Batdorj Erdenebat; Bayartsetseg Tsogtbayar; Namulan Batdorj v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BATDORJ ERDENEBAT;
BAYARTSETSEG TSOGTBAYAR;
NAMULAN BATDORJ,
Petitioners,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 20-73288
Agency Nos. A216-524-932
A216-524-933
A216-524-934
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 14, 2022**
San Francisco, California
Before: GOULD, NGUYEN, and BENNETT, Circuit Judges.
Batdorj Erdenebat, his wife Bayartsetseg Tsogtbayar, and their daughter
Namulan Batdorj, natives and citizens of Mongolia, petition for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing their appeal from the
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
JAN 27 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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immigration judge’s decision denying their application for asylum. In addition, the
BIA denied petitioners’ motion to remand so that Tsogtbayar could apply for
asylum individually rather than derivatively through Erdenebat.
We have jurisdiction under 8 U.S.C. § 1252. Reviewing legal conclusions
de novo, factual findings for substantial evidence, and the remand decision for
abuse of discretion, see Kaur v. Wilkinson, 986 F.3d 1216, 1221 (9th Cir. 2021)
(asylum); Taggar v. Holder, 736 F.3d 886, 889 (9th Cir. 2013) (remand), we grant
the petition for review and remand to the BIA for further proceedings.
1. The BIA failed to address petitioners’ claim that Erdenebat was
persecuted by the police—not Dash Bayasgalan and Dash’s father—on account of
an imputed political opinion. Petitioners argued to the BIA that “the police . . .
threaten[ed] [Erdenebat] with arrest and prosecution” without “any legitimate
prosecutorial justification” based on the officers’ false belief that he “desire[d] to
politically harm [Dash’s] father.” Because the BIA addressed a different
argument, it considered whether Dash and his father had a political motive. The
proper inquiry is whether the police officers had such a motive. See Kaur, 986
F.3d at 1226 (“When evaluating whether a petitioner has been persecuted ‘on
account of’ a protected ground, we examine the persecutor’s motive . . . .”
(emphasis added)). We therefore remand for the BIA to consider this claim. See
Rios v. Lynch, 807 F.3d 1123, 1126 (9th Cir. 2015).

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2. We also remand for the BIA to reconsider, in light of In re L-E-A-
(“L-E-A- III”), 28 I. & N. Dec. 304 (U.S. Att’y Gen. 2021), its order denying
petitioners’ motion to remand. As the government acknowledges, the BIA’s
analysis rested on In re L-E-A-, 27 I. & N. Dec. 581 (U.S. Att’y Gen. 2019), which
L-E-A- III vacated. We decline petitioners’ invitation to hold that Tsogtbayar
“establish[ed] a prima facie case for asylum relief,” which would require fact-
based inquiries that we cannot perform in the first instance. See INS v. Orlando
Ventura, 537 U.S. 12, 16 (2002) (per curiam).
PETITION GRANTED; REMANDED.

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