9th Circuit partly sides with immigrant seeking asylum, ruling the agency wrongly rejected his family-based…
Garcia Garcia v. Blanche
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9th Circuit partly sides with immigrant seeking asylum, ruling the agency wrongly rejected his family-based claim, but upholds denial of other claims.
Why it matters
The Ninth Circuit granted in part and denied in part a petition from Abel Ricardo Garcia Garcia, who sought asylum and other protections from removal. The court found that the Board of Immigration Appeals made an error when it rejected Garcia Garcia's claim that his family constitutes a protected social group, because the BIA relied on a legal standard that conflicts with Ninth Circuit precedent recognizing family as a classic protected group. However, the court upheld the agency's rejection of a second proposed group based on physical resemblance to a murdered brother, and also upheld the dismissal of his Convention Against Torture claim because he failed to properly raise it before the BIA.
Who it affects
This ruling directly affects Abel Ricardo Garcia Garcia and his immigration proceedings. More broadly, it reaffirms for immigration judges and the BIA that they must treat family-based social group claims consistent with Ninth Circuit precedent, which matters for other immigrants in the circuit who seek asylum based on family ties.
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Decision issued Jul 21, 2026
Unpublished opinion
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- Decision issued Jul 21, 2026Unpublished opinion
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Jul 21, 2026 · Unpublished opinion
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Abel Ricardo Garcia Garcia, a petitioner in immigration proceedings, asked the Ninth Circuit to review a Board of Immigration Appeals decision that upheld an Immigration Judge's denial of his applications for asylum, withholding of removal, and protection under the Convention Against Torture. He did not challenge the separate denial of his cancellation of removal claim on appeal. On the first issue, the court ruled in Garcia Garcia's favor regarding his claim that his family constitutes a 'particular social group,' which is a legal category that can qualify someone for asylum protection. The BIA had rejected this claim by relying on a federal agency decision called Matter of L-E-A-, finding his family lacked sufficient 'social distinction.' The Ninth Circuit said this was an error because its own prior rulings clearly recognize that 'family remains the quintessential particular social group,' and the BIA must follow circuit court precedent. Because the BIA did not go on to analyze other parts of the asylum and withholding claims after rejecting the family group, the court sent the case back to the BIA to redo that analysis properly. On the second issue, the court sided with the government. Garcia Garcia had proposed a second social group defined as people with a substantial physical likeness to a murdered brother whom police feared would seek retaliation. The court found that substantial evidence supported the agency's conclusion that Mexican society does not recognize people sharing those characteristics as a distinct group, and that the proposed group appeared to exist only because of the alleged persecution itself, which is not enough under the law. The record did not compel a different conclusion, so this part of the petition was denied. On the third issue, the court also sided with the government regarding the Convention Against Torture claim. The BIA had found Garcia Garcia waived this claim by not raising it in his appeal brief to the BIA. The Ninth Circuit agreed, explaining that immigration law requires a petitioner to first raise legal claims in administrative proceedings before a federal court can consider them. Because Garcia Garcia's BIA brief did not list the CAT claim as an issue and did not argue the Immigration Judge was wrong on that point, the claim was not properly exhausted and the court could not consider it. The practical result is that Garcia Garcia's case is sent back to the BIA only on the family-based asylum and withholding claims. The CAT claim and the physical-resemblance social group claim are finished at the federal appellate level. A temporary stay of removal remains in place until the court's mandate officially issues.
CITATION AND RECORD
Record source: CourtListener
NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 21 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ABEL RICARDO GARCIA GARCIA, No. 25-7464 Agency No. Petitioner, A209-145-611 v. MEMORANDUM* TODD BLANCHE, Acting Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted June 26, 2026 San Francisco, California Before: MURGUIA, Chief Judge, and KOH and H.A. THOMAS, Circuit Judges. Petitioner Abel Ricardo Garcia Garcia (“Petitioner”) seeks review of the Board of Immigration Appeals’ (“BIA”) decision dismissing Petitioner’s appeal of the Immigration Judge’s (“IJ”) denial of his application for asylum, withholding of removal, protection under the Convention Against Torture (“CAT”), and * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. cancellation of removal.1 We have jurisdiction under 8 U.S.C. § 1252. We grant- in-part and deny-in-part the petition. “Where, as here, the Board incorporates the IJ’s decision into its own without citing Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994), [we] will review the IJ’s decision to the extent incorporated.” Medina-Lara v. Holder, 771 F.3d 1106, 1111 (9th Cir. 2014). “We review purely legal questions de novo, and the agency’s factual findings for substantial evidence.” Perez-Portillo v. Garland, 56 F.4th 788, 792 (9th Cir. 2022). “The BIA’s conclusion regarding social distinction—whether there is evidence that a specific society recognizes a social group—is a question of fact that we review for substantial evidence.” Conde Quevedo v. Barr, 947 F.3d 1238, 1242 (9th Cir. 2020). Under the substantial evidence standard, “findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” Urias-Orellana v. Bondi, 607 U.S. 537, 544 (2026) (quoting Nasrallah v. Barr, 590 U.S. 573, 584 (2020)). 1. The BIA erred in concluding that Petitioner’s “family” particular social group (“PSG”) is not cognizable for lack of social distinction. We have explained that “[t]he BIA must . . . follow the decisions of our court, and we will not defer to BIA decisions that conflict with circuit precedent.” Melkonian v. Ashcroft, 320 F.3d 1 Petitioner does not challenge the denial of his cancellation of removal claim on appeal. 2 25-7464 1061, 1065 (9th Cir. 2003). Here, the BIA’s social distinction analysis hinged on Matter of L-E-A-, 27 I. & N. Dec. 581 (A.G. 2019), which conflicts with our precedent recognizing that “family remains the quintessential particular social group.” Rios v. Lynch, 807 F.3d 1123, 1128 (9th Cir. 2015). The BIA’s conclusion, which amounts to a blanket rejection of familial distinctiveness for most families, was therefore erroneous. Because the BIA did not reach Petitioner’s remaining arguments for his applications for asylum and withholding of removal, we remand to the BIA to perform the proper analysis of Petitioner’s proposed “family” PSG. 2. Substantial evidence supports the agency’s conclusion that Petitioner’s “substantial physical likeness to a murdered brother that the police feared retaliation if recognized” PSG is not cognizable for lack of social distinction. The “‘social distinction’ prong . . . ‘refers to social recognition’ and requires that a group ‘be perceived as a group by society.’” Id. at 1127 (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 240 (BIA 2014)). Here, Petitioner provides no evidence showing that Mexican society considers persons sharing those characteristics to be a group or that this proposed group “exist[s] independently of the fact of persecution.” Villegas Sanchez v. Garland, 990 F.3d 1173, 1180–81 (9th Cir. 2021) (quoting Matter of M- E-V-G-, 26 I. & N. Dec. at 236 n.11). The record does not compel the conclusion that the agency erred in rejecting Petitioner’s “substantial physical likeness to a 3 25-7464 murdered brother that the police feared retaliation if recognized” PSG and so we deny the petition as to this argument. 3. We deny the petition with respect to Petitioner’s CAT claim. The BIA determined that Petitioner waived this claim by failing to raise it before the BIA. “Exhaustion requires a non-constitutional legal claim to the court on appeal to have first been raised in the administrative proceedings below, and to have been sufficient to put the BIA on notice of what was being challenged.” Bare v. Barr, 975 F.3d 952, 960 (9th Cir. 2020) (citations omitted). Here, Petitioner’s brief to the BIA did not list the CAT claim as an issue on appeal and did not argue that the IJ erred in denying his CAT claim. Accordingly, Petitioner has failed to exhaust his CAT claim. See Umana-Escobar v. Garland, 69 F.4th 544, 550 (9th Cir. 2023). PETITION GRANTED in part, DENIED in part, and REMANDED for further proceedings. The parties shall bear their own costs.2 2 The temporary stay of removal (Dkt. No. 5) remains in place until the mandate issues. The Government’s motion to strike Petitioner’s untimely memorandum in support of the motion for stay of removal (Dkt. No. 14) is denied. 4 25-7464
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