Cintia Perez Zamora v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 8 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CINTIA MAITE PEREZ ZAMORA, No. 18-70021
Petitioner, Agency No. A206-461-940
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 18, 2020
Pasadena, California
Before: FERNANDEZ, PAEZ, and OWENS, Circuit Judges.
Partial Concurrence and Partial Dissent by Judge FERNANDEZ
Cintia Perez Zamora (“Zamora”), a native and citizen of Guatemala,
petitions for review of the Board of Immigration Appeals’ (“BIA”) order
dismissing her appeal from an Immigration Judge’s (“IJ”) denial of asylum,
withholding of removal, and protection under the Convention Against Torture
(“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review de novo the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
agency’s legal determinations and we review its factual findings for substantial
evidence. Singh v. Holder, 656 F.3d 1047, 1051 (9th Cir. 2011). We grant in part
and dismiss in part the petition for review and remand to the BIA for further
consideration.
1. Zamora challenges the agency’s rejection of her proposed social group of
“young women without parental protection who are raped” as not cognizable due
to its circularity by including elements of harm. To determine whether a proposed
social group is cognizable, the BIA asks whether the group is “(1) composed of
members who share a common immutable characteristic, (2) defined with
particularity, and (3) socially distinct within the society in question.” Rios v.
Lynch, 807 F.3d 1123, 1127-28 (9th Cir. 2015) (citation omitted). In our recent
opinion, Diaz-Reynoso v. Barr, we held that a proposed social group is not
necessarily disqualified if it includes mention of feared persecution. 968 F.3d
1070, 1081-82 (9th Cir. 2020). In light of Diaz-Reynoso, we grant the petition for
review in part on the BIA’s decision to deny Zamora’s asylum and withholding
claims and remand for further proceedings.
2. Zamora also challenges the denial of her claim for CAT relief. The CAT
forbids the government from removing a person to any country where it is “more
likely than not” that she will be tortured by either the government or private
individuals acting with the government’s acquiescence. 8 C.F.R. § 1208.16(c)(2).
2
The BIA concluded that Zamora’s assertion that Guatemalan police would not
protect her from her neighbors “was based on speculation and was not supported
by objective evidence.” We grant the petition for review in part and remand to the
BIA for adequate consideration of Zamora’s age as one of the factors in
determining that there was government acquiescence to torture. See Bringas-
Rodriguez v. Sessions, 850 F.3d 1051, 1071 (9th Cir. 2017).
3. There are two avenues for humanitarian asylum under 8 C.F.R.
§ 1208.13(b)(1)(iii). Sub-section (A) requires a finding of “past persecution,” i.e.,
harm on account of a protected ground. We remand Zamora’s claim for
humanitarian asylum based on “past persecution” for further consideration
consistent with this memorandum. To the extent that Zamora’s request for
humanitarian asylum is based upon the “other serious harm” provision of sub-
section (B), we lack jurisdiction over it because Zamora did not raise this argument
before the BIA. 8 U.S.C. § 1252(d)(1). We dismiss the petition for review in part
with respect to Zamora’s claim for humanitarian asylum under 8 C.F.R.
§ 1208.13(b)(1)(iii)(B).
Petition GRANTED IN PART, DISMISSED IN PART, and
REMANDED.
3
FILED
Perez Zamora v. Barr, No. 18-70021
DEC 8 2020
FERNANDEZ, Circuit Judge, concurring in part and dissenting in part: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I concur in paragraphs 1 and 3 of the disposition because I understand that
we are directing the BIA to consider if and how the legal principles set forth in
Diaz-Reynoso v. Barr, 968 F.3d 1070 (9th Cir. 2020) affect its ultimate decision
regarding Perez’s asylum and withholding claims. However, I dissent from
paragraph 2 because the evidence in this record would not compel a determination
that Perez would be tortured by the government or that the government would
acquiesce in her torture. See 8 C.F.R. § 1208.18(a); see also
8 C.F.R. § 1208.16(c)(2). Thus, I respectfully concur in part and dissent in part.