Rocio Flores-Ordonez v. Merrick Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 24 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROCIO FLORES-ORDONEZ, No. 18-73414
Petitioner, Agency No. A206-725-704
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 14, 2023**
San Francisco, California
Before: WATFORD and SANCHEZ, Circuit Judges, and BENITEZ,*** District
Judge.
Rocio Flores-Ordonez, a native and citizen of Honduras, petitions for review
of an order of the Board of Immigration Appeals (BIA) dismissing her appeal
*
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 Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.
Page 2 of 3
from the decision of an Immigration Judge (IJ) denying her application for asylum.
Before the IJ and the BIA, Flores-Ordonez proposed three particular social groups
(PSGs): (1) “Honduran single female economic heads of household”; (2)
“Honduran women”; and (3) “Hondurans who refuse to comply with extortion
demands.” We deny the petition for review as to the first two PSGs. We remand
for the BIA to consider whether Flores-Ordonez has established a well-founded
fear of future persecution on account of her membership in the third PSG.
1. The record does not compel the conclusion that MS-13 gang members
targeted Flores-Ordonez or would target her in the future on account of her status
as a Honduran female head of household or a Honduran woman. See Gu v.
Gonzales, 454 F.3d 1014, 1018–19 (9th Cir. 2006). While gang members extorted
Flores-Ordonez at the mall, they also extorted her co-workers and others who
worked there. They did not limit their extortion efforts to members of these two
PSGs, taking aim instead at a broad group of people of various backgrounds.
In addition, the record does not compel the conclusion that the individual
MS-13 member who threatened Flores-Ordonez did so because of her membership
in these two PSGs. His actions appear to have been motivated by anger at Flores-
Ordonez for spurning his romantic advances rather than on account of her identity.
Based on the evidence in the record, a reasonable factfinder could conclude that he
threatened her for personal reasons separate from her membership in these PSGs.
Page 3 of 3
See Barrios v. Holder, 581 F.3d 849, 856 (9th Cir. 2009), abrogated on other
grounds, Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc).
2. The BIA determined that Flores-Ordonez’s third proposed PSG of
“Hondurans who refuse to comply with extortion demands” was not cognizable on
the ground that “it is characterized entirely by the harm asserted in the
respondent’s asylum application.” In so doing, the BIA did not properly make “a
case-by-case determination as to whether th[is] group is recognized by” Honduran
society. Pirir-Boc v. Holder, 750 F.3d 1077, 1084 (9th Cir. 2014).
In her opening brief and before the BIA, Flores-Ordonez argued that
Hondurans who resist or defy gang extortion demands constitute a recognizable
group in Honduran society whose members are singled out for violent retaliation.
The BIA overlooked these arguments, and its rationale for denying this PSG is
accordingly deficient. While the BIA could conclude on remand that this proposed
PSG is not sufficiently recognized by Honduran society to render it cognizable, the
BIA must make a determination in the first instance in light of Flores-Ordonez’s
contentions.
PETITION FOR REVIEW GRANTED in part and DENIED in part;
CASE REMANDED.
The parties shall bear their own costs.