Davila v. Holder

FILED
NOT FOR PUBLICATION JAN 19 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
SHYRLEY DAVILA, No. 07-73785
Petitioner, Agency No. A076-854-019
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 15, 2011
San Francisco, California
Before: KOZINSKI, Chief Judge, BEA, Circuit Judge, and GETTLEMAN,
District Judge.**
1. Regardless of whether the BIA or IJ directly considered whether the harm
Davila fears is on account of her family membership, she is unable to show that her
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Robert W. Gettleman, Senior District Judge for the
U.S. District Court for Northern Illinois, sitting by designation.
page 2
family’s “persecutors actually imputed a political opinion” to her family. Ochoa v.
Gonzales, 406 F.3d 1166, 1171 (9th Cir. 2005) (quoting Sangha v. INS, 103 F.3d
1482, 1489 (9th Cir. 1997)). Davila failed to demonstrate what political views the
alleged persecutors attributed to her family, and any inference of political
motivation that might be drawn from the unexplained killings of her family
members doesn’t qualify as “clearly to be drawn from facts in evidence.” Id.
(quoting Sangha, 103 F.3d at 1487).
2. The BIA and IJ didn’t fail to consider Davila’s experience as a child in
rejecting her claim to past persecution or a well-founded fear of future persecution.
Davila left Guatemala at age nine and testified, “I hardly have any memories of
living over there.” The stories she’s heard from friends and relatives about dangers
in Guatemala fall short of the horrific events experienced firsthand by the asylum
applicants in Hernandez-Ortiz v. Gonzales, 496 F.3d 1042 (9th Cir. 2007).
3. Davila’s claim to derivative standing to pursue her mother’s asylum
claim doesn’t suffer from a failure to exhaust. Davila’s June 7, 2007, letter to the
BIA raised the key issue as it then stood: whether Davila, as a derivative asylum
applicant, could pursue her mother’s asylum claim. When the government
responded with a motion for summary dismissal, Davila wasn’t obliged to respond,
page 3
as she’d already raised the derivative standing issue. And once the BIA granted
the government’s dismissal motion, Davila had no opportunity to present her
derivative standing argument as a continuing derivative asylum claim despite the
fact that her mother had received a different form of relief.
The BIA thus never addressed Davila’s derivative standing claim. We
remand for it to do so.
PETITION DENIED IN PART; PETITION GRANTED IN PART AND
REMANDED.