Marco Martinez-Seren v. ERIC H. HOLDER Jr., Attorney General

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARCO MARTINEZ-SEREN,
Petitioner,
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
No. 09-71780
Agency No. A200-115-388
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted August 2, 2010
Seattle, Washington
Before: CANBY, NOONAN and BERZON, Circuit Judges.
Marco Martinez-Seren petitions for review of a decision of the Board of
Immigration Appeals (“BIA”) overturning an immigration judge’s (“IJ”) grant of
asylum and withholding of removal. See 8 U.S.C §§ 1158 and 1231(b)(3).
Martinez-Seren claims that he fled his homeland of Honduras because of
persecution by the Mara Salvatrucha criminal gang on account of his membership
FILED
SEP 02 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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in a particular social group defined in part by membership in his family and in part
by his and his sister’s reporting the gang to the police. The IJ agreed, granting
Martinez-Seren asylum and withholding of removal. The Department of
Homeland Security (“DHS”) appealed the IJ’s decision to the Board of
Immigration Appeals (“BIA”), which reversed.
Before the BIA, both parties in their briefs addressed the question of whether
Martinez-Seren’s membership in his family, in addition to his act of reporting the
gang to the police, gave rise to a cognizable particular social group. See DHS Br.
to BIA 13-17; Pet. Br. to BIA 9-14. The BIA, however, in overturning the IJ’s
decision, focused on Martinez-Seren’s act of reporting the gang to the police,
equating his particular social group with “[p]ersons who resist gangs” In so
characterizing Martinez-Seren’s claim, the BIA failed to address the family aspect
of Martinez-Seren’s proposed particular social group. The BIA is “not free to
ignore arguments raised by a petitioner.” Sagaydak v. Gonzales, 405 F.3d 1035,
1040 (9th Cir. 2005). The family aspect of Martinez-Seren’s proposed particular
social group was particularly relevant in light of record evidence that the gang
targeted members of Martinez-Seren’s family in addition to him and his sister.
Accordingly, we grant the petition for review, vacate the BIA’s decision, and
remand Martinez-Seren’s case to the BIA so that it may adequately consider the

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family aspect of Martinez-Seren’s particular social group and any other issues that
thereby arise.
PETITION FOR REVIEW GRANTED; VACATED and REMANDED.

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