Cristina Gaitan-Bernal v. Jefferson Sessions , 695 F. App'x 224 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 14 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CRISTINA GAITAN-BERNAL, No. 13-72374
Petitioner, Agency No. A098-988-971
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 9, 2017**
Before: SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges.
Cristina Gaitan-Bernal, a native and citizen of El Salvador, petitions for
review of a Board of Immigration Appeals’ (“BIA”) order dismissing her appeal
from an immigration judge’s decision denying her application for asylum,
withholding of removal, and protection under the Convention Against Torture
*
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).
(“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial
evidence the agency’s factual findings. Bringas-Rodriguez v. Sessions, 850 F.3d
1051, 1059 (9th Cir. 2017) (en banc). We grant the petition for review and
remand.
As to asylum and withholding of removal, when the agency found Gaitan-
Bernal failed to demonstrate the harm she experienced and fears were on account
of a protected ground, it did not have the benefit of this court’s decisions in
Cordoba v. Holder, 726 F.3d 1106 (9th Cir. 2013), and Pirir-Boc v. Holder, 750
F.3d 1077 (9th Cir. 2014), or the BIA’s decisions in Matter of A-R-C-G-, 26 I. &
N. Dec. 388 (BIA 2014) (“married women in Guatemala who are unable to leave
their relationship” can constitute a cognizable social group), and Matter of
M-E-V-G-, 26 I. & N. Dec. 227 (BIA 2014). Further, the record does not support
the agency’s conclusion that even if Gaitan-Bernal’s social group was cognizable,
her husband’s “controlling and distrustful nature” was the single motivating factor
for her mistreatment. See Hu v. Holder, 652 F.3d 1011, 1019 (9th Cir. 2011)
(record compelled the conclusion that petitioner satisfied the nexus requirement).
In addition, substantial evidence does not support the agency’s relocation finding
where Gaitan-Bernal’s previous relocation attempt was unsuccessful. See Kaiser
v. Ashcroft, 390 F.3d 653, 659-60 (9th Cir. 2004). Substantial evidence also does
not support the agency’s finding based on Gaitan-Bernal’s failure to seek
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assistance from authorities in El Salvador. See Bringas-Rodriguez, 850 F.3d at
1073-75; Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1058 (9th Cir. 2006)
(reporting private persecution not required where it would be futile or subject
petitioner to further abuse). Further, the record does not support the agency’s
finding that the evidence shows ARENA party members were willing to help
Gaitan-Bernal.
Further, in denying CAT relief, the agency found Gaitan-Bernal presented
“no evidence” that her husband acted with the consent or acquiescence of a public
official. The agency erred by failing to consider Gaitan-Bernal’s testimony about
her husband’s relationship with police officers. The agency also did not address
the State Department country report and other country conditions evidence in
denying Gaitan-Bernal’s CAT claim. See Madrigal v. Holder, 716 F.3d 499, 508-
10 (9th Cir. 2013) (agency must consider all evidence in assessing likelihood of
torture).
In light of these conclusions, we grant the petition for review and remand
Gaitan-Bernal’s asylum, withholding of removal, and CAT claims to the agency
for further proceedings consistent with this disposition. See INS v. Ventura, 537
U.S. 12, 16-18 (2002) (per curiam).
PETITION FOR REVIEW GRANTED; REMANDED.
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