16-955
Martinez-Segova v. Sessions
BIA
Wright, IJ
A206 808 173/174
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.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 18th day of August, two thousand seventeen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 GERARD E. LYNCH,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12 MARIA MELIDA MARTINEZ-SEGOVA,
13 EMELY MARIAN SEGOVA-MARTINEZ,
14
15 Petitioners,
16
17 v. 16-955
18 NAC
19
20 JEFFERSON B. SESSIONS, III, UNITED
21 STATES ATTORNEY GENERAL,
22
23 Respondent.
24 _____________________________________
25
26 FOR PETITIONERS: Caitlin Miner-Le Grand, Jennifer H.
27 Kim, City Bar Justice Center, New
28 York, NY.
1
2 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
3 Assistant Attorney General; Julie M.
4 Iversen, Senior Litigation Counsel;
5 Robert Michael Stalzer, Trial
6 Attorney, Office of Immigration
7 Litigation, United States
8 Department of Justice, Washington,
9 DC.
10
11 UPON DUE CONSIDERATION of this petition for review of a
12 Board of Immigration Appeals (“BIA”) decision, it is hereby
13 ORDERED, ADJUDGED, AND DECREED that the petition for review is
14 GRANTED, the BIA’s decision is VACATED, and the case is REMANDED
15 for further proceedings consistent with this order.
16 Petitioners Maria Melida Martinez-Segova and Emely Marian
17 Segova-Martinez, natives and citizens of El Salvador, seek
18 review of a March 18, 2016, decision of the BIA, affirming an
19 October 5, 2015, decision of an Immigration Judge (“IJ”) denying
20 Martinez-Segova’s application for asylum, withholding of
21 removal, and relief under the Convention Against Torture
22 (“CAT”). In re Maria Melida Martinez-Segova, Emely Marian
23 Segova-Martinez, Nos. A206 808 173/174 (B.I.A. Mar. 18, 2016),
24 aff’g Nos. A206 808 173/174 (Immig. Ct. N.Y. City Oct. 5, 2015).
25 We assume the parties’ familiarity with the underlying facts
2
1 and procedural history in this case, to which we refer only as
2 necessary to explain our decision.
3 We, following the BIA, assume the credibility of the asylum
4 applicant and that the applicant suffered past harm rising to
5 the level of persecution on account of her membership in a
6 particular social group, and we review the IJ’s decision as
7 modified by the BIA. Xue Hong Yang v. U.S. Dep’t of Justice,
8 426 F.3d 520, 522 (2d Cir. 2005); see also 8 U.S.C.
9 § 1101(a)(42). Accordingly, we address only the ground the BIA
10 relied on: that Martinez-Segova failed to establish that the
11 Salvadoran government was unable or unwilling to protect her.
12 We conclude that the agency failed to sufficiently consider
13 the country conditions evidence in analyzing whether
14 Martinez-Segova demonstrated that the Salvadoran government
15 was unable or unwilling to protect her from her husband. The
16 BIA relied heavily on the fact that Martinez-Segova failed to
17 report her husband’s violation of the protective order to the
18 police. The agency’s decision in this regard was flawed.
19 Where, as here, “the IJ and BIA ignored ample record evidence
20 tending to show that” authorities are unwilling and unable to
21 protect against persecution, we need not decide “whether [a
3
1 petitioner’s] unwillingness to confront the police is fatal to
2 [her] asylum claim.” Pan v. Holder, 777 F.3d 540, 544-45 (2d
3 Cir. 2015); see also Aliyev v. Mukasey, 549 F.3d 111, 118 (2d
4 Cir. 2008) (declining to determine “precisely what a person must
5 show in order for the government to be deemed responsible for
6 the conduct of private actors” where petitioner “introduced
7 enough evidence to forge the link between private conduct and
8 public responsibility” (emphasis added)).
9 Although the agency does not have to parse each individual
10 piece of evidence, Zhi Yun Gao v. Mukasey, 508 F.3d 86, 87 (2d
11 Cir. 2007), there is no indication that the agency considered
12 the ample record evidence of the Salvadoran government’s
13 inability to combat domestic violence—a phenomenon that the
14 U.S. State Department deems one of El Salvador’s “principal
15 human rights problems” for which its efforts to ameliorate the
16 problem are “minimally effective.” A declaration from an human
17 rights attorney and expert on gender issues in El Salvador
18 reveals that orders of protection, while difficult to procure,
19 “do little to protect victims from further violence because
20 judges often draft them inadequately and law enforcement
21 officials neglect or refuse to enforce them” and “are little
4
1 more than pieces of paper affording no more protection than the
2 victims had prior to the legal process.” Where orders of
3 protection are issued, the onus is on the government to ensure
4 compliance; for example, judges are required to appoint an
5 independent team to monitor compliance with orders of
6 protection and that inadequate follow up “frequently renders
7 victims of domestic violence virtually helpless to enforce
8 their rights.” There is no indication that that judge did this
9 in Martinez-Segova’s case. Moreover, the order of protection
10 prohibited Martinez-Segova’s husband from “harassing,
11 stalking, [and] intimidating” her, but her husband nonetheless
12 violated the order with impunity by showing up to her place of
13 work, kissing and grabbing her and begging her to return.
14 Because the agency’s conclusion—that Martinez-Segova
15 failed to establish that the Salvadoran government was unable
16 or unwilling to protect her from her husband because she had
17 been able to obtain a protective order—is in tension with the
18 record evidence demonstrating that such orders are largely
19 ineffective, we grant the petition and remand for consideration
20 of this evidence. See Poradisova v. Gonzales, 420 F.3d 70, 77
21 (2d Cir. 2005) (“Despite our generally deferential review of
5
1 IJ and BIA opinions, we require a certain minimum level of
2 analysis from the IJ and BIA opinions denying asylum, and indeed
3 must require such if judicial review is to be meaningful.”).
4 Because remand is warranted for the agency to consider
5 whether Martinez-Segova established past persecution, we
6 decline to reach its humanitarian asylum ruling at this time.
7 See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general
8 rule courts and agencies are not required to make findings on
9 issues the decision of which is unnecessary to the results they
10 reach.”). Moreover, the BIA did not address the IJ’s
11 conclusion that the Government rebutted Martinez-Segova’s
12 well-founded fear of persecution, and that determination
13 generally precedes an analysis on whether humanitarian asylum
14 is warranted. See 8 C.F.R. § 1208.13(b)(1)(B)(iii)
15 (humanitarian asylum is generally considered “in the absence
16 of a well-founded fear of persecution”).
17 For the foregoing reasons, we GRANT the petition for
18 review, VACATE the BIA’s order, and REMAND the case to the BIA
19 for further proceedings consistent with this decision.
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
6