FILED
NOT FOR PUBLICATION
FEB 28 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIA HERNANDEZ-LOPEZ, AKA No. 19-70761
Juana Domingo Matias,
Agency No. A200-048-337
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 15, 2021**
Submission Vacated March 18, 2021
Resubmitted February 28, 2022
San Francisco, California
Before: MURGUIA, Chief Judge, CHRISTEN, Circuit Judge, and LEFKOW,***
District Judge.
*
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).
***
The Honorable Joan H. Lefkow, United States District Judge for the
Northern District of Illinois, sitting by designation.
Petitioner, a native and citizen of Guatemala, petitions for review of the
Board of Immigration Appeals’ (BIA) decision denying her applications for
withholding of removal and protection under the Convention Against Torture
(CAT). We have jurisdiction pursuant to 8 U.S.C. § 1252, and we grant in part and
deny in part the petition for review.
1. Petitioner argues the BIA’s decision affirming the immigration judge’s
(IJ) adverse credibility finding is not supported by substantial evidence. When
“assessing an adverse credibility finding under the [REAL ID] Act, we must look
to the ‘totality of circumstances[] and all relevant factors.’” Alam v. Garland, 11
F.4th 1133, 1137 (9th Cir. 2021) (en banc) (alteration in original) (quoting 8
U.S.C. § 1158(b)(1)(B)(iii)). When applying this standard, “[t]here is no bright-
line rule under which some number of inconsistencies requires sustaining or
rejecting an adverse credibility determination.” Id.
The BIA affirmed the IJ’s adverse credibility finding because (1) petitioner
did not claim she feared returning to Guatemala during prior interactions with
immigration officials; and (2) there were certain inconsistencies between
petitioner’s testimony and her declaration. Regarding the second reason, petitioner
testified that a man named David Gonzalez beat and raped her in a hotel room in
2002 and that she returned to the hotel where Gonzalez raped her on a weekly basis
2
for several months. In her declaration, petitioner described a single instance of
rape in 2002 after which she did not see Gonzalez for “about a year.” When the IJ
asked petitioner to clarify what she meant, petitioner said that Gonzalez raped her
at a hotel in 2002, then raped her on a weekly basis, and then “[a]fter I was with
him, he left, and I didn’t see him again.” The IJ then immediately moved on to a
new subject.
The difference between petitioner’s declaration and testimony may not have
been trivial because it may amount to the difference between her suffering a
pattern of rape over either several months or a single instance. See Zamanov v.
Holder, 649 F.3d 969, 973 (9th Cir. 2011) (“[I]nconsistencies regarding events that
form the basis of the asylum claim are sufficient to support an adverse credibility
determination.”). But it appears the IJ and petitioner miscommunicated. An IJ
“cannot base an adverse credibility determination on a contradiction that the
[petitioner] could reconcile if given a chance to do so.” Rizk v. Holder, 629 F.3d
1083, 1088 (9th Cir. 2011), abrogated on other grounds by Alam, 11 F.4th at
1135–37; see also Perez-Arceo v. Lynch, 821 F.3d 1178, 1185 (9th Cir. 2016)
(“The IJ should not have placed significant weight on this apparent discrepancy
absent development of the testimony to clarify whether the statements were truly
inconsistent.”). Based on our read of the transcript, it appears that, “if given a
3
chance to do so,” Rizk, 629 F.3d at 1088, petitioner may have been able to explain
whether, “[a]fter I was with him, he left,” referred to a single incident of rape or the
last in a series of rapes. Accordingly, we conclude substantial evidence does not
support the agency’s adverse credibility finding. We do not grant the petition on
the adverse credibility ground alone because in an alternative ruling, the BIA
assumed petitioner was credible and concluded her withholding of removal and
CAT claims failed on other grounds.
2. When assessing petitioner’s withholding of removal claim, the BIA
rejected petitioner’s proposed particular social group, finding it did not involve
“the limited circumstances where an applicant may be eligible for withholding of
removal based on private violence” and “suffer[ed] from the same circularity
problem articulated . . . in Matter of A-B-.” First, the BIA erred by relying on the
now-vacated Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018) (“A-B- I”). Attorney
General Garland vacated in their entireties A-B- I and the subsequent decision in
Matter of A-B-, 28 I. & N. Dec. 199 (A.G. 2021) (“A-B- II”), and instructed the
BIA to “no longer follow A-B- I or A-B- II when adjudicating pending or future
cases.” Matter of A-B-, 28 I. & N. Dec. 307, 309 (A.G. 2021) (“A-B- III”)
(ordering the agency to consider particular social groups based on “pre-A-B- I
precedent”).
4
Second, the BIA concluded the proposed group lacked particularity because
members “would possess a myriad of ages, backgrounds, political opinions,
nationalities, ethnicities, and races.” But “we have rejected the notion that a
persecuted group may simply represent too large a portion of a population to allow
its members to qualify for asylum.” Perdomo v. Holder, 611 F.3d 662, 669 (9th
Cir. 2010). The BIA also concluded petitioner’s proposed group lacked social
distinction, but it failed to consider “society-specific evidence,” Pirir-Boc v.
Holder, 750 F.3d 1077, 1084 (9th Cir. 2014); see also Henriquez-Rivas v. Holder,
707 F.3d 1081, 1092 (9th Cir. 2013) (en banc) (explaining that laws targeted at a
particular class of individuals may be “evidence that a society recognizes [the]
particular class of individuals as uniquely vulnerable”). For these reasons, we
conclude the BIA committed legal error in its rejection of petitioner’s proposed
particular social group.
The BIA also concluded petitioner failed to establish that the Guatemalan
government would be unwilling and unable to protect her because “the country
conditions evidence shows that the Guatemalan government has taken steps to
combat violence against women.” The BIA erred because it focused on the
government’s efforts to combat domestic violence in the county, “but it did not
examine the efficacy of those efforts.” Madrigal v. Holder, 716 F.3d 499, 506 (9th
5
Cir. 2013) (emphasis added); cf. Bringas-Rodriguez v. Sessions, 850 F.3d 1051,
1072 (9th Cir. 2017) (en banc) (“[I]t is well recognized that a country’s laws are
not always reflective of actual country conditions.”).
Last, the BIA concluded petitioner’s withholding of removal claim failed
because she “did not carry her burden of establishing that it would not be
reasonable for her to relocate.” An applicant for withholding of removal generally
bears the burden of proof, 8 C.F.R. § 1208.16(b), but the burden shifts to the
government to prove the applicant could relocate to avoid a future threat on her life
or freedom if the applicant establishes past persecution, id. § 1208.16(b)(1)(ii);
Gonzalez-Medina v. Holder, 641 F.3d 333, 338 (9th Cir. 2011) (recognizing
burden remained with petitioner to show unreasonableness of relocation because
domestic abuse that occurred in United States did not constitute past persecution).
Because the BIA did not make an express finding that petitioner failed to establish
past persecution and because we remand for the BIA to consider other elements of
petitioner’s withholding claim, the BIA should also consider relocation according
to the appropriate burden-shifting framework. If petitioner establishes past
persecution, the burden will shift to the government to prove petitioner could
safely relocate within Guatemala. See 8 C.F.R. § 1208.16(b)(1)(ii).
6
Mindful that “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), we grant the petition with respect to petitioner’s
withholding of removal claim and remand for consideration in light of A-B- III.
3. As for relief pursuant to CAT, the petitioner generally bears the burden of
proof, 8 C.F.R. § 1208.16(c)(2), but proof that relocation is possible or impossible
is not the burden of either party, see Maldonado v. Lynch, 786 F.3d 1155, 1164
(9th Cir. 2015) (en banc). We uphold the BIA’s factual findings unless the
evidence in the record “compel[s] a different conclusion.” Zheng v. Holder, 644
F.3d 829, 835 (9th Cir. 2011). “[T]he BIA must consider all evidence, including
‘[e]vidence that the applicant could relocate to a part of the country of removal
where he or she is not likely to be tortured.’” Dawson v. Garland, 998 F.3d 876,
884 (9th Cir. 2021) (alteration in original) (quoting 8 C.F.R. § 1208.16(c)(3)(ii)).
The BIA affirmed the IJ’s denial of relief pursuant to CAT, in part, because “the IJ
properly considered [petitioner’s] ability to avoid torture by relocating within
Guatemala” as one factor in its CAT analysis and concluded petitioner could
reasonably relocate. A credible claim of rape can support protection pursuant to
CAT, see Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1079 (9th Cir. 2015), but
we conclude the record as a whole does not compel a contrary conclusion about
7
petitioner’s ability to relocate, cf. Maldonado, 786 F.3d at 1164. Accordingly, we
deny the petition for review as to petitioner’s CAT claim and remand her
withholding of removal claim.
PETITION FOR REVIEW GRANTED IN PART AND DENIED IN
PART.
8