Antolin Lorenzo-Lopez v. Matthew Whitaker ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 4 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTOLIN LORENZO-LOPEZ, No. 15-71324
Petitioner, Agency No. A200-567-154
v.
MEMORANDUM*
MATTHEW G. WHITAKER, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 13, 2018
Pasadena, California
Before: PAEZ, PARKER,** and CLIFTON, Circuit Judges.
Antolin Lorenzo-Lopez petitions for review of the Board of Immigration
Appeals’ (“BIA”) decision denying her asylum, withholding of removal, and
Convention Against Torture (“CAT”) claims. We have jurisdiction under 8 U.S.C.
§ 1252.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Barrington D. Parker, United States Circuit Judge for
the U.S. Court of Appeals for the Second Circuit, sitting by designation.
1. An asylum application must be filed within one year of a noncitizen’s last
arrival in the U.S. 8 U.S.C. § 1158(a)(2)(B). An exception allows consideration of
a late-filed application if the noncitizen demonstrates “extraordinary circumstances
relating to the delay in filing an application.” Id. at § 1158(a)(2)(D). The
application still must be filed “within a reasonable period given those
circumstances.” 8 C.F.R. § 208.4(a)(5). This court treats six months as the
“default” for a reasonable length of delay. Wakkary v. Holder, 558 F.3d 1049,
1058-59 (9th Cir. 2009) (quoting Husyev v. Mukasey, 528 F.3d 1172, 1182 n.4 (9th
Cir. 2008)).
Lorenzo-Lopez filed her asylum application approximately five years after
her last arrival and two years after her removal proceedings began. Lorenzo-Lopez
argues two grounds for a finding of extraordinary circumstances: (1) her mental
health; and (2) reliance on statements by Border Patrol that she could not apply for
asylum. Even if extraordinary circumstances existed, she failed to file the
application within a reasonable period. See Tamang v. Holder, 598 F.3d 1083,
1091 (9th Cir. 2010). We therefore deny Lorenzo-Lopez’s petition for review of
her asylum claim.
2. In contrast, the one-year filing deadline does not apply to withholding of
removal or CAT relief.
In rejecting Lorenzo-Lopez’s claims for withholding of removal and CAT
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relief, the BIA found “no error in the Immigration Judge’s conclusion that the
respondent did not establish that the Mexican government is unwilling or unable to
protect her from violence or that a pattern or practice of persecution exists against
transgendered persons” or “that it is more likely than not she will be tortured by or
with the acquiescence of a government official.” However, in rejecting these
claims, the BIA did not have the benefit of our decision in Avendano-Hernandez v.
Lynch, 800 F.3d 1072 (9th Cir. 2015). There, we recognized the serious conditions
threatening transgender persons in Mexico and held that a transgender Mexican
woman was entitled to CAT relief. Id. at 1082 (noting “police specifically target
the transgender community for extortion and sexual favors, and [] Mexico suffers
from an epidemic of unsolved violent crimes against transgender persons”).
Given the similarities in the record evidence, we grant the petition for review
of the withholding of removal and CAT claims and remand for further
consideration in light of Avendano-Hernandez. Although there is a lack of
evidence of past persecution or torture in this case, that is not dispositive of
Lorenzo-Lopez’s claims for withholding of removal or CAT relief. For example, a
noncitizen can establish eligibility for withholding of removal through an
independent showing of a clear probability of future persecution based on a
systematic “pattern or practice” of persecution against the group to which she
belongs in her home country. 8 C.F.R. § 208.16(b)(2)(i); Wakkary, 558 F.3d at
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1060. Yet, neither the Immigration Judge nor the BIA discussed the record
evidence submitted in this case concerning the conditions faced by transgender
persons in Mexico. The question for the agency on remand is whether this record
evidence, either alone or in combination with evidence of Lorenzo-Lopez’s past
experiences, is sufficient to establish that it is more likely than not that she will be
persecuted or tortured upon return. See Wakkary, 558 F.3d at 1067.
On remand, Lorenzo-Lopez may seek leave to update the evidence of
country conditions.
PETITION FOR REVIEW GRANTED IN PART, DENIED IN PART,
AND REMANDED.
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