FILED
NOT FOR PUBLICATION
OCT 30 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIA LORENA GAMEZ LOPEZ, No. 18-71019
Petitioner, Agency No. A209-135-626
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 21, 2020
San Francisco, California
Before: HAWKINS, N.R. SMITH, and R. NELSON, Circuit Judges.
Maria Gamez Lopez, a native and citizen of Honduras, petitions for review
of the decision by the Board of Immigration Appeals (“BIA”) dismissing the
appeal of the immigration judge’s (“IJ”) denial of her applications for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”).
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition in part, grant
the petition in part, and remand.
1. Substantial evidence supports the BIA’s conclusion that Gamez Lopez did
not establish past persecution, because she failed to establish membership in her
proposed social groups (“Honduran women unable to leave a domestic
relationship” or “Honduran women viewed as property by virtue of their status in a
domestic relationship”) during any of the instances of harm. See Ayala v. Holder,
640 F.3d 1095, 1097 (9th Cir. 2011) (per curiam).
A. The BIA reasonably concluded that, as a kidnapping victim, Gamez
Lopez was not in a “domestic relationship” with her kidnapper (Santos Jovanni
Martinez Lopez (“Santos”)) during the three months she was held hostage, but
rather was a “victim of a heinous criminal act.” See Zehatye v. Gonzales, 453 F.3d
1182, 1189 (9th Cir. 2006) (noting that if evidence is “susceptible to more than one
rational interpretation,” this court “may not substitute [its] judgment for that of the
IJ”).
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B. The BIA reasonably concluded that Gamez Lopez failed to establish
that she was unable to leave the domestic relationship.1 First, following Gamez
Lopez’s escape from Santos, she was able to physically escape and live separately
for twelve years without any in person contact with Santos. During this time,
Gamez Lopez also entered into two significant relationships (each of which
resulted in a child). Second, while Gamez Lopez was living with Santos’s mother,
Gamez Lopez was able to leave Santos, with the help of a pastor, after he became
physically abusive. Gamez Lopez did not have any additional physical contact
with Santos following this incident. Although Gamez Lopez would have us
interpret the evidence differently, the evidence does not compel an interpretation
contrary to that of the BIA.2 See id.
2. The BIA’s conclusion that Gamez Lopez did not have a well-founded fear of
persecution, because she could relocate to avoid persecution is not supported by
substantial evidence. Neither the IJ nor the BIA addressed whether Gamez Lopez
1
The BIA did not specifically mention either of Gamez Lopez’s social
groups in its discussion. Rather, the BIA focused on whether she was able to leave
her domestic relationship for both groups. Although the social group “Honduran
women viewed as property by virtue of their status in a domestic relationship” does
not include an inability to leave, it is an implicit factor in the proposed group.
2
Because substantial evidence supports the BIA’s conclusion that Gamez
Lopez did not establish past persecution, we need not address Gamez Lopez’s
claim for humanitarian asylum. See 8 C.F.R. § 1208.13(b)(1)(iii).
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had established a well-founded fear of future persecution.3 See Duran-Rodriguez
v. Barr, 918 F.3d 1025, 1029 (9th Cir. 2019) (explaining that a “well-founded fear
of future persecution” must be established “by showing both a subjective fear of
future persecution, as well as an objectively ‘reasonable possibility’ of
persecution”) (quoting Recinos De Leon v. Gonzales, 400 F.3d 1185, 1190 (9th
Cir. 2005)). Instead, the BIA concluded that Gamez Lopez did not have a well-
founded fear of persecution, because she could relocate within Honduras as
evidenced by her twelve years of living apart from Santos without experiencing
“harm other than threatening phone calls.” However, this conclusion improperly
discounts the nature of the threatening phone calls. See Lim v. INS, 224 F.3d 929,
936 (9th Cir. 2000) (“Our court generally treats unfulfilled threats, without more,
as within that category of conduct indicative of a danger of future persecution,
rather than as past persecution itself.”); see also Kaiser v. Ashcroft, 390 F.3d 653,
659-60 (9th Cir. 2004) (explaining that life-threatening phone calls supported
conclusion that petitioner could not safely relocate). Gamez Lopez credibly
3
The BIA also did not conclude whether Gamez Lopez would face future
persecution on account of a protected ground, including membership in her
proposed social group. Thus, we are limited to reviewing whether Gamez Lopez
could relocate to avoid persecution. See Navas v. INS, 217 F.3d 646, 658 n.16 (9th
Cir. 2000) (explaining that the court “cannot affirm the BIA on a ground upon
which it did not rely”).
4
testified that Santos (1) stalked her, tracking her location and phone numbers, and
(2) threatened her with violence, including death numerous times from 2002
through 2015.4 Thus, “the BIA should [have] focus[ed] on the types of threats
about which [Gamez Lopez] testifie[d]” and “determin[ed] whether [Santos] has
the will or ability to carry out [the] threat[s].” Rodriguez-Rivera v. U.S. Dep’t of
Immigration & Naturalization, 848 F.2d 998, 1005 (9th Cir. 1988). Accordingly,
we remand this case to the BIA to reassess Gamez Lopez’s fear of future
persecution.
3. Substantial evidence supports the BIA’s conclusion that Gamez Lopez failed
to establish a clear probability of torture “at the instigation of or with the consent
or acquiescence of a public official or other person acting in an official capacity.”
8 C.F.R. § 1208.18(a)(1); see also Cole v. Holder, 659 F.3d 762, 771 (9th Cir.
2011). The record does not suggest that the BIA failed to consider all the
evidence. See Lopez v. Ashcroft, 366 F.3d 799, 807 n.6 (9th Cir. 2004). To the
contrary, the BIA (citing to the IJ’s decision) recognized that there was civil unrest
in Honduras but highlighted that the Honduran police were responsive to Gamez
Lopez’s and her mother’s complaints even though they were unsuccessful in their
4
Santos also claimed to have killed the father of one of her children, and he
threatened to kill other members of her family.
5
investigations. See Andrade-Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 2016).
Thus, the BIA reasonably concluded that it was unlikely that Gamez Lopez would
be tortured in Honduras, and she has not pointed to any evidence that would
compel a conclusion contrary to the BIA. See Go v. Holder, 640 F.3d 1047, 1053
(9th Cir. 2011).
Parties shall bear their own costs on appeal.
PETITION FOR REVIEW DENIED in part; GRANTED in part and
REMANDED.
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