Iris Zapata Fornel v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 16 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
IRIS YOLANDA ZAPATA FORNEL; No. 15-72968
MAYERLIN YOLANI ZAMBRANO
ZAPATA, Agency Nos. A206-796-735
A206-796-736
Petitioners,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 11, 2022**
Seattle, Washington
Before: NGUYEN, MILLER, and BUMATAY, Circuit Judges.
Iris Zapata-Fornel and her daughter Mayerlin petition for review from a Board
of Immigration Appeals (“BIA”) decision denying their applications for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”).
*
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).
We have jurisdiction under 8 U.S.C. § 1252(a). We grant the petition in part and
deny in part.
1. We grant Zapata-Fornel’s petition with respect to her claims of asylum
and withholding of removal based on her status as a woman in Honduras. While the
BIA does not err when it declines to consider an applicant’s argument raised for the
first time on appeal, Honcharov v. Barr, 924 F.3d 1293, 1297 (9th Cir. 2019) (per
curiam), the BIA does err when it fails to address arguments that are properly raised
before it. See Muradin v. Gonzales, 494 F.3d 1208, 1210 (9th Cir. 2007); Chen v.
Ashcroft, 362 F.3d 611, 620 (9th Cir. 2004). To be properly raised, the issue need
not have been “raised in a precise form during the administrative proceeding.” Bare
v. Barr, 975 F.3d 952, 960 (9th Cir. 2020). “Rather, the petitioner may raise a
general argument in the administrative proceeding and then raise a more specific
legal issue on appeal. What matters is that the BIA was sufficiently on notice so that
it ‘had an opportunity to pass on [the] issue.’” Id. (citation omitted) (quoting Zhang
v. Ashcroft, 388 F.3d 713, 721 (9th Cir. 2004) (per curiam)).
The BIA erred in failing to consider Zapata-Fornel’s claims of asylum and
withholding of removal based on persecution of Honduran women. In her initial
application before the IJ, Zapata-Fornel stated that she feared “violence and
persecution as a victim of domestic violence who cannot leave her partner, as a
woman in Honduras, and as a single mother.” Zapata-Fornel also attached multiple
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exhibits detailing violence against women in Honduras. However, in issuing its
ruling, the IJ focused on Zapata-Fornel’s domestic violence claim and did not reach
her claim on the basis of being a Honduran woman.
On appeal before the BIA, Zapata-Fornel again raised her claims based on
persecution of Honduran women. Specifically, Zapata-Fornel argued that
“Honduran women suffer a pattern and practice of persecution” and that her fear of
future persecution was reasonable based on the evidence in the record. Zapata-
Fornel also attached some of the same reports and evidence that she had previously
provided to the IJ in detailing violent conditions for women in Honduras. By doing
so, Zapata-Fornel presented a sufficient argument that she was seeking protection as
a Honduran woman so that the BIA was “on notice” of the claim and had an
opportunity to address it. The BIA thus erred in concluding that Zapata-Fornel’s
claims were “not raised below” and “not developed on appeal with any specificity.”
Because Zapata-Fornel’s claims of persecution as a Honduran woman were raised
before the IJ, and again on appeal before the BIA, we grant her petition with respect
to these claims. Unlike Zapata-Fornel’s claims for asylum and withholding of
removal on the basis of being a “woman in Honduras,” her claim based on being a
“single mother” was not specifically developed before the BIA. As a result, that
argument was forfeited. See Sola v. Holder, 720 F.3d 1134, 1135 (9th Cir. 2013)
(per curiam); Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir. 2004).
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2. We deny Zapata-Fornel’s petition with respect to her claim of asylum
and withholding of removal on the basis of being a victim of domestic violence who
cannot leave her partner. To be eligible for asylum, a petitioner must demonstrate a
likelihood of persecution on a protected ground, 8 U.S.C. § 1101(a)(42)(A), and for
withholding of removal, a petitioner must establish a “clear probability of
persecution.” Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir. 1995) (quoting Arriaga-
Barrientos v. INS, 925 F.2d 1177, 1178 (9th Cir. 1991)). We review the BIA’s denial
of asylum and withholding of removal for substantial evidence. Sharma v. Garland,
9 F.4th 1052, 1060 (9th Cir. 2021).
Substantial evidence supports the BIA’s finding that Zapata-Fornel did not
prove past persecution or a well-founded fear of future persecution based on
domestic violence. The BIA reviewed the incidents of harm in the record and
concurred with the IJ’s conclusion that Zapata-Fornel had not experienced harm
rising to the level of persecution. The BIA provided individualized consideration of
the actual harm documented in the record, which included two incidents of physical
violence against Zapata-Fornel, one incident of physical violence against Mayerlin,
one incident of threatening behavior with a firearm, infidelity by Zapata-Fornel’s
former partner, and failure by Zapata-Fornel’s partner to make child support
payments ordered by a Honduran court. Nonetheless, the BIA correctly observed
that “persecution is an extreme concept,” see He v. Holder, 749 F.3d 792, 796 (9th
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Cir. 2014), and substantial evidence supports its determination that the harm
experienced by Zapata-Fornel, although serious, did not rise to that level. Because
substantial evidence supports the BIA’s denial of Zapata-Fornel’s claims on the
basis of domestic violence, we deny that portion of her petition.
3. We deny Zapata-Fornel’s petition with respect to her CAT claim. In
order to obtain CAT protection, an applicant must prove that it is “more likely than
not” that she will be tortured if removed to her home country. 8 C.F.R. §
1208.16(c)(2). We review a denial of CAT relief for substantial evidence. Arteaga
v. Mukasey, 511 F.3d 940, 944 (9th Cir. 2007).
Substantial evidence supports the BIA’s finding that Zapata-Fornel failed to
establish that it was more likely than not she would be tortured. While Zapata-
Fornel’s evidence demonstrates that generalized violence is a significant problem in
Honduras, such evidence fails to show that she is more likely than not to be tortured.
The BIA correctly reasoned that such generalized evidence which is “not particular
to [the applicant]” is insufficient to establish a threat of torture. Delgado-Ortiz v.
Holder, 600 F.3d 1148, 1152 (9th Cir. 2010) (per curiam). As a result, substantial
evidence supports the BIA’s denial of Zapata-Fornel’s claim for CAT protection.
Costs are awarded to Zapata-Fornel.
PETITION GRANTED IN PART, DENIED IN PART.
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