NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 8 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JANDY DAMARI PADILLA ORTIZ, No. 19-70488
Petitioner, Agency No. A215-546-975
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 9, 2021**
Pasadena, California
Before: W. FLETCHER, WATFORD, and HURWITZ, Circuit Judges.
Jandy Damari Padilla Ortiz, a native and citizen of Honduras, petitions for
review of a decision of the Board of Immigration Appeals (“BIA”) dismissing her
appeal from an order of an Immigration Judge (“IJ”) denying asylum, withholding
of removal, and Convention Against Torture (“CAT”) protection. We grant the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
petition for review in part and deny it in part.
1. Padilla testified to years of physical and sexual abuse at her stepfather’s
hands beginning when she was seven years old. She did not report the incidents to
the police because she felt they would not help her, a belief informed by her sister’s
and a neighbor’s fruitless attempts to report abuse they suffered from others. She
also testified that she could not relocate within Honduras because her stepfather
threatened to find and kill her, and that Honduras is unsafe for women. Padilla
proposed three social groups: (1) Honduran women; (2) dependent children of
women unable to leave domestic relationships; and (3) her stepfather’s immediate
family. The IJ determined that Padilla had suffered persecution but denied relief.
The IJ found the first proposed social group, “Honduran women,” overbroad and
therefore not cognizable. As to the second group, “children of women unable to
leave domestic relationships,” the IJ assumed cognizability, but held that Padilla
could not prove membership, noting that Padilla’s mother was able to leave prior
relationships. And, as to the third group, the IJ found a lack of nexus between the
persecution and Padilla’s membership in the group, stating that the abuse she
suffered was “due to [her stepfather] being a violent person, not because [he] was
somehow inflicting harm on members of [Padilla’s] family in order to change some
immutable characteristics of that group.”
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2. In dismissing Padilla’s appeal, the BIA stated that the IJ correctly found a
lack of nexus between Padilla’s proposed social groups and any persecution. But
the IJ’s nexus finding cited by the BIA applied only to the third proposed social
group. Lack of nexus is a factual finding, see Baghdasaryan v. Holder, 592 F.3d
1018, 1023 (9th Cir. 2010), and as to the other two of the proposed social groups,
the BIA purported to uphold nexus findings the IJ never made with respect to those
groups. Because the BIA may not “substitute its own view of the facts” for those of
the IJ, Ridore v. Holder, 696 F.3d 907, 919 (9th Cir. 2012), we grant the petition for
review as to the asylum and withholding claims and remand for further proceedings.1
3. The BIA also erred in several other respects with respect to the asylum and
withholding claims.
First, the BIA faulted Padilla for failing to report her abuse. We have
recognized, however, that children are “unlikely to report” such abuse. Bringas-
Rodriguez v. Sessions, 850 F.3d 1051, 1069–72 (9th Cir. 2017) (en banc). Although
Padilla was a young adult when she sought asylum, she was a child when she
1
Despite pretermitting the issue of social group cognizability, the BIA noted
that the IJ’s decision found some support in Matter of A-B-, 27 I. & N. Dec. 316
(A.G. 2018) (“A-B- I”), which held that domestic violence perpetrated by
nongovernmental actors generally will not qualify an applicant for asylum or
withholding. See also Matter of A-B-, 28 I. & N. Dec. 199 (A.G. 2021) (“A-B- II”).
In June 2021, the Attorney General vacated A-B- I and A-B- II. Matter of A-B-, 28
I. & N. Dec. 307 (A.G. 2021) (“A-B- III”). The agency should address cognizability
under the current standards on remand.
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experienced the abuse. See id. at 1055, 1071.
Second, the BIA faulted Padilla for determining it would be futile to report
the abuse based on stories told to her by someone else. But Bringas-Rodriguez
credited similar “hearsay” stories about the futility of reporting by a child victim
where they were “sufficiently specific to be deemed credible.” Id. at 1074 n.17.
Here, Padilla testified about two stories of futile reports—one from her sister and
one from a neighbor. The IJ found Padilla credible, and the BIA did not upset that
finding.
Third, the BIA improperly relied on a 2017 State Department report showing
that the Honduran government “had taken steps” to address domestic violence. The
BIA did not consider Padilla’s status as a child sexual abuse victim, relying instead
on a report discussing domestic violence generally. Because children are unlikely
to report abuse, “it is similarly unlikely that country reports or other evidence will
be able to document the police response, or lack thereof, to the sexual abuse of
children.” Id. at 1071. Indeed, Padilla presented expert testimony and documentary
evidence to corroborate her claims and explained her reasons for not reporting. See
Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1056–57 (9th Cir. 2006).
4. The BIA’s denial of humanitarian asylum rested on the same errors. An
applicant may receive humanitarian asylum if she shows “(1) compelling reasons for
being unwilling or unable to return . . . arising out of the severity of the past
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persecution, or (2) a reasonable possibility that he or she may suffer other serious
harm upon removal.” Belishta v. Ashcroft, 378 F.3d 1078, 1081 (9th Cir. 2004)
(quoting 8 C.F.R. § 1208.13(b)(1)(iii)). Here, the BIA found humanitarian asylum
“inapplicable” based on the flawed nexus determination.
5. However, substantial evidence supports the denial of CAT relief. For CAT
purposes, “[a]cquiescence of a public official requires that the public official, prior
to the activity constituting torture, have awareness of such activity and thereafter
breach his or her legal responsibility to intervene to prevent such activity.” Ornelas-
Chavez, 458 F.3d at 1059 (quoting 8 C.F.R. § 208.18(a)(7)). Padilla never claimed
any public actor was aware of her mistreatment. Nor did she establish that it is more
likely than not that she would be tortured with the consent or acquiescence of the
government in the future upon removal.
PETITION FOR REVIEW GRANTED IN PART AND DENIED IN
PART; REMANDED. THE PARTIES SHALL BEAR THEIR OWN COSTS.
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