Elsy Emperatriz Del Cid- Marquez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELSY EMPERATRIZ DEL CID-
MARQUEZ; DAMARIS EVANGELINA
HERNANDEZ-DEL CID; JOSUE
FRANCISCO HERNANDEZ-DEL CID;
WILSON GABRIEL HERNANDEZ-DEL
CID,
Petitioners,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 19-70663
Agency Nos. A209-233-408
A209-233-409
A209-233-410
A209-233-411
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 21, 2022**
San Francisco, California
FILED
JUN 10 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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Before: SCHROEDER and BADE, Circuit Judges, and JACK,*** District Judge.
Petitioner Elsy Del Cid-Marquez and her three children, Josue, Damarias1
and Wilson (collectively, “Petitioners”), citizens of El Salvador, petition for review
of the Board of Immigration Appeals’ (BIA) denial of their applications for
asylum, withholding of removal, and protection under the Convention Against
Torture (CAT). Elsy’s children are derivative beneficiaries of her asylum
application, and each child filed an individual application relying on Elsy’s
application.
After Josue refused to assist one of the local gangs, the gang identified
Damarias as his sister, attacked her, and threatened to kill and dismember her.
The principal contention of Petitioners with respect to asylum and withholding,
before the BIA and before this court, has been that they have been targeted for
persecution on account of their “membership in a particular social group” within
the meaning of 8 U.S.C. § 1158(b)(1)(B)(i). Their designated group is their
family. The BIA, while assuming without deciding that the family was a valid
social group, denied relief because it said Petitioners had not established they faced
*** The Honorable Janis Graham Jack, United States District Judge for
the Southern District of Texas, sitting by designation.
1Although the agency referred to Damarias as “Damaris,” we refer to her as
“Damarias,” consistent with Petitioners’ briefing.
2

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a greater likelihood of harm from gangs than anyone else in El Salvador. That
conclusion is irrelevant to the required nexus analysis. Parussimova v. Mukasey,
555 F.3d 734, 741 (9th Cir. 2009) (“[T]o demonstrate that a protected ground was
“at least one central reason” for persecution, an applicant must prove that such
ground was a cause of the persecutors’ acts.” (emphasis added)). The BIA did not
address Petitioners’ contention that the attack on Damarias and threats on her life
were premised on her family relationship to Josue. The BIA treated the incident as
if it were only one of gang violence. The BIA, thus, did not consider that
persecutors often have mixed motives, and “[o]ur mixed-motive cases make clear
that the petitioner need not show that a protected ground was the only reason for
persecution.” Garcia v. Wilkinson, 988 F.3d 1136, 1143 (9th Cir. 2021).
Petitioners now ask us, as they asked the BIA, to hold that they have
established eligibility for asylum and entitlement to withholding of removal on the
basis of membership in their family, a statutorily protected social group. We,
however, cannot decide an issue that the BIA did not decide. See INS v. Ventura,
537 U.S. 12, 16-17 (2002) (per curiam). The BIA failed to decide whether the past
persecution was because of membership in a statutorily protected social group. We
therefore must remand the asylum and withholding claims for the agency to decide
the issue in the first instance.
3

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To prevail on their CAT claim, Petitioners were required to show a
likelihood of torture inflicted or instigated by a government official or with
governmental acquiescence. 8 C.F.R. § 208.18(a)(1). There is substantial
evidence in the record that the government does not participate in or acquiesce to
gang violence, although its actions against gangs may prove less than effective. See
Andrade-Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 2016) (holding that
acquiescence requires something more than “general ineffectiveness on the
government’s part”). The BIA’s denial of CAT relief must be upheld.
Petition Granted in Part, Denied in Part, and Remanded. Each party
shall bear its own costs.
4

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