NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARVIN GEOVANI ZUNIGA JOHNSON, 

AKA Jose Pardo, AKA Marvin Zuniga, 

AKA Marvin G. Zuniga, AKA Marvin 

Geovani Zuniga, 

Petitioner, 

 v. 

WILLIAM P. BARR, Attorney General, 

Respondent.

No. 19-72382 

Agency No. A094-297-137 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted November 20, 2020**

Pasadena, California

Before: PAEZ and OWENS, Circuit Judges, and ENGLAND,*** District Judge.

Petitioner Marvin Zuniga Johnson, a native and citizen of Honduras,

* 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).

*** The Honorable Morrison C. England, Jr., United States District Judge 

for the Eastern District of California, sitting by designation.

FILED

DEC 4 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

petitions for review of a decision by the Board of Immigration Appeals (“BIA”),

which denied his withholding of removal claims and found him ineligible for 

withholding of removal due to a conviction for a particularly serious crime. We 

have jurisdiction under 8 U.S.C. § 1252. “We review the [BIA’s] legal 

conclusions de novo and its factual findings for substantial evidence.” BringasRodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc) (citations 

omitted). We grant the petition for review and remand for further proceedings.

1. The BIA misapplied the legal standard when it failed to discuss 

dangerousness or provide a rationale for its determination that Zuniga Johnson’s 

conviction under Cal. Penal Code § 261.5(c) was a particularly serious crime. 

“Whether the BIA applied the proper legal standard in determining whether [a 

petitioner’s] crime was ‘particularly serious’ raises a question of law.” BlandinoMedina v. Holder, 712 F.3d 1338, 1342–43 (9th Cir. 2013). 

“An alien is ineligible for withholding of removal if ‘the alien, having been 

convicted by a final judgment of a particularly serious crime is a danger to the 

community of the United States.’” Avendano-Hernandez v. Lynch, 800 F.3d 1072, 

1077 (9th Cir. 2015) (quoting 8 U.S.C. § 1231(b)(3)(B)(ii)).1 When assessing 

1 Aggravated felonies resulting in a sentence of at least five years imprisonment are 

per se particularly serious crimes. 8 U.S.C. § 1231(b)(3)(B)(iv). Because a 

conviction under § 261.5(c) is not an aggravated felony, Esquivel-Quintana v. 

Sessions, 137 S. Ct. 1562, 1568 (2017), and Zuniga Johnson was sentenced to one 

year of imprisonment, his conviction is not a per se particularly serious crime. 
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whether a conviction is for a particularly serious crime, the BIA uses the 

multifactor test from Matter of Frentescu, 18 I. & N. Dec. 244 (BIA 1982). 

Although dangerousness is no longer analyzed as a separate factor, Anaya-Ortiz v. 

Holder, 594 F.3d 673, 679 (9th Cir. 2010), the other factors must “justify the 

presumption that the convicted immigrant is a danger to the community.” Delgado

v. Holder, 648 F.3d 1095, 1107 (9th Cir. 2011) (en banc). 

The BIA discussed the Frentescu factors, but never mentioned 

dangerousness nor explained how the other factors justified a presumption that 

Zuniga Johnson presented a danger to the community. Therefore, we grant the 

petition for review and remand to the BIA to address whether “the nature of the 

conviction, the circumstances and underlying facts of the conviction, [and] the type 

of sentence imposed” justify a presumption of dangerousness. Id. at 1107 (quoting 

Matter of Frentescu, 18 I. & N. Dec. at 247); see also Alphonsus v. Holder, 705 

F.3d 1031, 1045 (9th Cir. 2013) (explaining that the BIA must “adequately 

elucidate[e] [a] rationale for applying the particularly serious crime bar”), 

abrogated on other grounds by Guerrero v. Whitaker, 908 F.3d 541 (9th Cir. 

2018).

2. As to the BIA’s alternative ruling, it failed to consider evidence in the 

record that directly contradicts part of its rationale for denying withholding of 

removal based on an imputed political opinion or particular social group.
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“[M]isstating the record and failing to mention highly probative or potentially 

dispositive evidence” indicates that the BIA failed to consider evidence. Cole v. 

Holder, 659 F.3d 762, 771–72 (9th Cir. 2011). “[W]here potentially dispositive 

testimony and documentary evidence is submitted, the BIA must give reasoned 

consideration to that evidence.” Id. at 772; see also Vitug v. Holder, 723 F.3d 

1056, 1064 (9th Cir. 2013) (“[T]he BIA abuses its discretion where it ignores 

arguments or evidence.”). 

The BIA misstated the record when it repeated the IJ’s findings that there 

have been no threats “against [Zuniga Johnson] or his family in particular,” and 

that “none of this violence was inflicted on [his] immediate family members, such 

as his parents or sisters.” The record, however, contains a declaration from Zuniga 

Johnson’s mother, explaining that she was raped and received a death threat due to 

her political activity in Honduras.

The BIA’s failure to discuss this “highly probative” evidence limits our 

ability to review whether substantial evidence supports the BIA’s denial of

withholding of removal based on an imputed political opinion or particular social 

group. We therefore grant the petition for review and remand to the BIA to 

address in the first instance the weight and impact of Zuniga Johnson’s mother’s 

declaration.

PETITION FOR REVIEW GRANTED AND REMANDED.