Reyna Calmo-Aguilar v. Merrick Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 9 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
REYNA FELVIRA CALMO-AGUILAR, No. 20-71398
Petitioner, Agency No. A209-400-308
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued April 15, 2022
Submission Withdrawn April 19, 2022
Resubmitted February 9, 2023
Pasadena, California
Before: SMITH,** BADE, and LEE, Circuit Judges.
Reyna Felvira Calmo-Aguilar, a lesbian woman and native and citizen of
Guatemala, petitions for review of the order of the Board of Immigration Appeals
(BIA) dismissing her appeal from a decision of the Immigration Judge (IJ) denying
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable D. Brooks Smith, United States Circuit Judge for the
U.S. Court of Appeals for the Third Circuit, sitting by designation.
her application for asylum, withholding of removal, and protection under the
Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252.
“We review the denial of asylum, withholding of removal and CAT claims for
substantial evidence.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir.
2019). “Under this standard, we must uphold the agency determination unless the
evidence compels a contrary conclusion.” Id. We grant the petition and remand
for further proceedings.
1. “To demonstrate entitlement to asylum or withholding of removal on
the basis of past persecution,” Doe v. Holder, 736 F.3d 871, 877 (9th Cir. 2013), an
applicant has the burden of establishing “(1) an incident, or incidents, that rise to
the level of persecution; (2) that is on account of one of the statutorily-protected
grounds; and (3) is committed by the government or forces the government is
either unable or unwilling to control,” id. at 877–78 (quoting Afriyie v. Holder, 613
F.3d 924, 931 (9th Cir. 2010)). Here, the record compels the conclusion that
Guatemalan authorities would be unable or unwilling to control Calmo-Aguilar’s
persecutors.
Our decision is controlled by Bringas-Rodriguez v. Sessions, 850 F.3d 1051,
1073–74 (9th Cir. 2017) (en banc), where we held that the petitioner was not
required to report the abuse he suffered as a child on account of his sexual
orientation because doing so would have been futile and dangerous. We also held
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that the evidence compelled the conclusion that the government was unable or
unwilling to control the petitioner’s persecutors. Id. at 1073–75.
Calmo-Aguilar put forward similar evidence. She testified about a woman
whose experience suggested the police would not protect women, let alone
homosexual women, from sexual assault.1 Calmo-Aguilar also feared that she
would be raped or killed if returned to her native country; indeed, she experienced
community-wide harassment, including death threats and sexual assault, as a
young teen when others learned of her sexual orientation. She did not go to the
police out of fear that they would not protect her and “would do something to
[her],” which she based on her knowledge of the other woman’s experience,
Guatemala’s intolerance of homosexuality, and the absence of laws protecting
homosexuals—the latter two of which were not present in Bringas-Rodriguez. Id.
at 1075 (noting “increasing social acceptance of homosexuals” in Mexico and that
same-sex marriage had been legalized in some areas). Finally, Calmo-Aguilar
1
The woman whose experience Calmo-Aguilar testified about was
heterosexual, whereas the friends in Bringas-Rodriguez were homosexual.
However, as Calmo-Aguilar notes, if police were unwilling to protect a
heterosexual woman from mistreatment, they may have been even less inclined to
protect a homosexual woman, given the general attitude of the community toward
homosexual individuals. Cf. Bringas-Rodriguez, 850 F.3d at 1070 (stating that it
would be an erroneous assumption that “where government authorities are able and
willing to protect heterosexual children, they will be equally able and willing to
protect children who exhibit a different sexual orientation or are ‘different’ in other
ways”).
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offered country conditions evidence comparable to that of Bringas-Rodriguez.
Therefore, in light of Bringas-Rodriguez, the record compels the conclusion that
Calmo-Aguilar need not have reported her assaults and that Guatemalan authorities
would be unable or unwilling to control her persecutors.
2. The BIA denied Calmo-Aguilar’s CAT claim on the ground that she
failed to show that the Guatemalan government would torture her or acquiesce in
any torture committed by third parties. See Madrigal v. Holder, 716 F.3d 499, 508
(9th Cir. 2013) (a CAT applicant must show “that a public official would inflict,
instigate, consent to or acquiesce in” torture). Because this aspect of the CAT
claim relies on the same evidence that underlies the analysis of whether Calmo-
Aguilar would suffer persecution committed by the government or forces the
government is either unable or unwilling to control, we also grant the petition as to
this claim. See, e.g., Bringas-Rodriguez, 850 F.3d at 1076 (remanding “for
consideration of [petitioner’s] withholding of removal and CAT claims” after
determining petitioner suffered past persecution).
PETITION FOR REVIEW GRANTED; REMANDED.
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