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Gutierrez v. Garland

United States Court of Appeals, Ninth Circuit
Oct 17, 2022
No. 21-70448 (9th Cir. Oct. 17, 2022)

Opinion

21-70448

10-17-2022

VICENTE ROJAS GUTIERREZ; et al., Petitioners, v. MERRICK B. GARLAND, Attorney General, Respondent.


NOT FOR PUBLICATION

Submitted October 3, 2022 Portland, Oregon

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

On Petition for Review of an Order of the Board of Immigration Appeals Agency Nos. A208-120-738, A208-120-645, A208-120-646

Before: OWENS and MILLER, Circuit Judges, and EZRA, District Judge.

The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

MEMORANDUM

Vicente Rojas Gutierrez and Maria de Jesus Samora Castellanos as well as their minor daughter K.M.R.S. petition for review of the decision of the Board of Immigration Appeals dismissing their applications for asylum and withholding of removal. Castellanos and K.M.R.S. are derivative beneficiaries of Gutierrez's application. Only K.M.R.S. is a derivative beneficiary of Castellanos's application. We have jurisdiction under 8 U.S.C. § 1252, and we grant the petition in part and deny it in part.

1. We grant Castellanos's petition for review and remand to the agency for reconsideration of her family social group claims in light of an intervening change in the law. The Board denied the claim based on Matter of L-E-A-, 27 I. &N. Dec. 581 (A.G. 2019), which held that "in the ordinary case, a nuclear family will not, without more," qualify as a "particular social group." Id. at 589. Under that rule, Castellanos and K.M.R.S.'s family was not a socially distinct "particular social group." But the Attorney General subsequently vacated that decision. Matter of L-E-A-, 28 I. &N. Dec. 304 (A.G. 2021). The government concedes that remand is warranted so that the agency can reconsider the claims in light of that more recent decision.

2. Gutierrez does not challenge the Board's denial of his application for asylum and withholding of removal. He nonetheless requests that we stay the mandate so that Castellanos, once her case is remanded to the Board, may amend her application to include Gutierrez as a derivative asylum beneficiary. We decline to stay the mandate on the basis of a hypothetical amendment that Castellanos has yet to file. We have resolved the petition that Gutierrez has presented to us, and the mandate will issue accordingly.

The remand automatically stays the order of removal as to Castellanos and K.M.R.S., so their motion for a stay of removal (Dkt. No. 1) is denied as unnecessary. As to Gutierrez, the motion for a stay of removal is denied. The government's motion to strike the reply brief (Dkt. No. 23) is denied.

The parties shall bear their own costs.

PETITION GRANTED in part and DENIED in part; REMANDED.

The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation.


Summaries of

Gutierrez v. Garland

United States Court of Appeals, Ninth Circuit
Oct 17, 2022
No. 21-70448 (9th Cir. Oct. 17, 2022)
Case details for

Gutierrez v. Garland

Case Details

Full title:VICENTE ROJAS GUTIERREZ; et al., Petitioners, v. MERRICK B. GARLAND…

Court:United States Court of Appeals, Ninth Circuit

Date published: Oct 17, 2022

Citations

No. 21-70448 (9th Cir. Oct. 17, 2022)