FILED
UNITED STATES COURT OF APPEALS
NOV 07 2018
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
DEISY YAQUELIN ORDONEZ- No. 17-71840
GODOY; CALEB JOEL SAUCEDA-
ORDONEZ, Agency Nos. A206-843-750
A206-843-751
Petitioners,
v. ORDER WITHDRAWING
MEMORANDUM
JEFFERSON B. SESSIONS III, Attorney DISPOSITION, GRANTING
General, PETITION FOR REHEARING,
AND DENYING PETITION FOR
Respondent. REHEARING EN BANC
Before: ROGERS,* BYBEE, and WATFORD, Circuit Judges.
Judges Bybee and Watford voted to grant the petition for rehearing, and
Judge Rogers voted to deny the petition for rehearing. The memorandum
disposition filed on June 29, 2018 is withdrawn.
Judges Bybee and Watford voted to deny the petition for rehearing en banc,
and Judge Rogers recommended denying the petition for rehearing en banc. The
full court has been advised of the petition for rehearing en banc, and no judge has
requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.
*
The Honorable John M. Rogers, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
The petition for panel rehearing is GRANTED. The petition for rehearing
en banc is DENIED.
2
FILED
NOT FOR PUBLICATION
NOV 07 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEISY YAQUELIN ORDONEZ- No. 17-71840
GODOY; CALEB JOEL SAUCEDA-
ORDONEZ, Agency Nos. A206-843-750
A206-843-751
Petitioners,
v. MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 11, 2018
Pasadena, California
Before: ROGERS,** BYBEE, and WATFORD, Circuit Judges.
Deisy Ordonez–Godoy appeals the Board of Immigration Appeals’ (“BIA”)
denial of her petition for asylum, withholding of removal, and relief under the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable John M. Rogers, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
Convention Against Torture. “Where, as here, the BIA adopts the IJ’s decision
while adding some of its own reasoning, we review both decisions.”
Lopez–Cardona v. Holder, 662 F.3d 1110, 1111 (9th Cir. 2011). “We review
constitutional claims and questions of law de novo and review factual findings
under the deferential substantial evidence standard, treating them as ‘conclusive
unless any reasonable adjudicator would be compelled to conclude to the
contrary.’” Id. (quoting 8 U.S.C. § 1252(b)(4)(B)). The IJ found Ordonez–Godoy
credible, and thus we accept her statements as true.
To be eligible for asylum, Ordonez–Godoy must establish that she is unable
or unwilling to return to Honduras “because of persecution or a well-founded fear
of persecution on account of race, religion, nationality, membership in a particular
social group, or political opinion.” Mashiri v. Ashcroft, 383 F.3d 1112, 1119 (9th
Cir. 2004) (quoting 8 U.S.C. § 1101(a)(42)(A)). “[I]f an applicant establishes past
persecution, it triggers a rebuttable presumption of a well-founded fear of future
persecution.” Salazar–Paucar v. INS, 281 F.3d 1069, 1073–74 (9th Cir. 2002).
“We have repeatedly held that threats may be compelling evidence of past
persecution, particularly when they are specific and menacing and are accompanied
by evidence of violent confrontations [and] near confrontations.” Mashiri, 383
F.3d at 1119.
2
1. Ordonez–Godoy established past persecution based on her membership
through marriage in a politically active family. Ordonez–Godoy and her husband’s
family lived in a small town in Honduras controlled by the National Party. A
family organization, the Figueroas, backed the party through violence and
intimidation. The Figueroas began targeting Ordonez–Godoy’s family, who
opposed the National Party, in 2011 when her husband drove a man the Figueroas
had shot to the hospital. Over the next three years, until Ordonez–Godoy entered
the United States, Ordonez–Godoy’s husband and family received death threats by
phone and in person, which were specific, direct, and menacing, and accompanied
by violent and fatal attacks. Once, when Ordonez–Godoy’s husband and father
were running late for work, they drove past a vehicle resembling their family car,
which had been attacked, killing two people and injuring two others inside the car.
Shortly after this shooting, the Figueroas called and threatened Ordonez–Godoy’s
father-in-law, stating that the family “had gotten lucky” and “were still in danger of
death.” Ordonez–Godoy’s husband fled the country and entered the United States
in April 2012.
While Ordonez–Godoy remained in Honduras, four members of her
husband’s family were murdered and three others survived assassination attempts.
Her husband’s aunt was shot in the face while holding her baby in her lap and the
3
aunt’s partner was killed, but the kids in the home “were able to run under the beds
and hide.” Ordonez–Godoy’s husband’s uncle was shot while laying on a
hammock outside with his children, and Ordonez–Godoy and her in-laws heard the
shots from their home. The murders were coming “one after another.” The family
lived in fear, stayed at home, ceased working, and the police did nothing to address
the threats. Family members left the city, went into hiding, or fled the country.
Ordonez–Godoy entered the United States with her five-year-old son in July 2014.
The threats, attacks, and murders provide compelling evidence of past persecution.
See id. at 1121 (“Viewed cumulatively, . . . evidence of a death threat, violent
physical attacks against [the petioner’s] husband and sons, a near-confrontation
with a violent mob, vandalism, economic harm and emotional trauma compels a
finding of past persecution.”).
2. Having shown past persecution, Ordonez–Godoy is entitled to a
presumption of a well-founded fear of future persecution. Id. at 1119. An
applicant may establish a well-founded fear by showing a “pattern or practice” of
persecution of people she is “similarly situated” or “closely tied” to. Mgoian v.
I.N.S., 184 F.3d 1029, 1035–36 (9th Cir. 1999) (citations omitted). A family is a
“prototypical example” of a similarly situated group. Id. at 1036 (citations
omitted). “[W]e have explicitly held that an individual applicant may be eligible
4
for asylum, even in the absence of direct persecution against [the petitioner]
personally, if she is able to demonstrate a well-founded fear of persecution based
on acts of violence against her friends or family members.” Id. Ordonez–Godoy
has established a well-founded fear of future persecution.
The BIA held that Ordonez–Godoy could not show that “any harm suffered
by her or her relatives was on account of her family or a political opinion.” The
facts compel a contrary conclusion. The attacks against Ordonez–Godoy’s family
show a pattern of killing the members of her husband’s family who participated in
politics and those who supported them. Ordonez–Godoy is similarly situated to
her husband’s family; she lived with them and participated in the political
campaigns that got them killed. Although the Figueroas once told Ordonez–Godoy
that they had no particular interest in her specifically, that fact alone is not
dispositive—neither physical harm nor direct threats are required to find
persecution. Mashiri, 383 F.3d at 1120; Mgoain, 184 F.3d at 1037; see also Hoxha
v. Ashcroft, 319 F.3d 1179, 1183 (9th Cir. 2003) (“Because the record reveals that
the amount of persecution directed toward [the targeted group] generally is
extensive, the level of individualized risk [the petitioner] must show . . . is
comparatively low.”). As long as her husband’s family remains a target,
Ordonez–Godoy is in danger, even if she is collateral to the political feud.
5
In Mgoian v. I.N.S., the petitioner’s uncle was murdered, and two other
uncles and her parents fled the country in light of death threats. 184 F.3d at
1033–34. The BIA found the petitioner failed to “link” these events “in any
meaningful way to her fear of being persecuted.” Id. at 1033. On appeal, we
granted the petition for review, finding the petitioner showed “much more than
mere isolated violence” and provided “ample proof that the violence against her
family members [was] ‘closely tied’ to her.” Id. at 1036–37. The “violent acts
against other members of the group put her on notice that she may be next.” Id. at
1037. Like the petitioner in Mgoian, Ordonez–Godoy “fully demonstrated that
acts of violence occurred against her family members and that those acts are
sufficiently connected to her personally to justify a well-founded fear of
persecution in any person similarly situated.” Id. at 1036.1 Ordonez–Godoy
provided facts that would compel a reasonable fact finder to find she has a well-
founded fear of future persecution.
We grant Ordonez–Godoy’s petition for review, reverse the decision of the
BIA, and remand so the Attorney General may exercise his discretion to determine
whether to grant Ordonez–Godoy asylum. 8 U.S.C. § 1158(b)(1).
1
Because we find that Ordonez–Godoy established a claim of asylum, we do
not address her remaining claims.
6
PETITION GRANTED.
7
FILED
NOV 7 2018
Ordonez-Godoy v. Sessions, 17-71840 (CA9) MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
Judge Rogers, Circuit Judge, dissenting
The BIA’s denial of Ordonez-Godoy’s application for asylum should be
upheld. “In order to reverse the BIA, we must determine ‘that the evidence not only
supports [a contrary] conclusion, but compels it—and also compels the further
conclusion’ that the petitioner meets the requisite standard for obtaining relief,”
Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014) (alteration in original)
(quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992)), but here the record
does not compel reversal.
Substantial evidence supports the BIA’s conclusion that Ordonez-Godoy did
not suffer past persecution. Ordonez-Godoy was never physically harmed or directly
threatened by the Figueroas. Ordonez-Godoy credibly testified to threats against her
husband by the Figueroas, but she also testified that she was not on the Figueroas hit
list, and she did not testify that any threats were made against her specifically.
Moreover, she testified that during her only direct interaction with the Figueroas—
when an armed group of gang members came to her home shortly after her husband
fled Honduras—a gang member told her he was friends with her father and expressed
no interest in harming her. Ordonez-Godoy remained in the country for nearly two
years following the incident without harm.
Ordonez-Godoy v. Sessions, No. 17-71840; dissent
Absent a sufficient showing of past persecution, Ordonez-Godoy cannot
benefit from a presumption of a fear of future persecution, and substantial evidence
supports the BIA’s determination that Ordonez-Godoy did not establish a well-
founded fear of future persecution on account of a protected ground. First,
substantial evidence supports the BIA’s conclusion that Ordonez-Godoy is unlikely
to be persecuted based on her relationship with her husband’s politically active
family. During Ordonez-Godoy’s single direct encounter with the Figueroas they
expressed no desire to harm her even though they were aware that she was living
with her husband’s family; she lived in her husband’s family’s home for nearly two
more years without incident; and there is no evidence that anyone in Ordonez-
Godoy’s hometown has been specifically targeted because of his or her relationship
with the Sauceda-Velasquez family.
Substantial evidence also supports the BIA’s conclusion that Ordonez-Godoy
did not establish a well-founded fear of future persecution based on her political
opinion. It is true that the Figueroas have targeted her husband’s uncle and cousin,
who were political candidates for mayor, as well as her husband’s aunt and other
uncle, who served as campaign managers. But the record here does not compel the
finding that the Figueroas imputed these political beliefs to Ordonez-Godoy. Again,
Ordonez-Godoy has had a single interaction with the Figueroas and they expressed
no interest in harming her, despite knowing that she lived with her husband’s
~2~
Ordonez-Godoy v. Sessions, No. 17-71840; dissent
politically active family. She lived with her husband’s family without incident
throughout the mayoral campaign, and she lived in Honduras without harm for more
than a year after the assassination of her husband’s uncle. Her husband’s parents
have continued to live in Honduras since that time without harm, despite the
inclusion of her father-in-law on the Figueroas’ hit list.
The IJ and BIA looked at the record and decided that, although awful violence
had been visited upon members of Ordonez-Godoy’s family, Ordonez-Godoy
herself had not demonstrated that she was the target of such violence. Regardless of
whether or not we agree with that conclusion, there is substantial evidence to support
it, and reasonable factfinders would not be compelled to disagree with it.
Application of the deferential standard of review set forth by the Supreme Court and
this Circuit requires denial of the petition.
Given that Ordonez-Godoy’s asylum petition was properly denied, I address
briefly her remaining claims. First, because Ordonez-Godoy failed to establish
eligibility for asylum, she necessarily failed to satisfy the higher standard for
withholding of removal. Second, we do not have jurisdiction to consider the merits
of Ordonez-Godoy’s CAT claim because Ordonez-Godoy did not appeal the IJ’s
adverse CAT decision to the BIA, and so failed to exhaust her administrative
remedies with respect to that claim.
~3~
Ordonez-Godoy v. Sessions, No. 17-71840; dissent
Finally, Ordonez-Godoy was not denied due process. First, the transcript of
Ordonez-Godoy’s hearing does not support her assertion that the IJ demonstrated
actual bias or prejudgment. Second, Ordonez-Godoy’s claim that the IJ denied her
due process by denying her motion to consolidate was not adequately raised before
the BIA. Last, the BIA’s evidentiary rulings did not deny Ordonez-Godoy due
process.
The petition for review should be denied.
~4~