FILED
NOT FOR PUBLICATION MAY 24 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ALMA PATRICIA MARTINEZ GODOY, No. 07-72999
Petitioner, Agency No. A072-009-704
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 11, 2011
San Francisco, California
Before: B. FLETCHER and THOMAS, Circuit Judges, and ROSENTHAL,
District Judge.**
Petitioner Alma Patricia Martinez Godoy (“Martinez”), a native and citizen
of Guatemala, petitions for review of the Board of Immigration Appeals (BIA)’s
decision adopting and affirming an immigration judge (IJ)’s denial of her
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Lee H. Rosenthal, District Judge for the U.S. District
Court for Southern Texas, Houston, sitting by designation.
application for asylum, withholding of removal, and protection under the
Convention Against Torture (CAT). We review the agency’s legal conclusions de
novo, see Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008); factual findings
for substantial evidence, see 8 U.S.C. § 1252(b)(4)(B); and the discretionary
decision to deny asylum to an eligible petitioner for an abuse of that discretion, see
Kalubi v. Ashcroft, 364 F.3d 1134, 1137 (9th Cir. 2004). We grant the petition and
remand for further proceedings.
1. The BIA erred in holding that because Martinez herself was not
physically harmed by her putative persecutors, she did not suffer past persecution.
Under our circuit’s well-established precedent, death threats, when combined with
other factors present here (including the murders of family members and physical
confrontations with persecutors), may constitute persecution. See, e.g.,
Smolniakova v. Gonzales, 422 F.3d 1037, 1048–49 (9th Cir. 2005); Khup v.
Ashcroft, 376 F.3d 898, 904 (9th Cir. 2004); Ruano v. Ashcroft, 301 F.3d 1155,
1160–61 (9th Cir. 2002); Lim v. INS, 224 F.3d 929, 936 (9th Cir. 2000)
(“[M]enacing death threats can constitute a primary part of a past persecution
claim, particularly where those threats are combined with confrontation or other
mistreatment.”). The BIA erred in holding to the contrary.
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Given that Martinez established past persecution, she is entitled to a
presumption that her fear of future persecution is well-founded. See 8 C.F.R.
§ 208.13(b)(1). Because the BIA held that Martinez did not suffer past
persecution, it did not give her the benefit of this presumption, and has yet to
consider whether the Government has rebutted this presumption. See id.
§ 208.13(b)(1)(i)–(ii). We therefore remand to the BIA for it to consider this
question in the first instance. See INS v. Ventura, 537 U.S. 12, 16 (2002) (per
curiam).
2. The agency also abused its discretion in holding that, even if Martinez
were eligible for asylum, it would deny her claim as a matter of discretion based on
her admittedly false testimony regarding ancillary matters. Under Matter of Pula,
19 I. & N. Dec. 467, 474–76 (BIA 1987), superceded by statute in part as
recognized in Andriasian v. INS, 180 F.3d 1033, 1043–44 & n.7 (9th Cir. 1999),
the BIA is required to weigh at least nine factors in deciding whether to deny
asylum as a matter of discretion. Here, however, the IJ considered only a single
factor: Martinez’s false testimony. “We have repeatedly held that in an exercise of
discretion related to an application for asylum, all relevant favorable and adverse
factors must be considered and weighed.” Gulla v. Gonzales, 498 F.3d 911, 916
(9th Cir. 2007) (quotation marks and citation omitted). The agency’s failure to do
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so here was an abuse of discretion. We therefore remand for it to reconsider its
discretionary denial of asylum in light of all of the Pula factors, including the
presumption that Martinez would be persecuted if returned to Guatemala. See
Kalubi, 364 F.3d at 1141 (“There is no question that ‘[i]n determining whether to
grant asylum as a discretionary matter, the likelihood of future persecution is a
particularly important factor to consider.’” (citation omitted)). On remand, the
BIA must “state its reasons and show proper consideration of all factors when
weighing equities and denying relief” and “explain what factors it has considered
or relied upon sufficiently that we are able to discern that it has heard, considered,
and decided.” Id. at 1140–41 (quotation marks and citations omitted).
PETITION GRANTED; REMANDED.
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