FILED
NOT FOR PUBLICATION
DEC 12 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
REYNA ISABEL ALVARADO- No. 15-71138
GARCIA,
Agency No. A205-757-355
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 16, 2016
San Francisco, California
Before: SCHROEDER, WARDLAW, and OWENS, Circuit Judges.
Reyna Isabel Alvarado-Garcia (“Alvarado”), a native and citizen of
Honduras, petitions for review of the Board of Immigration Appeals’s (“BIA”)
decision affirming the Immigration Judge’s (“IJ”) denial of Alvarado’s petition for
withholding of removal and protection under the Convention Against Torture
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
(“CAT”). Where the BIA does not conduct de novo review of the IJ’s decision but
instead reviews for “clear error,” we evaluate “the reasons explicitly identified by
the BIA, and then examine the reasoning articulated in the IJ’s oral decision in
support of those reasons.” Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008).
We have jurisdiction pursuant to 8 U.S.C. § 1252. We grant the petition in part
and remand to the BIA for further proceedings consistent with this disposition.
1. Because the BIA did not determine whether Honduran women unable
to leave abusive relationships comprise a “particular social group,” see 8 U.S.C.
§ 1231(b)(3)(A), we remand to the BIA to address that question in the first
instance. “[U]nder the ordinary remand rule, the agency should be given an
opportunity in the first instance to make legal determinations entrusted to it by
Congress.” Perdomo v. Holder, 611 F.3d 662, 669 (9th Cir. 2010) (noting that the
rule is “particularly applicable” to the question of the existence of a “particular
social group”). Here, the BIA concluded only that the IJ’s finding that Alvarado
“had managed to leave the relationship” was not “clearly erroneous.” The IJ, in
turn, determined that Alvarado had not “established that she is a member of any
particular social group as a result of her prior relationship” without first assessing
whether Alvarado’s proposed social group was legally cognizable. Both the IJ and
the BIA thus assumed without deciding that Alvarado’s proposed group of
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Honduran women unable to leave abusive relationships was legally cognizable.
We therefore remand to the agency, on an open record limited to this question, for
it to make that determination expressly.
Remand is necessary because, if Honduran women unable to leave abusive
relationships constitute a particular social group, the record compels the conclusion
that Alvarado was persecuted by Jiminson Torres on account of her membership in
that group and the Honduran government was unable or unwilling to protect
Alvarado from persecution. See Doe v. Holder, 736 F.3d 871, 877–78 (9th Cir.
2013). Although the IJ found that Alvarado was able to “leave” her relationship
because, inter alia, she left Torres’s home and resisted his initial attempts to
reconcile, substantial record evidence compels the conclusion that Torres
continued to abuse and control Alvarado: He beat her violently when he
discovered that she had reported his abuse to the police; he followed her “every
time [she] came back from work” trying to convince her to reconcile; and, when
persuasion failed, he and his gang threatened Alvarado that if she would not follow
their “laws” by returning to the relationship, they would force her to leave town.
The record thus compels the conclusion that Alvarado is just as bound by Torres as
she was when they lived in the same home and has been unable to “leave” her
relationship, and the IJ clearly erred by finding to the contrary.
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In addition, substantial evidence does not support the agency’s conclusion
that the Honduran “authorities appear to have taken some actions to protect the
applicant” and that the government was therefore willing and able to protect
Alvarado. See id. The only evidence purportedly suggesting the government’s
willingness and ability to assist Alvarado was that when Alvarado reported
Torres’s abuse, the local police gave her a summons to deliver to Torres. Yet the
record overwhelmingly shows that the government was not responsive to
Alvarado’s requests for protection: The local police required Alvarado to hand the
summons to her abuser, notifying him of her police report and subjecting her to
further abuse; there were no apparent repercussions for Torres’s failure to appear in
response to the summons; the police later told Alvarado that she would be required
to file a second and a third report before they would investigate because “women
usually withdrew the request and would go back together with their husbands”; and
there is nothing in the record to suggest that the police did anything to investigate
Alvarado’s report. See Afriyie v. Holder, 613 F.3d 924, 931–32 (9th Cir. 2010).
Thus substantial evidence compels the conclusion that the police were aware of
Torres’s abuse of Alvarado and were either unwilling or unable to intervene to
protect her.
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2. Substantial evidence supports the BIA’s conclusion that Alvarado is
ineligible for CAT relief because it is not more likely than not that she would be
tortured upon removal to Honduras. See Maldonado v. Lynch, 786 F.3d 1155,
1162 (9th Cir. 2015). The record does not compel the conclusion that the past
abuse Alvarado suffered rises to the level of torture or that Alvarado would more
likely than not suffer torture at the hands of Torres’s gang or another gang if she
returned to Honduras.
GRANTED in part, DENIED in part, and REMANDED.
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