18-657
Castro-Perez v. Wilkinson
BIA
Wright, IJ
A 205 642 201
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY
CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 25th day of January, two thousand twenty-one.
PRESENT:
JOHN M. WALKER, JR.,
ROBERT A. KATZMANN,
MICHAEL H. PARK,
Circuit Judges.
_____________________________________
FRANCIS ELIZABETH CASTRO-PEREZ,
Petitioner,
v. No. 18-657
MONTY WILKINSON, Acting United States
Attorney General,
Respondent. 1
_____________________________________
For Petitioner: REBECCA R. PRESS, Central American Legal
Assistance, Brooklyn, NY.
For Respondent: SARAH K. PERGOLIZZI, Trial Attorney, Office of
Immigration Litigation (Holly M. Smith, Senior
Litigation Counsel, Office of Immigration
1
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Attorney General Monty Wilkinson
is automatically substituted for former Acting Attorney General Jeffrey A. Rosen as Respondent.
Litigation, on the brief), for Jeffrey Bossert Clark,
Acting Assistant Attorney General, U.S.
Department of Justice, Washington, DC.
For Amicus Curiae Harvard Immigration
and Refugee Clinical Program: L. Rachel Lerman, Barnes & Thornburg LLP, Los
Angeles, CA; Todd G. Vare, Barnes & Thornburg
LLP, Indianapolis, IN.
UPON DUE CONSIDERATION of this petition for review of a Board of Immigration
Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the
petition for review is GRANTED.
Petitioner Francis Elizabeth Castro-Perez, a native and citizen of Honduras, seeks review
of a decision of the BIA affirming a decision of an Immigration Judge (“IJ”) denying her
application for asylum, withholding of removal, and relief under the Convention Against Torture
(“CAT”). See In re Francis Elizabeth Castro-Perez, No. A 205 642 201 (B.I.A. Feb. 14, 2018),
aff’g No. A 205 642 201 (Immig. Ct. N.Y. City Feb. 24, 2017). We assume the parties’
familiarity with the underlying facts, the procedural history, and the issues on appeal.
Under the circumstances of this case, we review the IJ’s decision as modified by the BIA,
i.e., minus the denial of asylum as untimely that the BIA did not reach. See Xue Hong Yang v.
U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The applicable standards of review are
well established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d
Cir. 2009).
“To establish eligibility for asylum [and withholding of removal], an applicant must show
that . . . she is a refugee who has suffered past persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion, or has a well-founded fear of
persecution on one of these grounds.” Aliyev v. Mukasey, 549 F.3d 111, 116 (2d Cir. 2008). 2 A
2
Unless otherwise indicated, in quoting cases, all internal quotation marks, alterations,
emphases, footnotes, and citations are omitted.
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“refugee” is “any person who is outside any country of [her] nationality . . . and who is unable or
unwilling to return to, and is unable or unwilling to avail . . . herself of the protection of, that
country because of persecution or a well-founded fear of persecution on account of” a protected
ground. 8 U.S.C. § 1101(a)(42).
Here, the agency found that Castro-Perez’s past harm at the hands of her former partner
rose to the level of persecution and that the harm was on account of a protected ground.
Accordingly, the only issue before us is whether the agency erred in holding that Castro-Perez
failed to demonstrate that Honduran authorities were unable or unwilling to protect her. See 8
U.S.C. § 1158(b)(1)(B)(i) (burden on applicant to prove refugee status).
Persecution can be at the hands of the government of the country to which the alien is
returnable or “at the hands of an organization or person from which the government cannot or will
not protect the alien.” Matter of McMullen, 17 I. & N. Dec. 542, 545 (B.I.A. 1980). “Private
acts can . . . constitute persecution if the government is unable or unwilling to control such actions.”
Pan v. Holder, 777 F.3d 540, 543–44 (2d Cir. 2015). To meet this unwilling-or-unable standard,
“an applicant seeking to establish persecution based on the violent conduct of a private actor must
show that the government [1] condoned the private actions or [2] at least demonstrated a complete
helplessness to protect the victims.” Scarlett v. Barr, 957 F.3d 316, 331 (2d Cir. 2020).
We grant the petition for review and remand for the agency to reexamine whether Castro-
Perez has demonstrated that the Honduran government was unable or unwilling to protect her from
her abusive former partner. In concluding that Castro-Perez failed to meet her burden, the agency
relied on, inter alia, its finding that the Honduran police had accepted her three complaints and
issued a protective order in response to the first complaint. As further support for its conclusion,
the agency also found that “[w]hen [Castro-Perez’s] former partner continued to harass her, the
police issued a capture order for his arrest” for violating the terms of the protective order.
Certified Admin. Record 4. However, the record evidence does not support the agency’s finding
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that a capture order was issued; rather, the evidence shows that Castro-Perez visited the police
station three times to have the police issue such an order but did not receive assistance. Because
this significant error concerned a dispositive issue—i.e., whether the Honduran government had
already issued a capture order or was ignoring Castro-Perez’s request for one—we cannot be
confident that substantial evidence supports the agency’s decision, and we grant the petition so
that the agency can exclude this erroneous finding and reexamine whether Castro-Perez has made
the required showing that the Honduran government was unable or unwilling to protect her. 3
Because remand is warranted for the agency to consider whether Castro-Perez established
past persecution (harm that the government could not control), we do not reach her CAT claim as
it may be affected by the agency’s further consideration consistent with the above and the
Honduran government’s ability to control her abuser. See Scarlett, 957 F.3d at 336 (remanding,
in part, for agency to consider how inability to protect “might translate to identifying government
acquiescence in torture under the CAT”); see also INS v. Bagamasbad, 429 U.S. 24, 25 (1976)
(“As a general rule courts and agencies are not required to make findings on issues the decision of
which is unnecessary to the results they reach.”).
For the foregoing reasons, the petition for review is GRANTED, the BIA’s decision is
VACATED, and the case is REMANDED for further proceedings consistent with this order. All
pending motions and applications are DENIED as moot and stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
3
The government failed to address this error in its papers, and at oral argument questioned
whether there was an error at all before conceding that it may warrant further consideration by the
agency.
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