Carla Davila v. William Barr ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARLA PATRICIA DAVILA, No. 17-72173
Petitioner,
Agency No.
v. A208-122-961
WILLIAM P. BARR, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted January 21, 2020
San Francisco, California
Filed August 7, 2020
Before: William A. Fletcher and Ryan D. Nelson, Circuit
Judges, and Donald W. Molloy,* District Judge.
Opinion by Judge W. Fletcher
*
The Honorable Donald W. Molloy, United States District Judge for
the District of Montana, sitting by designation.
2 DAVILA V. BARR
SUMMARY**
Immigration
Granting Carla Patricia Davila’s petition for review of the
Board of Immigration Appeals’ decision affirming the denial
of her applications for asylum, withholding of removal, and
protection under the Convention Against Torture, and
remanding, the panel held that substantial evidence did not
support the Board’s determination that Davila failed to
establish that the Nicaraguan government was unable or
unwilling to protect her from persecution by her domestic
partner, or that a public official acting under the color of law
had acquiesced to her torture.
Davila reported her partner’s abuse to police, who took no
action after her partner paid the officers a bribe. The panel
held that substantial evidence did not support the Board’s
determination that Davila failed to establish that the
Nicaraguan government was unwilling or unable to protect
her from persecution. The panel concluded that the Board
erred by requiring Davila to report her abuse again, without
considering her reasons for failing to do so, and by faulting
her for failing to report the officers’ acceptance of the bribe.
The panel also concluded that the Board erred by selectively
considering country conditions evidence indicating that the
Nicaraguan government was making positive strides in
combating domestic violence and rape, while failing to take
into account other evidence regarding the government’s
failure to enforce, or lack of effective enforcement of, laws
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
DAVILA V. BARR 3
criminalizing rape and domestic violence. The panel
observed that the Board did not address whether Davila
belonged to a cognizable particular social group, was
persecuted on account of her membership in that social group,
or had a well-founded fear of future persecution. The panel
therefore remanded for the Board to consider those issues in
the first instance.
For similar reasons, the panel also held that substantial
evidence did not support the Board’s determination that
Davila failed to establish sufficient state action, or
government consent or acquiescence, in any torture. The
panel remanded for the Board to consider in the first instance
whether Davila’s abuse rose to the level of torture, and
whether it is more likely than not that she would be tortured
upon removal to Nicaragua.
COUNSEL
Luther M. Snavely (argued) and Reza Athari, Reza Athari &
Associates, Las Vegas, Nevada, for Petitioner.
Michael C. Heyse (argued), Trial Attorney; Mary Jane
Candaux, Assistant Director; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.
4 DAVILA V. BARR
OPINION
W. FLETCHER, Circuit Judge:
Carla Patricia Davila petitions for review of a Board of
Immigration Appeals (“BIA”) order affirming the denial of
her application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). Davila
claims that she suffered frequent and severe abuse at the
hands of Ronald Alfredo Cevilla, her domestic partner in
Nicaragua. When Davila telephoned to Nicaraguan police to
ask for protection from Cevilla’s abuse, police officers
arrived at the house, took a bribe from Cevilla, and left
without speaking to her. The BIA agreed with the
Immigration Judge (“IJ”) that Davila had not shown that the
Nicaraguan government was unable or unwilling to protect
her from persecution, or that a public official acting under the
color of law had acquiesced to her torture. It did not reach
the question of whether Davila had been persecuted on
account of her membership in a cognizable particular social
group, or whether Davila’s abuse amounted to torture.
The BIA’s conclusions were not supported by substantial
evidence. We therefore grant the petition and remand to
allow the BIA to address for the first time the questions it did
not reach.
I. Background
A. Davila’s Testimony
The IJ found credible Davila’s removal hearing
testimony—a finding that the BIA accepted without
qualification. We therefore accept the following facts from
DAVILA V. BARR 5
her testimony as true. See Ming Dai v. Sessions, 884 F.3d
858, 870 (9th Cir. 2018) (“[W]e are required to treat a
petitioner’s testimony as credible when the agency does not
make an adverse credibility finding . . . .”).
Davila is a native and citizen of Nicaragua. In 2006, she
entered into a relationship with Cevilla, who manages several
hotels owned by his father. After a few months, Davila and
her son from a previous relationship, Yadher, moved into
Cevilla’s house.
Approximately a year into their relationship, Cevilla
began abusing Davila. In February 2007, Cevilla returned
home late one evening. He was drunk and pounded on the
door. Davila, who had been asleep, believed he had his keys
and did not immediately get up. When Davila eventually
answered the door, Cevilla accused her of hiding another man
in the house. He pulled her hair, hit her in the face, threw her
to the ground, and beat her in the stomach. Davila protested
that she had not done anything wrong. After neighbors,
hearing Davila’s screams, knocked on the door, Cevilla
stopped the abuse and went to bed. The next day, he
apologized.
The beating left Davila with stomach pain. In March
2007, Davila went with her mother to the doctor, who
informed her that she had been pregnant. The doctor told her
that the blows to her stomach had led to the death of her two-
month-old fetus, and that she urgently needed an operation
due to infection. The doctor removed her dead fetus and
performed a hysterectomy. A day after the surgery, Cevilla
visited Davila, “supposedly . . . very worried.”
6 DAVILA V. BARR
A month later, the abuse resumed. Cevilla, drunk again,
slapped Davila in the face, hit her stomach, and threw her
down, saying it was her fault she had lost the baby. The
beatings became more regular, escalating to about twice a
month. Cevilla began raping her. Cevilla threatened that if
Davila left him, he would harm her son.
During one night of abuse, a next-door neighbor yelled to
Davila, instructing her to call the police or else Cevilla would
kill her. Davila called the police several times but got no
answer. She continued to call, and eventually someone
answered and sent two officers. Davila watched as Cevilla
went out to meet them, talked with them, and gave them
money in the form of bills. The officers left without speaking
to Davila. After that, “[i]t was worse,” Davila testified.
Cevilla taunted Davila, handing her the phone and saying
“‘go ahead, call the police, call them.’” Davila testified: “He
knew that he paid the police off and he knew that . . . I
couldn’t do anything.” While Cevilla was at work the next
day, Davila went to a neighbor’s and called her mother,
telling her about the incident. Davila did not attempt to call
the police again.
The abuse continued for years. Cevilla did not allow
Davila to work. She had no money of her own. She had no
friends. Davila testified: “It was like a hell. . . . I was always
locked inside, no telephone. But . . . my son [Yadher] lived
with us and [Cevilla] paid for my son’s education. . . . I just
lost all my willpower. I just felt like I didn’t know what to
do.”
In 2012, Davila’s mother made several attempts to locate
Yadher’s father. Her mother eventually contacted him and
explained Davila’s situation, telling him that Yadher’s life
DAVILA V. BARR 7
was in danger and that Davila needed help. The father, who
had been in Switzerland, returned to Nicaragua and took
Yadher to stay with his family. The same day, Davila left
Cevilla and traveled by bus to her mother. Knowing that
Cevilla would come look for her at her mother’s house,
Davila stayed with her mother’s neighbor. Indeed, her first
night there, Cevilla went to her mother’s house, kicking the
door and searching the house for Davila. Cevilla returned
several different times, “pound[ing] on the door [and]
scream[ing] at people,” looking for Davila.
After evading Cevilla for two months, Davila needed
money, and found work in a small restaurant. Two weeks
later, Cevilla came to the restaurant. He pulled Davila out by
her arm, took her to a motel, and beat and raped her. He told
her that she had to come back to him, and that if she did not
he would kill her. While Cevilla was showering, Davila
escaped.
Davila quit her job at the restaurant but sought other jobs.
However, Davila testified, “Whenever I found another job,
he’d always go to the job. . . . He would scream in front of
people that [I] was [a] filthy prostitute. And I was so
embarrassed, I couldn’t go back to those places.” Every time
Cevilla found Davila, he took her to a hotel, beat her, and
raped her.
Davila endured this for two years. Her son, Yadher,
visited her intermittently. During one of those visits, Cevilla
found them and demanded that Davila leave with him.
Davila refused. Standing next to Yadher, who was watching
television, Cevilla drew a knife. Over protestations from
Yadher, Davila left with Cevilla. Davila testified:
8 DAVILA V. BARR
He took me to the motel that night. He beat
me up like never before. He raped me many
different ways, and then he threw me out into
the street. He left me out on the street at
dawn, and I was beaten up like nothing.
When I got to the house, my mother saw my
— I was bleeding all over the place. She said,
that’s too much, dear. My mother said she
didn’t know what to do. She was
desperate. . . . My mother is the one that
decided to get me out of the country. She
preferred to see me far away than see me
dead.
Davila’s mother then “made it her business to send” Davila
to the United States. She mortgaged her home to pay for a
smuggler to transport Davila to the border.
On February 20, 2015, Davila left Nicaragua. She
presented herself at the Port of San Ysidro on March 3, 2015.
Cevilla continued to harass Davila’s family, looking for her
and throwing rocks at her mother’s house. Cevilla now
knows that Davila is in the United States and is “waiting for
[her] to go back.” Davila’s brother, who works with Cevilla,
also harasses their mother about Davila’s whereabouts.
Davila testified that she fears that if she is sent back to
Nicaragua, “they will kill me.”
B. Procedural History
On April 1, 2015, the Department of Homeland Security
served Davila with a Notice to Appear (“NTA”), charging her
with removability for seeking admission without valid entry
DAVILA V. BARR 9
documents. See 8 U.S.C. § 1182(a)(7)(A)(i)(I).1 At a
removal hearing on May 6, 2015, Davila conceded
removability. On June 10, 2015, Davila timely filed for
asylum, withholding of removal, and relief under CAT.
Davila testified in support of her application on July 8, 2016.
On October 17, 2016, the IJ issued a written decision
denying Davila’s application. The IJ concluded that Davila
had credibly testified. As to asylum, he concluded that she
had not shown persecution on account of membership in a
particular social group. The IJ rejected her proposed social
group of “women in domestic relationships who suffer
domestic violence and cannot escape abuse in their country.”
The IJ questioned whether the Nicaraguan government was
unable or unwilling to control her past persecution. He found
that the abuse Davila suffered was motivated by Cevilla’s
jealousy and alcohol consumption, as opposed to Davila’s
membership in a particular social group. The IJ also found
that Davila could not establish a well-founded fear of future
persecution because her fear was “not objectively reasonable”
due to Nicaragua’s “willingness to assist victims of rape and
domestic violence.” Because Davila had not shown
eligibility for asylum, the IJ further concluded that she
necessarily failed to meet the more demanding standard for
withholding of removal. As to relief under CAT, the IJ found
Davila ineligible because she did not establish that it was
more likely than not she would be tortured by, or with the
acquiescence of, a Nicaraguan public official.
1
The NTA also included an allegation that Davila presented a
counterfeit visa and a corresponding removability charge under 8 U.S.C.
§ 1182(a)(6)(C)(i). The government withdrew both.
10 DAVILA V. BARR
On appeal, the BIA wrote that Nicaragua had made
improvements in protecting women and, “[u]nder these
circumstances, and considering all relevant evidence,” agreed
with the IJ that Davila had not shown that the Nicaraguan
government was or would be unable or unwilling to protect
her from her claimed persecution. On that ground, the BIA
affirmed the denial of Davila’s applications for asylum and
withholding of removal. Similarly, the BIA affirmed the
denial of CAT relief on the ground that she had not shown
she would be tortured in Nicaragua by, or with the consent or
acquiescence of, a public official. The BIA did not reach any
other question.
II. Standard of Review
Our review is limited to the BIA’s decision except where
the IJ’s opinion is expressly adopted. Cordon-Garcia v. INS,
204 F.3d 985, 990 (9th Cir. 2000). We review legal
conclusions de novo. Id. We review for substantial evidence
the factual findings underlying the BIA’s determination that
a petitioner is not eligible for asylum, withholding of
removal, or CAT relief. Id.; Vitus v. Holder, 723 F.3d 1056,
1062 (9th Cir. 2013). To prevail under the substantial
evidence standard, the petitioner “must show that the
evidence not only supports, but compels the conclusion that
these findings and decisions are erroneous.” Cordon-Garcia,
204 F.3d at 990.
III. Discussion
A. Asylum and Withholding of Removal
An applicant for asylum and withholding of removal
bears the burden of establishing eligibility. 8 U.S.C.
DAVILA V. BARR 11
§§ 1158(b)(1)(B)(i), 1229a(c)(4)(A). To be eligible for
asylum, the applicant must show that “(1) [her] treatment
rises to the level of persecution; (2) the persecution was on
account of one or more protected grounds; and (3) the
persecution was committed by the government, or by forces
that the government was unable or unwilling to control.”
Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir.
2010); see also Parada v. Sessions, 902 F.3d 901, 909
(9th Cir. 2018) (“To be eligible for asylum, [the petitioner]
must establish that he is a refugee . . . .”); 8 U.S.C.
§ 1101(a)(42)(A) (defining a refugee as someone who is
unable or unwilling to return to their country “because of
persecution or a well-founded fear of persecution on account
of race, religion, nationality, membership in a particular
social group, or political opinion”). “If a noncitizen
establishes past persecution, a rebuttable presumption of a
well-founded fear arises, and the burden shifts to the
government to demonstrate that there has been a fundamental
change in circumstances such that the applicant no longer has
a well-founded fear.” Ming Dai, 884 F.3d at 867 (internal
quotation marks and citations omitted). An applicant who
fails to satisfy the lower standard for asylum necessarily fails
to satisfy the more demanding standard for withholding of
removal, which involves showing by a “clear probability”
that the petitioner’s life or freedom would be threatened in
the proposed country of removal. Farah v. Ashcroft, 348
F.3d 1153, 1156 (9th Cir. 2003); Lanza v. Ashcroft, 389 F.3d
917, 933 (9th Cir. 2004); 8 U.S.C. § 1231(b)(3)(A).
The BIA agreed with the IJ that Davila had not shown
that the Nicaraguan government was or would be unable or
unwilling to protect her from her persecutor, and that she was
therefore ineligible for asylum. The BIA noted that Davila
had never reported to “the authorities” the bribe Cevilla made
12 DAVILA V. BARR
to the police officers who had finally responded to her
repeated calls; had never again attempted to call the police;
and had never attempted to obtain a restraining order against
Cevilla. The BIA further noted that while evidence indicated
“domestic violence remains a problem, the government of
Nicaragua has made positive strides in protecting women.”
According to the BIA, the Nicaraguan government has
criminalized rape and “investigate[s] and help[s] prosecute
criminal complaints.”
Substantial evidence does not support the BIA’s
conclusion. Davila credibly testified that Cevilla paid off the
police officers that responded to her call. Those officers left
without speaking to Davila. Cevilla then beat her with
particular severity as punishment for calling the police.
Davila testified that she did not make additional attempts to
contact the police because her first one had so utterly failed,
and because she reasonably believed any further calls would
have the same result: “I called the police once, and from then
on I just resigned to keep taking it because they didn’t help
me.”
Davila testified to a general awareness that the
Nicaraguan police did not respond to reports of domestic
violence: “The police in my country, they don’t do
anything. . . . It happens all the time, you know, aggression
against women.” Davila testified that no one called the police
when Cevilla dragged her out of her job at the restaurant. She
testified about the corruption rife among police officers,
explaining why she had not filed for a restraining order: “The
law exists, but the law is not for the poor people. It’s only for
the people who have money. In my country, justice is for
sale.” Cevilla was relatively wealthy, working for his father
who owned several hotels. Davila had no money of her own,
DAVILA V. BARR 13
and she testified that her mother also did not have a lot of
money: “We’re poor.”
Other evidence corroborated the indifference of
Nicaraguan public officials toward domestic abuse. Davila
testified that her brother has physically attacked her mother
multiple times. Her mother filed a police report, but the
police “told her that because she didn’t have serious injuries
they weren’t going to do anything.” The Nicaragua Country
Report from the U.S. State Department notes that while the
law criminalizes “all forms of rape,” “[t]he government failed
to enforce the law effectively, . . . leading to widespread
impunity and increased violence.” The Country Report also
states that “[m]any women were reluctant to report abuse due
to,” among other things, “impunity for perpetrators,” and that
while “the law provides for the issuance of restraining orders,
problems in the effective enforcement of such mandates
continued, and they were not perceived as effective.” A June
2016 news article in the record reported that some thirty
Nicaraguan women were killed between January and May of
that year “at the hands of their partners or acquaintances,”
with the perpetrators going unpunished. Another June 2016
article in the record quoted Ana Orozco Evelyn Andrade, a
lawyer and member of the Nicaraguan Initiative for Human
Rights Defenders of Women, as saying that while reported
“femicides” were down in 2015 compared to 2014, “it is not
an objective reality” because “so many are not reported.”
In rejecting Davila’s claim, the BIA focused on the
“positive strides” Nicaragua had made in protecting women
and on the fact that the country criminalizes rape, citing the
State Department Country Report. The BIA also noted that
the Nicaraguan National Police can provide social and legal
help to women. “Under these circumstances,” the BIA wrote,
14 DAVILA V. BARR
Davila had not demonstrated that the Nicaraguan government
was unable or unwilling to protect her. However, the BIA
cited the Country Report selectively. For example, it cited
Nicaragua’s criminalization of rape and domestic violence
while ignoring information in the same paragraph about the
failure of the government to enforce the law and the resulting
“widespread impunity.” It cited Nicaragua’s provision for
restraining orders while ignoring information in the same
sentence about “problems in the effective enforcement of
such mandates.”
The BIA was required to evaluate all relevant evidence in
the record to determine whether Davila had carried her
burden. Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1069
(9th Cir. 2017) (en banc) (noting that relevant evidence
includes Country Reports). However, the BIA’s extreme
selectivity in using the Country Report evidence belies any
attempt to do so.
The BIA also erred when it faulted Davila for failing to
contact the police again and for failing to report Cevilla’s
bribe. As we explained in Bringas-Rodriguez, “[w]hether a
victim has reported or attempted to report violence or abuse
to the authorities is a factor that may be considered, as is
credible testimony or documentary evidence explaining why
a victim did not report.” Id. But it was error for the BIA to
require Davila to make an additional report of subsequent
abuse. Id. at 1066 n.9 (describing “our rule that reporting is
not required”). It was also error to disregard Davila’s
credible testimony about why she did not report subsequent
abuse after the first report was disregarded, as that is
“tantamount to making the reporting of private persecution a
sine qua non for the success of [his or her]” claim. Id. at
1065–66 (internal quotation marks omitted); see also
DAVILA V. BARR 15
Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1058 (9th Cir.
2006) (“[A]n applicant who seeks to establish eligibility for
with-holding of removal under section 1231(b)(3) on the
basis of past persecution at the hands of private parties the
government is unwilling or unable to control need not have
reported that persecution to the authorities if he can
convincingly establish that doing so would have been futile
or have subjected him to further abuse.”). Here, not only did
Davila actually report her persecution, but she also provided
credible testimony and documentary evidence about why she
did not make any further reports and about the more severe
abuse that followed her sole report. Davila has more than
satisfied her burden under our precedent. See, e.g.,
Andriasian v. INS, 180 F.3d 1033, 1042–43 (9th Cir. 1999)
(holding, where petitioner reported his persecution once,
government unwillingness or inability to protect “clearly
establish[ed]”); Korablina v. INS, 158 F.3d 1038, 1044–45
(9th Cir. 1998) (holding, where petitioner did not report
persecution but credibly testified that police were
uninterested in protecting Jews, government unwillingness or
inability to protect).
In sum, we hold that the record, considered as a whole,
does not provide substantial evidence for the BIA’s
conclusion that the Nicaraguan government was willing and
able to protect Davila.
The BIA did not address whether Davila belonged to a
cognizable particular social group, was persecuted on account
of her membership in that social group, or had a well-founded
fear of future persecution. We remand so that the BIA may
consider these issues for the first time.
16 DAVILA V. BARR
B. CAT
We conclude for similar reasons that substantial evidence
did not support the BIA’s determination that Davila had
failed to show that the Nicaraguan government consented to
or acquiesced in her torture for the purpose of CAT relief.
For withholding of removal under CAT, Davila must show
that it is “more likely than not that . . . she would be tortured
if removed” to Nicaragua. 8 C.F.R. § 208.16(c)(2). Torture
is defined as any act that intentionally inflicts “severe pain or
suffering” on a person for the purposes of obtaining
information or a confession; punishment; intimidation;
coercion; or discrimination. Id. § 208.18(a)(1). Torture is
“more severe than persecution.” Guo v. Sessions, 897 F.3d
1208, 1217 (9th Cir. 2018). “In addition, the torture must be
inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an
official capacity.” Garcia-Milian v. Holder, 755 F.3d 1026,
1033 (9th Cir. 2014) (internal quotation marks omitted);
8 C.F.R. § 208.18(a)(1). An applicant for CAT relief need
not show that she will be tortured on account of any particular
ground. Cole v. Holder, 659 F.3d 762, 770 (9th Cir. 2011).
The BIA concluded that Davila was ineligible for CAT
because she failed to show that it was more likely than not
she would be tortured in Nicaragua by, or with the consent or
acquiescence of, a public official. The BIA reiterated in
support of its holding that Nicaragua had made “positive
strides in protecting women” and that the Nicaraguan
National Police can provide social and legal help to women.
This reasoning suffers from the same flaws as above.
Accordingly, we hold that substantial evidence did not
support the BIA’s determination that Davila failed to show
that sufficient state action was involved in her torture. See
DAVILA V. BARR 17
Garcia-Milian, 755 F.3d at 1033. We remand so that the
agency may consider for the first time whether Davila’s abuse
rose to the level of torture, and whether it is more likely than
not that she would be tortured upon removal to Nicaragua.
Conclusion
Davila has shown the Nicaraguan government’s
unwillingness or inability to address the abuse she suffered at
the hands of Cevilla, as well as the government’s
acquiescence in that abuse. We remand so that the BIA may
consider whether Davila’s abuse rose to the level of
persecution; whether she belongs to a cognizable particular
social group; whether her persecution was on account of her
membership in said social group; whether her abuse rose to
the level of torture; and whether it is more likely than not she
would be tortured if returned to Nicaragua.
Petition GRANTED and REMANDED.2
2
Davila has moved for summary grant of her petition on the ground
that her original NTA did not specify a hearing date or time and therefore
did not properly vest the IJ or BIA with jurisdiction over her case. Dkt.
Entry No. 21. This motion is DENIED. See Karingithi v. Whitaker, 913
F.3d 1158, 1160 (9th Cir. 2019).