Fidel Mondragon-Alday v. Loretta E. Lynch

FILED
NOT FOR PUBLICATION SEP 03 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FIDEL MONDRAGON-ALDAY, AKA No. 12-70361
Alan Alday, AKA Alan Alday Bermudez,
AKA Cesar Chavarria, AKA Guadalupe Agency No. A079-620-077
Magallanes, AKA Guadalupe Alday
Magallanes, AKA Sergio Magallanes,
MEMORANDUM*
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 6, 2015
Pasadena, California
Before: PREGERSON, PARKER**, and NGUYEN, Circuit Judges.
Fidel Mondragon-Alday, who uses the name Lucia, is a transgender woman
and a citizen of Mexico. She petitions for review of a Board of Immigration
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Barrington D. Parker, Jr., Senior Circuit Judge for the
U.S. Court of Appeals for the Second Circuit, sitting by designation.
Appeals (BIA) decision affirming the denial of her applications for withholding of
removal and relief under Article 3 of the Convention Against Torture (CAT). We
have jurisdiction under 8 U.S.C. § 1252(a), and we grant her petition in part.
1. The immigration judge’s (IJ) adverse credibility finding was supported
by substantial evidence because Mondragon-Alday provided inconsistent
testimony regarding her abuse at the hands of the Mexican police. An IJ may
consider “the consistency between the applicant’s . . . written and oral statements”
when determining credibility. 8 U.S.C. § 1158(b)(1)(B)(iii). The BIA determined
that Mondragon-Alday was provided with a reasonable opportunity to clarify such
discrepancies, and acted within its discretion when finding her explanation to be
unsatisfactory. Because “the record in this case does not compel the conclusion
that [Mondragon-Alday]’s testimony was credible and persuasive,” we deny the
petition for review as to the adverse credibility finding. See Ling Huang v. Holder,
744 F.3d 1149, 1151 (9th Cir. 2014).1
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Mondragon-Alday also claims that the IJ violated her due process rights by
failing to develop the record of her past persecution. Reviewing the record, we
agree with the BIA that the IJ “fully develop[ed] the record” such that Mondragon-
Alday’s due process rights were not violated. Agyeman v. INS, 296 F.3d 871, 877
(9th Cir. 2002) (quoting Jacinto v. INS, 208 F.3d 725, 733 (9th Cir. 2000))
(internal quotation marks omitted).
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2. Because Mondragon-Alday’s claim of past persecution rested largely on
her own testimony, substantial evidence supports the BIA’s determination that she
did not prove past persecution. But a “likelihood of future persecution may still be
sufficient to merit withholding of removal.” Wakkary v. Holder, 558 F.3d 1049,
1060 (9th Cir. 2009). The BIA erred in its consideration of Mondragon-Alday’s
evidence of likely future persecution by assuming that legal protections for gay and
lesbian persons would benefit Mondragon-Alday, a transgender woman. See
Avendano-Hernandez v. Lynch, slip op. at . The BIA’s analysis of
Mondragon-Alday’s CAT claim suffers from the same infirmity. Because there is
“substantial, non-testimonial, evidence in the record of the significant danger” that
transgender women in Mexico face, Al-Harbi v. INS, 242 F.3d 882, 894 (9th Cir.
2001), on remand the BIA should consider the particularized dangers faced by
transgender women.
Therefore, we GRANT the petition in part, and REMAND for further
proceedings consistent with this disposition.
PETITION GRANTED AND REMANDED IN PART, DENIED IN PART.
Each party shall bear its own costs on appeal.
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