removal. Abdisalan v. Holder,
774 F.3d 517, 526 (9th Cir. 2015) (en banc).
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the IJ after their case was remanded, so they cannot now complain that the agency

has not had an adequate opportunity to address the claim.

      3. We grant the petition insofar as Petitioners seek review of the BIA’s

determination regarding their eligibility for asylum. The BIA ruled that Petitioners

had failed to establish a well-founded fear of persecution on account of a statutory

ground. The BIA gave two independent reasons for that conclusion: (1)

Petitioners would not be considered street children, and (2) "street children in

Guatemala" do not comprise a "particular social group."

      a. The first ground amounted to a rejection of the IJ’s factual finding that

Petitioners would be considered street children. See In re A-R-C-G-, 26 I. & N.

Dec. 388, 391 (B.I.A. 2014) ("The question whether a person is a member of a

particular social group is a finding of fact . . ."); see also Vitug v. Holder, 723 F.3d

1056, 1063 (9th Cir. 2013) ("Facts include past events, but they are not restricted

to historical events. They also include . . . expressions of likelihood based on

testimony (both lay and expert) and/or documentary evidence." (citations and

internal quotation marks omitted)). Accordingly, the BIA should have reviewed

the IJ’s determination for clear error. In re A-R-C-G-, 2 I. & N. Dec. at 391.

However, the BIA failed to "specifically address any clear errors the IJ made in his

factual findings" and instead appeared to "substitute its own view of the facts" for


                                            3
that of the IJ. Ridore v. Holder, 696 F.3d 907, 919 (9th Cir. 2012). The BIA thus

either conducted de novo review or failed to explain adequately why the IJ clearly

erred in his factual findings. Either way, the BIA committed legal error, and its

ultimate determination regarding Petitioners’ eligibility for asylum cannot be

upheld on this ground.

      b. The second ground amounted to a legal conclusion that "street children in

Guatemala" do not comprise a "particular social group" under the Immigration and

Nationality Act ("INA"). Pirir-Boc v. Holder, 750 F.3d 1077, 1081 (9th Cir.

2014). The BIA’s decision in this case predated its decisions in In re M-E-V-G-,

26 I. & N. Dec. 227 (B.I.A. 2014), and In re W-G-R-, 26 I. & N. Dec. 208 (B.I.A.

2014), as well as our subsequent decision in Reyes v. Lynch, 842 F.3d 1125 (9th

Cir. 2016), which accorded the BIA’s construction of the "particularity" and

"social distinction" requirements Chevron deference. Because those decisions

might affect the agency’s analysis, we remand to the BIA to "reconsider its

determination[] that the particular social group[] offered by Petitioners [is] not

cognizable under the INA." Cordoba v. Holder, 726 F.3d 1106, 1117 (9th Cir.

2013).




                                           4
      4. Because the BIA’s denial of Petitioners’ claim for withholding of

removal was premised entirely on its denial of their asylum claim, we grant and

remand the petition for review insofar as it pertains to the withholding claim.

      Petition DENIED in part, GRANTED in part, and REMANDED. The

parties shall bear their own costs on appeal.




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