Debora Moncada Castro v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 13 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEBORA LETICIA MONCADA CASTRO, No. 18-71763
Petitioner, Agency No. A094-293-187
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 11, 2022**
Pasadena, California
Before: WATFORD and FRIEDLAND, Circuit Judges, and HELLERSTEIN, ***
District Judge.
Debora Leticia Moncada Castro, a native and citizen of Honduras, petitions
for review of an order of the Board of Immigration Appeals (BIA) dismissing her
*
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 Alvin K. Hellerstein, United States District Judge for
the Southern District of New York, sitting by designation.
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appeal from the decision of an Immigration Judge (IJ) pretermitting her application
for cancellation of removal and denying her applications for asylum, withholding
of removal, and protection under the Convention Against Torture (CAT). We
grant the petition as to Moncada Castro’s claims for asylum and withholding of
removal and deny the petition as to the remainder of her claims.
1. Moncada Castro claims she is eligible for asylum and withholding of
removal based on her membership in a particular social group (PSG) consisting of
“individuals who were attacked and then provided assistance or support to the
police in order to charge an individual with a crime.” She contends that her
proposed PSG is similar to the group considered by this court in Henriquez-Rivas
v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc), which held that the BIA
misapplied its own precedent in rejecting a proposed PSG of “people testifying
against or otherwise oppos[ing] gang members.” Id. at 1086, 1091 (alteration in
original). The IJ found that Moncada Castro’s proposed PSG was not cognizable
because it lacked both particularity and social distinction. By way of analysis, the
IJ stated only that Moncada Castro’s situation does not “rise[] to the level of
Henriquez-Rivas v. Holder . . . in that she did not testify in Court.” The BIA
agreed with the IJ that the proposed PSG was neither particular nor socially distinct
without conducting its own analysis of the facts or mentioning Henriquez-Rivas.
When “the BIA’s analysis on the relevant issues is confined to a simple
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statement of a conclusion,” we will look to the IJ’s decision “as a guide to what lay
behind the BIA’s conclusion.” Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir.
2010) (citations and internal quotation marks omitted). Here, the IJ erred in
concluding that Henriquez-Rivas did not apply simply because Moncada Castro
did not testify in court. Moncada Castro reported a crime to the police and did not
do so privately or anonymously. Indeed, the record shows that her alleged
persecutors knew she had gone to the police since they threatened to harm her if
she did not drop the charges. Cf. Conde Quevedo v. Barr, 947 F.3d 1238, 1241,
1243 (9th Cir. 2020) (distinguishing Henriquez-Rivas when the petitioner “did not
know whether the people who attacked him knew that he and his father had
reported the attacks to the police”). Thus, in this case, reporting her assault to the
police was a public act akin to the in-court testimony in Henriquez-Rivas.
Because the agency relied on this improper distinction, it failed to perform
“the required evidence-based inquiry” into whether the proposed PSG is
cognizable. Pirir-Boc v. Holder, 750 F.3d 1077, 1084 (9th Cir. 2014); see also
Diaz-Reynoso v. Barr, 968 F.3d 1070, 1088 (9th Cir. 2020) (remanding “[b]ecause
the BIA avoided the case-specific [PSG] inquiry demanded by . . . the BIA’s
precedents”). With respect to social distinction, the agency did not address the
record evidence showing that Honduras has a witness protection program, and, as
we observed in Henriquez-Rivas, “[i]t is difficult to imagine better evidence that a
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society recognizes a particular class of individuals as uniquely vulnerable” to
violent criminal elements. 707 F.3d at 1092. As to particularity, the agency did
not consider whether membership in Moncada Castro’s proposed PSG could be
verified and delimited through police records documenting victims of violent
crimes, just as court records could show which individuals had testified against
gangs in Henriquez-Rivas. See id. at 1093. Accordingly, we grant Moncada
Castro’s petition as to her claims for asylum and withholding of removal and
remand to the BIA to perform the required analysis of her proposed PSG.
We do not consider three other issues raised by Moncada Castro—the
timeliness of her asylum petition, whether her experience qualifies as past
persecution, and her fear of future persecution—because they were not addressed
by the BIA. First, while the IJ found that Moncada Castro’s asylum petition was
untimely, the BIA did not rely on this ground in rejecting her claim. Second, the
BIA did not consider whether Moncada Castro had suffered past persecution on
account of her claimed membership in her proposed PSG. Third, if Moncada
Castro establishes past persecution, the government will be required to rebut a
presumption of future persecution. 8 C.F.R. § 1208.13(b)(1). Because the BIA did
not reach the issue of past persecution, its conclusion that Moncada Castro “did not
establish an objective likelihood that she will be harmed in the future” was not a
determination that the government could overcome this presumption.
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2. The BIA’s conclusion that Moncada Castro is not entitled to CAT
protection is supported by substantial evidence. The threats Moncada Castro
experienced occurred over 23 years before the BIA’s decision, and she produced
no evidence other than her own speculative testimony to show that her alleged
persecutors would still seek to harm her. Thus, the evidence does not compel the
conclusion that it is more likely than not Moncada Castro will be tortured if
returned to Honduras. See 8 C.F.R. § 1208.16(c)(2).
3. The BIA correctly concluded that Moncada Castro is ineligible for
cancellation of removal because her convictions for forgery and petty theft both
qualify as convictions for crimes involving moral turpitude. See 8 U.S.C.
§§ 1229b(b)(1)(C), 1182(a)(2)(A)(ii) (providing a petty offense exception for non-
citizens with only one conviction for a crime involving moral turpitude). Forgery
under California Penal Code section 470(d) requires a showing of “intent to
defraud” and therefore qualifies as a crime involving moral turpitude. Tall v.
Mukasey, 517 F.3d 1115, 1119 (9th Cir. 2008). Petty theft under California Penal
Code section 488 is also a crime involving moral turpitude because it requires a
specific intent to deprive the victim of his or her property permanently. Castillo-
Cruz v. Holder, 581 F.3d 1154, 1160 (9th Cir. 2009) (citing People v. Guerra, 708
P.2d 1252, 1256 (Cal. 1985)).
Moncada Castro contends that the BIA erred by retroactively applying
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Matter of Diaz-Lizarraga, 26 I. & N. Dec. 847 (BIA 2016), and Matter of Obeya,
26 I. & N. Dec. 856 (BIA 2016), but this argument fails. These decisions held for
the first time that theft offenses may qualify as crimes involving moral turpitude
even if they require only an intent to accomplish a temporary deprivation. See
Obeya, 26 I. & N. Dec. at 859. It was already well-established at the time of
Moncada Castro’s 1996 petty theft conviction that offenses requiring an intent to
accomplish a permanent deprivation, like California Penal Code section 488,
qualify as crimes involving moral turpitude. See Matter of Grazley, 14 I. & N.
Dec. 330, 333 (BIA 1973).
PETITION FOR REVIEW GRANTED in part and DENIED in part;
CASE REMANDED.
The parties shall bear their own costs on appeal.