Opinion
19-72816
10-04-2022
ORLANDA PINEDA CERDAS; et al., Petitioners, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Argued and Submitted September 19, 2022 San Francisco, California
On Petition for Review of an Order of the Board of Immigration Appeals Agency Nos. A202-098-134 A202-098-173 A202-098-135 A202-098-153
Before: GRABER, FRIEDLAND, and KOH, Circuit Judges.
MEMORANDUM
Petitioners Orlanda Pineda Cerdas ("Orlanda") and her three children seek review of the Board of Immigration Appeals' ("BIA") dismissal of their appeal from an immigration judge's ("IJ") denial of asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). We grant the petition and remand to the BIA for reconsideration.
1. The government concedes that remand is necessary because the BIA made significant errors, but the parties disagree as to the scope of that remand. In general, we may remand to the BIA with instructions to grant relief only if the record compels a conclusion contrary to that of the BIA. See INS v. Orlando Ventura, 537 U.S. 12, 16 (2002) (per curiam) ("[T]he proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation." (citation and internal quotation marks omitted)); Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1188 (9th Cir. 2020) (granting the petition and ordering "remand for the agency to grant deferral of removal pursuant to CAT because the record compels the conclusion that Petitioner will more likely than not be tortured if she is removed to Mexico"). Except for the specific issues discussed below, where that standard is met, we remand Petitioners' applications to the BIA for reconsideration under the correct legal standards.
2. On remand, the BIA will be considering Petitioners' applications for the third time. At oral argument, the government stated that it was not seeking to reopen the record for the introduction of new evidence. In light of that binding representation, we instruct the BIA to consider the applications on the current record. See Amberhill Props. v. City of Berkeley, 814 F.2d 1340, 1341 (9th Cir. 1987) (binding party to concessions made at oral argument).
3. Substantial evidence does not support the IJ's adverse credibility finding with respect to Petitioner Maria Vargas Pineda ("Maria"). The sole reason the IJ gave for discrediting Maria's testimony-that she did not attempt to connect the rape to her status as her father's daughter until the hearing-is contradicted by the record. We instruct the BIA to conduct its analysis while crediting Maria's testimony fully. See Soto-Olarte v. Holder, 555 F.3d 1089, 1094-95 (9th Cir. 2009) (discussing the applicability of the deemed-credible rule to similar circumstances).
4. The government concedes, and we agree, that the BIA analyzed the question whether public officials would be unwilling or unable to protect Petitioners under the wrong legal standard. In Bringas-Rodriguez v. Sessions, 850 F.3d 1051 (9th Cir. 2017) (en banc), we highlighted that, when the petitioner is a minor, "children who suffer sexual abuse are generally unlikely to report that abuse to authorities" and that this factor should not weigh against their asylum claims. Id. at 1071-72. Nevertheless, the analysis of both the IJ and the BIA improperly viewed Maria's failure to report the rape to the authorities as weighing against Petitioners' claims.
Furthermore, the record compels the conclusion that government officials would be unable or unwilling to control the members of Los Cornudos. We instruct the BIA to reconsider Petitioners' claims with this element decided in their favor.
5. Additionally, Maria's application satisfies the first element of a past persecution claim because the record compels the conclusion that her treatment rose to the level of persecution. See Lopez-Galarza v. INS, 99 F.3d 954, 962-63 (9th Cir. 1996) (holding that rape is a form of persecution). The IJ also noted that, assuming a positive credibility determination, "the Court would easily be able to find that she suffered harm that rose to the level of persecution." But, on remand, the cognizability of Maria's claimed particular social group remains to be decided by the agency in the first instance.
6. The IJ erred by failing to consider whether Orlanda has a well-founded fear of future persecution because of her children's experiences. Violence against a petitioner's family does not compel a finding of past persecution, but it can contribute to a well-founded fear of future persecution. Mgoian v. INS, 184 F.3d 1029, 1036 (9th Cir. 1999). On remand, we instruct the BIA to conduct its analysis considering the possibility that Orlanda has a well-founded fear of future persecution because of the treatment of her children, combined with her personal experiences.
7. When analyzing the possibility of internal relocation, the BIA incorrectly concluded that Petitioners were not entitled to a presumption of country-wide persecution because they do not claim to have been persecuted by state actors. As the government concedes, the BIA ignored the text of the regulation in effect at the time Petitioners applied for asylum. Under the relevant regulation, applicants are entitled to a presumption that internal relocation is unreasonable "[i]n cases in which the persecutor is a government or is government-sponsored, or the applicant has established persecution in the past." 8 C.F.R. § 1208.13(b)(3)(ii) (2014) (emphasis added). We remand to the BIA to consider whether internal relocation is reasonable, using the correct evidentiary standard. See Lopez v. Ashcroft, 366 F.3d 799, 806-07 (2004) (holding that remand for reconsideration ordinarily is appropriate to give the BIA the opportunity to evaluate the evidence under the correct legal standard).
8. The government concedes, and we agree, that the BIA erred by not considering that public corruption can contribute to a grant of CAT relief when the potential future torture is likely to be committed by private actors. On remand, we instruct the BIA to conduct its analysis of Petitioners' CAT claims considering whether the record supports a finding that public officials would acquiesce in, or be willfully blind to, acts of torture committed by Los Cornudos.
Petition GRANTED and REMANDED with instructions.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.