Rebeca Cristobal Antonio v. Merrick Garland

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
REBECA RUFINA CRISTOBAL No. 21-70624
ANTONIO,
Petitioner, Agency No.
A206-498-048
v.
MERRICK B. GARLAND, Attorney OPINION
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted July 13, 2022
Pasadena, California
Filed January 26, 2023
Before: Mark J. Bennett and Gabriel P. Sanchez, Circuit
Judges, and Elizabeth E. Foote, * District Judge.
Opinion by Judge Bennett;
Concurrence by Judge Sanchez
*
The Honorable Elizabeth E. Foote, United States District Judge for the
Western District of Louisiana, sitting by designation.
2 ANTONIO V. GARLAND
SUMMARY **
Immigration
Granting Rebeca Cristobal Antonio’s petition for review
of the Board of Immigration Appeals’ decision upholding
the denial of asylum and related relief, and remanding, the
panel held that (1) substantial evidence did not support the
agency’s determination that the treatment Antonio suffered
did not amount to persecution, (2) the agency erred in
characterizing Antonio’s proposed social group and
concluding that it was not cognizable, and (3) the agency
erred by failing to consider highly probative evidence
regarding the Guatemalan government’s willingness or
ability to control the persecution.
Individuals in Antonio’s community verbally and
physically harassed and threatened her with death because
they perceived her to be a lesbian because she wore men’s
clothing to work. Specifically, Antonio’s neighbors
threatened that if she dressed in men’s clothing they would
“get together and burn her down and whip her,” and told her
that if she did not leave the community, they would kill
her. The panel explained that in concluding that this
treatment amounted simply to threats the immigration judge
failed to recognize that threats may be compelling evidence
of past persecution, particularly when the threats are specific
and menacing and accompanied by violent confrontations,
near-confrontations and vandalism.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ANTONIO V. GARLAND 3
The panel explained that in this case, the record revealed
much more than threats alone. A crowd met Antonio at her
workplace and threatened to lynch and burn her if she did
not remove the men’s clothing. Her neighbors told her
husband they believed she was bisexual or lesbian, and even
spoke with her grandparents, who were scared for her
safety. Community members took her to the police because
they perceived her to be a lesbian, and Antonio’s family
members violently attacked her. Taken together, the panel
concluded that the death threats, mob violence, involuntary
transport to the police station, and repeated whipping by her
uncles compelled the conclusion that Antonio suffered past
persecution.
Antonio asserted that she was persecuted on account of
her membership in a social group comprised of “wom[e]n in
Guatemala who are perceived to have male tendencies and
are seen as dangerous to the community.” The IJ found this
articulation too “amorphous” and reasoned that the style of
Antonio’s dress was not an immutable characteristic
qualifying as a particular social group. The IJ further stated
that Antonio’s claim was not a gender or sexual orientation
issue because Antonio indicated that she was not a
lesbian. The panel wrote that this finding ignored Antonio’s
arguments before both the IJ and the BIA that she belonged
to a different particular social group comprised of “women
in Guatemala who are perceived to be lesbian.” The panel
explained that the agency is not free to ignore arguments
raised before it, and that the failure to address a social group
claim, or failure to analyze such a claim under the correct
legal standard, constitutes error and requires remand. The
panel observed that although this court has discussed the
issue, neither this court in a published opinion, nor the BIA,
has explicitly recognized perceived or imputed sexual
4 ANTONIO V. GARLAND
orientation as a cognizable social group. The panel
remanded for the agency to determine whether women in
Guatemala perceived to be lesbian constitute a particular
social group, and if so, whether Antonio’s persecution was
on account of her membership in that group.
In concluding that Antonio did not show persecution
committed by the government or by forces that the
government was unwilling or unable to control, the IJ’s
analysis focused on Antonio’s complaint to the Justice of the
Peace and the Justice of the Peace’s decision to remit the
matter for criminal investigation. The panel explained that
this decision does not end the inquiry, as the government’s
failure to take promised future action may establish that the
government was either unable or unwilling to exercise such
control. The panel wrote that in this case no record evidence
indicated whether the criminal referral by the Justice of the
Peace led to any arrests, criminal prosecution, or other action
by authorities to minimize the threats against Antonio.
Further, the panel wrote that the record suggested that
the agency failed to consider all of the evidence, such as
Antonio’s statements that the mayor of her village “would
be behind [her neighbors] if they try to kill [her],” and that
she fears the mayor the most because “[h]e is the one who
has the last decision whether to kill me or not.” Moreover,
the panel wrote that the record revealed that the police took
some action to end Antonio’s harassment temporarily but did
not make any arrests—even when the police arrived at the
scene of a crowd threatening to kill Antonio. The panel
noted that the IJ did not explicitly address evidence that the
death threats continued despite police awareness. Nor did it
address the abuse Antonio’s uncles inflicted against her.
ANTONIO V. GARLAND 5
Finally, the panel observed that although the IJ
considered the Country Condition Report as to Antonio’s
CAT claim, the report indicated that Guatemala’s
antidiscrimination laws do not apply to LGBTI individuals
who often face police abuse, and that the government’s
efforts to address widespread discrimination against LGBTI
people have been “minimal.” The panel noted that the IJ
found the report irrelevant because Antonio stated she is not
a lesbian. However, given the reasons for remand of
Antonio’s social group claim, the panel wrote that the
agency might view this country report evidence differently
on remand.
Concurring, Judge Sanchez wrote separately to address
the question of perceived or imputed sexual orientation and
whether such group should be recognized as a particular
social group. Judge Sanchez agreed that neither this court
nor the BIA has recognized in published authority that such
a group would qualify, and that remand was warranted for
the BIA to address this issue in the first instance. Judge
Sanchez explained, however, that under longstanding circuit
and BIA precedent involving persecution on account of
imputed protected characteristics and addressing the
importance of the perception of the persecutor, the answer to
this question seems clear that perceived or imputed sexual
orientation would qualify as a particular social group.
6 ANTONIO V. GARLAND
COUNSEL
Marco A. Jimenez (argued), Jimenez Law Office, Riverside,
California, for Petitioner.
John F. Stanton (argued), Rosanne M. Perry, and Nelle M.
Seymour, Trial Attorneys; Leslie McKay, Senior Litigation
Counsel; Brian Boynton, Acting Assistant Attorney General;
United States Department of Justice, Office of Immigration
Litigation, Civil Division; Washington, D.C.; for
Respondent.
OPINION
BENNETT, Circuit Judge:
Rebeca Cristobal Antonio, a native and citizen of
Guatemala, petitions for review of the Board of Immigration
Appeals’ (“BIA”) streamlined affirmance of the
immigration judge’s (“IJ”) denial of her claims for asylum,
withholding of removal, and protection under the United
Nations Convention Against Torture (“CAT”). Antonio was
verbally and physically harassed and received death threats
because her community in Guatemala perceived her to be a
lesbian, including because she wore men’s clothing to work.
In her petition for review, Antonio challenges the IJ’s
findings that: (1) this treatment did not amount to
persecution, (2) the relevant social group for asylum
purposes is based on “manner of dress,” and (3) no
persecution was committed by the Guatemalan government
or by forces that the government was unwilling or unable to
control. The first finding is not supported by substantial
evidence in the record. The second finding suffers from
ANTONIO V. GARLAND 7
several errors discussed below. And in making the third
finding, the agency did not consider all highly probative
evidence in the record. We therefore grant the petition and
remand for further proceedings.
I. BACKGROUND
When Antonio applied for entry into the United States in
March 2014, an asylum officer found that she had a credible
fear of persecution. In the notes of the credible fear
interview, the asylum officer wrote:
You stated that starting about one year ago
you began to dress in men’s clothing in order
to find work. As a result, the townspeople
from your village labeled you a lesbian. Your
neighbors threatened to kill you if you
remained in the village because they do not
approve of lesbians. Your uncles whipped
you up frequently because they wanted you
to give them food and money, and they also
insulted you about being a lesbian.
Although Antonio specifically told the asylum officer that
she was not a lesbian, she described threats she received
because the villagers believed she was a lesbian: “[T]hey
would get together and burn me down and whip me.” “They
said that if I didn’t leave that place they would kill me.”
“[T]hey did not want any lesbian women in the village.”
Based on these threats, the asylum officer noted that Antonio
alleged membership in a particular social group: “The people
from your village and your family members are motivated to
harm you with at least one central reason being that they
believe that you are a member of the particular social group
that is lesbian women in Guatemala.”
8 ANTONIO V. GARLAND
Besides detailing her fear, Antonio explained why she
could not seek help from local authorities. Her testimony to
the asylum officer suggests that she told the police about her
problems “but they didn’t pay attention to me … because
they told me that I have to tell them that I am not the kind of
person that they think that I am.” 1 She also told the asylum
officer that her neighbors said that “the police wouldn’t do
anything” if her neighbors tortured her. And she expressed
fear of her village’s mayor: “He is the one who has the last
decision whether to kill me or not.” 2 She stated that the
mayor “would be behind [her neighbors] if they try to kill
[her].”
The Department of Homeland Security issued a notice to
appear charging Antonio with removability as an individual
without a valid entry document at the time of application for
admission. 8 U.S.C. § 1182(a)(7)(A)(i)(I). Antonio applied
for asylum, withholding of removal, and protection under
CAT. Her application stated that when she started wearing
pants to work, which entailed collecting logs and grasses, her
community started to shout at her that she was a lesbian and
that they would kill her because she was a “wrong example
for their children.”
In a written declaration Antonio submitted in lieu of
testimony at her asylum hearing before the IJ, she said that
her community tortured her “for dressing up as a man,”
1
The record could plausibly be read as attributing this statement to
Antonio’s uncles, but in context, it appears that Antonio is referring to
the police. In either case, this testimony supports her argument that she
was persecuted on account of her perceived sexual orientation.
2
Antonio did not comment on her fear of the mayor in her declaration,
was not asked about this fear further at the hearing, and did not mention
this fear in her appellate brief.
ANTONIO V. GARLAND 9
including by taking her to the police, because they believed
”dressing up as a man means that [she is] a lesbian” and sets
“a bad example for the children” in the village. 3 The police
let her go, but the death threats did not stop. The declaration
adds that Antonio’s “grandparents got worried and told [her]
not to work so the community would not hurt [her].” She
married a man but eventually “separated from [her]
husband” due to the persistent rumors and harassment. She
left for the United States because she wanted to end her
torment.
At the asylum hearing, Antonio also submitted a
complaint that she filed against her harassers with a Justice
of the Peace of the municipality of San Pedro. In it, she
explained how her marriage fell apart because of the rumors
about her sexuality. The harassment escalated after that. On
December 20, 2013, members of the community waited for
her at her place of work and attempted to lynch her. They
demanded that she remove the men’s clothing, or else she
“was going to burn.” Someone called the authorities, who
“rescue[d]” her. Antonio also submitted the decision; the
local court denounced the behavior as “crimes of
[d]iscrimination, insult and threats” and “remit[ted] the
proceedings to the municipal Prosecutor of the Public
Ministry . . . for the corresponding criminal investigation.” 4
The IJ found Antonio credible, noting “that her
declaration is consistent with the documentary evidence that
3
The IJ asked her additional questions on the record.
4
The parties stated at oral argument that they do not know if the local
government prosecuted Antonio’s assailants after the Justice of the Peace
referred the case to the municipal prosecutor. Oral Arg. at 5:40–5:50;
18:40–19:10.
10 ANTONIO V. GARLAND
she provided, specifically, the police report that she gave in
her documents.” On the issue of past persecution, the IJ first
found that the community’s threats did not rise to the level
of persecution, although the decision did not discuss the
repeated whipping by her uncles that Antonio described in
her credible fear interview. Second, the IJ denied that
Antonio belonged to a cognizable particular social group,
finding that “style of her dress” is not an immutable
characteristic and stating that Antonio’s “articulated
particular social group”—which the IJ did not restate in her
order—“is . . . too amorphous for [the IJ] to be able to say it
fits within the particular social group analysis.” 5 The IJ
specifically rejected the notion that Antonio presented a
“sexual orientation issue because Respondent stated she was
not a lesbian.” Finally, the IJ found that the Guatemalan
government did not persecute her or acquiesce in her
persecution. 6 The IJ highlighted that the “criminal branch
municipality of San Pedro Soloma Court of La Paz . . .
denounced [the facts] as discrimination, insults, and threats,
and then said that the court was inhibited and remits
proceedings to headquarters for a corresponding criminal
investigation.” Thus, the IJ denied her application for
5
During the hearing, Antonio’s counsel phrased the particular social
group as “wom[e]n in Guatemala who are perceived to have male
tendencies and are seen as dangerous to the community.”
6
We interpret the IJ’s finding that the Guatemalan government did not
acquiesce in Antonio’s persecution, as a finding that Antonio was not
persecuted by the Guatemalan government or “forces that the
government was unable or unwilling to control.” Bringas-Rodriguez v.
Sessions, 850 F.3d 1051, 1062 (9th Cir. 2017) (en banc); 8 U.S.C. §
1101(a)(42).
ANTONIO V. GARLAND 11
asylum. 7 A single member of the BIA affirmed the IJ without
opinion under 8 C.F.R. § 1003.1(e)(4).
II. JURISDICTION
We have jurisdiction to review Antonio’s final order of
removal under 8 U.S.C. § 1252(a)(1). “We have jurisdiction
to review the denial of an asylum application when a
petitioner raises a question of law, including mixed
questions of law and fact.” Perdomo v. Holder, 611 F.3d
662, 665 (9th Cir. 2010).
III. STANDARD OF REVIEW
“Where, as here, the BIA summarily adopts the IJ’s
decision without opinion pursuant to 8 C.F.R. §
1003.1(e)(4), we ‘review the IJ’s decision as if it were the
BIA’s decision.’” Ren v. Holder, 648 F.3d 1079, 1083 (9th
Cir. 2011) (quoting Zheng v. Ashcroft, 397 F.3d 1139, 1143
(9th Cir. 2005)). We review de novo whether a group
constitutes a “particular social group” under the Immigration
and Nationality Act (“INA”). Barbosa v. Barr, 926 F.3d
1053, 1059 (9th Cir. 2019). We review “for substantial
evidence the [agency’s] determination that a petitioner has
failed to establish eligibility for asylum or withholding of
removal,” including the “determination that a petitioner’s
past harm does not amount to past persecution.” Sharma v.
Garland, 9 F.4th 1052, 1060 (9th Cir. 2021) (cleaned up). 8
7
The IJ also denied her claim for withholding of removal and CAT
protection. Because Antonio offers no substantive argument on the
denial of CAT protection, we consider that claim waived. Martinez-
Serrano v. I.N.S., 94 F.3d 1256, 1259 (9th Cir. 1996).
8
As discussed in Flores Molina v. Garland, 37 F.4th 626, 633 n.2 (9th
Cir. 2022), the standard of review for past persecution is currently
unsettled. Compare Kaur v. Wilkinson, 986 F.3d 1216, 1221 (9th Cir.
12 ANTONIO V. GARLAND
Under this “‘highly deferential’ standard,” we “must accept
‘administrative findings’ as ‘conclusive unless any
reasonable adjudicator would be compelled to conclude to
the contrary.’” Garland v. Ming Dai, 141 S. Ct. 1669, 1677
(2021) (quoting Nasrallah v. Barr, 140 S. Ct. 1683, 1692
(2020), and 8 U.S.C. § 1252(b)(4)(B)).
IV. DISCUSSION
To qualify for asylum based on past persecution, an
applicant must establish that: “(1) [her] treatment rises to the
level of persecution; (2) the persecution was on account of
one or more protected grounds; and (3) the persecution was
committed by the government, or by forces that the
government was unable or unwilling to control.” Bringas-
Rodriguez, 850 F.3d at 1062. We review each prong in turn.
A. Past Persecution
Persecution is “the infliction of suffering or harm upon
those who differ . . . in a way regarded as offensive.” Lanza
v. Ashcroft, 389 F.3d 917, 934 (9th Cir. 2004) (quoting
Korablina v. I.N.S., 158 F.3d 1038, 1043 (9th Cir. 1998)).
“[P]ersecution . . . is ‘an extreme concept that does not
include every sort of treatment our society regards as
2021) (reviewing de novo whether particular acts constitute persecution),
with Sharma v. Garland, 9 F.4th 1052, 1060 (9th Cir. 2021) (applying
substantial evidence standard). We need not “discuss the nuances of the
two standards” because Antonio’s harm amounts to persecution even
under the more deferential “substantial evidence” standard. See Flores
Molina, 37 F.4th at 633 n.2; see also Singh v. Garland, 48 F.4th 1059,
1066–67 (9th Cir. 2022) (noting disagreement about the proper standard
of review and reversing a BIA finding of no past persecution even under
the more deferential substantial evidence standard).
ANTONIO V. GARLAND 13
offensive.’” Id. (quoting Nagoulko v. I.N.S., 333 F.3d 1012,
1016 (9th Cir. 2003)).
Antonio’s neighbors “threatened that if [she] dressed [in
men’s clothing] they would get together and burn [her] down
and whip [her].” They specifically told her that if she did
not leave, they would kill her. The IJ discussed in her order
how Antonio’s community “told her to remove her clothes
or else burn.” The IJ’s conclusion that this harassment
amounted to “simply threats,” failed to consider that this
Court has “repeatedly held that threats may be compelling
evidence of past persecution, particularly when they are
specific and menacing and are accompanied by . . . violent
confrontations, near-confrontations and vandalism.”
Mashiri v. Ashcroft, 383 F.3d 1112, 1119 (9th Cir. 2004).
Indeed, although the government correctly argues that there
is no “blanket rule that in every case threats, without more,
compel a finding of past persecution,” “[d]eath threats alone
can constitute persecution.” Kaur, 986 F.3d at 1227; see
also Navas v. I.N.S., 217 F.3d 646, 658 (9th Cir. 2000).
In this case, the record reveals much more than threats
alone. A crowd met Antonio at her workplace and
threatened to lynch and burn her if she did not remove the
men’s clothing. Her neighbors told her husband they
believed she was bisexual or lesbian, and “even spoke with
[her] grandparents,” who were “scared for [her] safety.” The
community took her to the police because they perceived her
to be a lesbian. We have held that the frequency, escalation,
and seriousness of threats, as well as the fact that persecutors
threatened a petitioner in close confrontations and
confronted petitioner’s family, can be sufficient to compel
the conclusion that the threats rise to the level of persecution.
See Ruano v. Ashcroft, 301 F.3d 1155, 1160–61 (9th Cir.
2002). That is the case here.
14 ANTONIO V. GARLAND
Antonio also experienced actual violent attacks. During
her credible fear interview, she told the asylum officer that
she was whipped by her uncles “frequently because they
wanted [her] to give them food and money” and that her
uncles “insulted [her] about being a lesbian.” Her uncles
hurt her “[m]any times,” starting “five months” before her
interview. Cf. Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th
Cir. 2003) (denying a claim for past persecution based on
physical abuse that occurred only one time). In his report
finding Antonio’s fear credible, the asylum officer
summarized Antonio’s claim as alleging that “people from
[her] village and [her] family members are motivated to
harm [her] with at least one central reason being that they
believe that [she is] a member of the particular social group
that is lesbian women in Guatemala.” Although the record
does not reveal the extent of the injuries Antonio sustained
from these beatings, “we do not require severe injuries to
meet the serious-harm prong of the past-persecution
analysis.” Singh, 48 F.4th at 1068 (citing Flores Molina, 37
F.4th at 636). Rather, “‘it is the conduct of the persecutor’
that is relevant to evaluating whether past treatment rises to
the level of persecution—not ‘the level of harm’ or
‘subjective suffering’ the petitioner experienced.” Flores
Molina, 37 F.4th at 636 (quoting Kaur, 986 F.3d at 1226). 9
Taken together, the death threats, mob violence,
involuntary transport to the police station, and repeated
whipping by her uncles 10 compel a conclusion contrary to
9
Although Antonio’s counsel never raised these beatings before the IJ,
they were nevertheless in the record as part of Antonio’s testimony to
the asylum officer.
10
The record is unclear whether the repeated whippings by the uncles
were on account of Antonio being perceived as a lesbian. And, as noted,
ANTONIO V. GARLAND 15
the IJ’s determination. See Borja v. I.N.S., 175 F.3d 732,
736–37 (9th Cir. 1999) (en banc), superseded by statute on
other grounds as stated in Parussimova v. Mukasey, 555
F.3d 734, 739–40 (9th Cir. 2009); Singh, 48 F.4th at 1067–
69 (finding persecution in part because the petitioner “was
forced to flee his home after being repeatedly assaulted” and
faced a death threat). 11 Under our case law, this behavior
amounts to past persecution.
B. Nexus Requirement
Having established that she experienced harm rising to
the level of persecution, Antonio must next satisfy the nexus
requirement, showing that she was persecuted “on account
of race, religion, nationality, membership in a particular
social group, or political opinion.” 8 U.S.C.
the IJ did not discuss the whippings at all. But the record at least admits
of such a finding. The uncles insulted her “about being a lesbian.” When
the asylum officer specifically asked Antonio whether her uncles “ever
start[ed] calling [her a] lesbian,” she responded, “[T]hat is what they said
the most.” The asylum officer summarized Antonio’s testimony by
stating that her family was motivated to harm her at least in part because
they perceived her to be a lesbian.
11
Antonio’s decision to flee Guatemala to escape persecution is itself
relevant to our analysis. “[A]s we have consistently recognized, being
forced to flee from one’s home in the face of an immediate threat of
severe physical violence or death is squarely encompassed within the
rubric of persecution . . . .” Mendoza-Pablo v. Holder, 667 F.3d 1308,
1314 (9th Cir. 2012); see also Flores Molina, 37 F.4th at 633–34, 634
n.3;; Knezevic v. Ashcroft, 367 F.3d 1206, 1211–12 (9th Cir. 2004).
Antonio explained that after the community brought her to the police,
“[the community] never left [her] in peace,” and her “grandfather cried
because he was afraid they would do something bad to [her] and [she]
was also very afraid, of the death threats,” such that she “started to leave
[her] country because that is what [her] neighbors . . . wanted [her] to
[do].”
16 ANTONIO V. GARLAND
§ 1101(a)(42)(A) (emphasis added); see Fon v. Garland, 34
F.4th 810, 813 (9th Cir. 2022). Here, Antonio alleges
membership in a particular social group. 12 She must
demonstrate both that she belongs to such a group and that
her membership was “at least one central reason for [her]
persecution.” Zetino v. Holder, 622 F.3d 1007, 1015 (9th
Cir. 2010) (citing 8 U.S.C. § 1158(b)(1)(B)(i)).
Antonio’s counsel proposed this particular social group
to the IJ: “wom[e]n in Guatemala who are perceived to have
male tendencies and are seen as dangerous to the
community.” The IJ found this articulation too “amorphous”
for the court to “fit[] within the particular social group
analysis.” The IJ reasoned that “style of her dress is not an
immutable characteristic to be considered under a particular
social group,” and that “this is not a gender issue” or a
“sexual orientation issue” because Antonio stated she was
not a lesbian.
This finding, however, ignores that Antonio’s arguments
before both the IJ and the BIA reasonably proposed a
different particular social group: “women in Guatemala who
are perceived to be lesbian.” 13 During her credible fear
12
Although the INA does not define “particular social group,” we have
said that the term refers to a group that is “united by a voluntary
association, including a former association, or by an innate characteristic
that is so fundamental to the identities or consciences of its members that
members either cannot or should not be required to change it.”
Hernandez-Montiel v. I.N.S., 225 F.3d 1084, 1093 (9th Cir. 2000),
overruled on other grounds by Thomas v. Gonzales, 409 F.3d 1177 (9th
Cir. 2005) (en banc).
13
Antonio’s proposed particular social group has evolved somewhat, and
she could have been clearer in her various presentations. But the heart
of her claim was always that she was persecuted because the villagers
ANTONIO V. GARLAND 17
interview, Antonio stated that although she is not a lesbian,
“people can think that . . . [a] person is perhaps a lesbian.”
At the hearing before the IJ, her counsel noted that she was
“perceived to have male tendencies.” In the notice of appeal
to the BIA, Antonio reiterated that she was persecuted “for
dressing like a boy” and that “the town believed [her] to be
a lesbian.” Her brief to the BIA notes that her persecution
was based on “gender roles” and that “her claim was based
on the perception that the community-at-large had of her
being a lesbian because of her manner of dress.” The brief
further predicated Antonio’s claim for asylum on the
“perception that she was a lesbian, which went against the
ingrained principles of gender roles in Guatemala, and what
the community expect[s] its women to dress like, behave like
and be like.” The record demonstrates that Antonio
sufficiently proposed the social group of women in
Guatemala that are perceived as lesbian.
“IJs and the BIA are not free to ignore arguments raised
by a petitioner.” Sagaydak v. Gonzales, 405 F.3d 1035, 1040
(9th Cir. 2005). Failure to address a social group claim, or
failure to analyze such a claim under the correct legal
standard, “constitutes error and requires remand.” Rios v.
Lynch, 807 F.3d 1123, 1126 (9th Cir. 2015). Our decision
in Perdomo v. Holder is illustrative. 611 F.3d 662 (9th Cir.
2010). There, a petitioner “sought asylum based on her fear
of persecution as a young woman in Guatemala.” Id. at 663.
The petitioner alleged a particular social group “consisting
of women [in Guatemala] between the ages of fourteen and
forty.” Id. at 664. The IJ determined that the petitioner
credibly feared persecution, but declined to recognize her
perceived her to be a lesbian. Her proposed social group is clear enough
to allow the agency to conduct the required social group inquiry.
18 ANTONIO V. GARLAND
proposed social group. Id. at 664–65. The BIA affirmed,
concluding in part that the category of “women between the
ages of fourteen and forty who are Guatemalan and live in
the United States” and the petitioner’s revised category of
“all women in Guatemala” were too broad to constitute
particular social groups. Id. at 665, 668. We granted the
petition for review, “reject[ing] the notion that a persecuted
group may simply represent too large a portion of a
population to allow its members to qualify for asylum.” Id.at 669 (citing Singh v. I.N.S., 94 F.3d 1353, 1359 (9th Cir.
1996)).
Concluding that the BIA erred in its social group
analysis, the Perdomo panel explained “that under the
ordinary remand rule, the agency should be given an
opportunity in the first instance to make legal determinations
entrusted to it by Congress.” Id. (citing Gonzales v. Thomas,
547 U.S. 183, 185 (2006)). Neither the BIA nor this Court
had previously recognized a social group of women in
Guatemala. Id. at 667–69. The panel emphasized that the
ordinary remand rule is “particularly applicable” in the
context of social group analysis because the term “particular
social group” is “amorphous.” Id. at 669 (cleaned up)
(quoting Ramos-Lopez v. Holder, 563 F.3d 855, 859 (9th Cir.
2009), abrogated on other grounds by Henriquez-Rivas v.
Holder, 707 F.3d 1081, 1093 (9th Cir. 2013) (en banc)).
Accordingly, the panel remanded “for the BIA to determine
in the first instance whether women in Guatemala constitute
a particular social group, and, if so, whether [the petitioner]
demonstrated a fear of persecution ‘on account of’ her
membership in such a group.” Id. at 669 (citing Thomas, 547
U.S. at 185).
Our course here must be the same. We have concluded
that the IJ erred in construing Antonio’s proposed social
ANTONIO V. GARLAND 19
group as “manner of dress” when it was in fact “women in
Guatemala who are perceived to be lesbian.” For the reasons
explained above, Antonio’s manner of dress was one reason
her community associated her with the relevant proposed
social group, not the basis of the group itself. Thus, the
agency failed to conduct its particular social group analysis
with respect to the correct group—women perceived to be
lesbians.
Neither our Court in a published opinion nor the BIA has
explicitly recognized perceived or imputed sexual
orientation as a cognizable social group, though we have
discussed the issue. Our precedent establishes that “[r]ape
and sexual abuse due to a person’s gender identity or sexual
orientation, whether perceived or actual, certainly rises to
the level of torture for CAT purposes.” Avendano-
Hernandez v. Lynch, 800 F.3d 1072, 1079 (9th Cir. 2015)
(emphasis added); see also Vitug v. Holder, 723 F.3d 1056,
1064 (9th Cir. 2013) (reversing the BIA’s withholding of
removal determination in part because the BIA ignored the
IJ’s finding that the petitioner “was harassed and threatened
by the police because of his perceived sexual orientation”).
The agency has also “assumed that the abuse [a petitioner]
faced in his youth . . . qualifies as persecution due to his
perceived sexual orientation, creating a ‘presumption’ that
he would be persecuted in the future as well.” Iraheta-
Martinez v. Garland, 12 F.4th 942, 955 (9th Cir. 2021)
(quoting 8 C.F.R. § 1208.16(b)(1)(i)). And at least two of
our unpublished cases recognize “perceived sexual
orientation” as a cognizable social group. See Cruz Lopez v.
Garland, 849 F. App’x 186, 190 (9th Cir. 2021); see also
Pozos v. Gonzales, 141 F. App’x 629, 631, 631 n.1 (9th Cir.
2005) (referring to petitioner’s “perceived homosexuality”).
20 ANTONIO V. GARLAND
But, again, neither a published opinion from our Court, nor
any decision from the BIA, does so.
Thus, we grant Antonio’s petition for review and remand
for the agency to determine: (1) whether women in
Guatemala perceived to be lesbian constitute a particular
social group; and (2) if so, whether Antonio’s persecution
was “on account of” her membership in that group. See
Perdomo, 611 F.3d at 669; 8 U.S.C. § 1101(a)(42). 14
C. Government Involvement or Acquiescence
The final inquiry is whether Antonio’s persecution was
committed by the government or by forces that the
government was unwilling or unable to control. See
Madrigal v. Holder, 716 F.3d 499, 506–07 (9th Cir. 2013). 15
14
We note that Antonio’s community threatened to burn her unless she
removed the men’s clothing. They told her that if she didn’t leave, they
would kill her, because “they did not want any lesbian women in the
village.” And they took her to the police, and met her at her workplace
to lynch her, presumably for this same reason. She “was dressing like a
man to find work” to support her family. Antonio’s “grandparents . . .
told [her] not to work so the community would not hurt [her].” Her
uncles, who frequently whipped her, “insulted” her about being a
lesbian—“that is what they said the most.” One of her family members
stated that Antonio experienced “discrimination and threats because she
dressed as a man.” The asylum officer summarized Antonio’s credible
fear interview testimony as stating that “people from your village and
your family members are motivated to harm you with at least one central
reason being that they believe that you are a member of the particular
social group that is lesbian women in Guatemala.” And the local court
denounced the behavior Antonio complained of as “crimes of
[d]iscrimination, insult and threats.”
15
The Government argues that Antonio waived her challenge to this
prong. But we exercise our discretion to review the IJ’s decision on this
issue because “the government briefed it, and thus suffers no prejudice
from [Antonio’s] failure to properly raise the issue.” Singh v. Ashcroft,
ANTONIO V. GARLAND 21
The IJ’s analysis focused on Antonio’s complaint to the
Justice of the Peace and the Justice of the Peace’s decision
to remit the matter for criminal investigation. But this
decision does not end the inquiry. No record evidence
indicates whether the criminal referral by the Justice of the
Peace led to any arrests, criminal prosecution, or other action
by authorities to minimize the threats against Antonio.16
When the government has promised future action but taken
none, we have concluded the government was either unable
or unwilling to exercise such control. See J.R. v. Barr, 975
F.3d 778, 782-83 (9th Cir. 2020).
Further, “where there is any indication that the [agency]
did not consider all of the evidence before it . . . the decision
cannot stand. Such indications include . . . failing to mention
highly probative or potentially dispositive evidence.” Cole
v. Holder, 659 F.3d 762, 771–72 (9th Cir. 2011). 17 Here, the
IJ did not explore Antonio’s statement that the mayor of her
village “would be behind [her neighbors] if they try to kill
361 F.3d 1152, 1157 n.3 (9th Cir. 2004). The issue is exhausted because
Antonio raised and argued the past persecution claim in her brief before
the BIA. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009). We
note that Antonio did not argue to the agency, and does not contend on
appeal, that government actors were directly involved in her persecution.
Rather, she claims that local police were unwilling to address her
persecution.
16
As submitted in her I-589 application, Antonio left Guatemala on
January 2, 2014, shortly after the referral on December 28, 2013. We
leave it to the agency to determine the relevance, if any, of this fact.
17
Again, we note that Antonio’s counsel did not raise much of the
evidence discussed below at the hearing before the IJ or in briefing on
appeal to the BIA. Nevertheless, this evidence was in the record before
the IJ and is “highly probative” in light of the relevant particular social
group. Cole, 659 F.3d at 771–72.
22 ANTONIO V. GARLAND
[her].” Antonio told the asylum officer that she fears the
mayor the most because “[h]e is the one who has the last
decision whether to kill me or not.” The IJ’s omission of this
evidence in her order suggests that the IJ may have failed to
consider it.
Second, the record shows that the police took some
action to end her harassment temporarily but did not make
any arrests—even when the police arrived at the scene of a
crowd threatening to kill Antonio. The IJ did not explicitly
note this evidence, including evidence that despite police
awareness, the death threats continued. We find nothing in
the record to suggest that the police took any specific action
to address Antonio’s persecution. See Mashiri, 383 F.3d at
1115 (finding persecution by forces the government was
unable or unwilling to control where police “responded to
the scene” of persecution but “never made any arrests”).
And Antonio told the asylum officer that when she reported
her harassment to the police, “they didn’t pay attention.”
“[T]hey told me I have to tell them that I am not the kind of
person that they think that I am.” 18 The record also contains
a statement from Antonio’s relative that even following
complaints “against the aggressors, they still bothered”
Antonio. No matter the level of actual police involvement,
the record demonstrates that Antonio’s harassment
continued after police were made aware.
Third, the IJ did not discuss that Antonio’s uncles
whipped her. The record is unclear about whether Antonio
18
This at least suggests the possibility that the police not only refused to
act, but also refused to act because of their perception of her sexuality.
As noted above, the record could be read as attributing this statement to
Antonio’s uncles, but in context, it appears that she is referring to the
police.
ANTONIO V. GARLAND 23
informed the local police of these beatings. If the police took
no steps to stop the violence she experienced at her uncles’
hands despite knowing about it, this could show that the
police were unwilling or unable to control the harm Antonio
faced.
Finally, though the IJ considered the Country Condition
Report as to Antonio’s CAT claim, the report notes that
Guatemala’s antidiscrimination laws do not apply to LGBTI
individuals who often face police abuse. The government’s
efforts to address widespread discrimination against LGBTI
people have been “minimal.” The IJ found the report
irrelevant because Antonio stated she is not a lesbian. But
given the reasons for our remand, the agency might view this
evidence differently.
For these reasons, we remand this issue. We recognize
that the agency may not need to reach this issue, depending
on its social group and nexus determinations. But in light of
our articulation of Antonio’s proposed particular social
group, the agency should reconsider, should it reach the
issue, whether the probative record evidence discussed
above constitutes governmental inability or unwillingness to
address Antonio’s persecution. See I.N.S. v. Orlando
Ventura, 537 U.S. 12, 16 (2002). The BIA may remand to
the IJ for further factfinding as necessary. See id. at 18.
V. CONCLUSION
The agency erred in finding that the harm Antonio
suffered did not rise to the level of persecution. The agency
also failed to analyze the correct social group and may have
failed to analyze all probative evidence regarding the
government’s acquiescence in Antonio’s persecution.
Accordingly, we grant the petition for review and remand for
24 ANTONIO V. GARLAND
further proceedings consistent with this opinion.
PETITION FOR REVIEW GRANTED;
REMANDED.
SANCHEZ, Circuit Judge, concurring:
I concur in the majority’s well-reasoned opinion. I write
separately to address the question of perceived or imputed
sexual orientation and whether such group should be
recognized as a “particular social group” for purposes of
asylum relief under the Immigration and Nationality Act
(“INA”). The majority correctly points out that no published
authority from our court or the Board of Immigration
Appeals (“BIA”) has expressly recognized imputed sexual
orientation as a cognizable social group, and therefore
remand is warranted to allow the BIA to pass on this
question in the first instance. See Perdomo v. Holder, 611
F.3d 662, 669 (9th Cir. 2010). Under longstanding circuit
and BIA precedent, the answer to this question seems clear.
We have long recognized homosexual applicants as
members of a particular social group, as has the BIA. See
Karouni v. Gonzales, 399 F.3d 1163, 1172 (9th Cir. 2005);
Matter of Toboso-Alfonso, 20 I. & N. Dec. 819, 822–23 (BIA
1990). And the BIA has consistently held that applicants
persecuted for imputed grounds are eligible for asylum. In
Re S-P-, 21 I. & N. Dec. 486, 489–90 (BIA 1996) (citing
Matter of A-G-, 19 I. & N. Dec. 502, 507 (BIA 1987)); see
also Matter of T-M-B-, 21 I. & N. Dec. 775, 777 (BIA 1997)
(an applicant for asylum must show “that the harm was
motivated, at least in part, by an actual or imputed protected
ground”) (emphasis added). In particular, the BIA has
emphasized the importance of the “perception of the
ANTONIO V. GARLAND 25
persecutor” in asylum claims that involve persecution on
account of imputed protected characteristics:
For example, an individual may present a
valid asylum claim if he is incorrectly
identified as a homosexual . . . in a society
that considers homosexuals a distinct group
united by a common immutable
characteristic. In such a case, the social group
exists independent of the persecution, and the
perception of the persecutor is relevant to the
issue of nexus (whether the persecution was
or would be on account of the applicant’s
imputed homosexuality).
Matter of M-E-V-G-, 26 I. & N. Dec. 227, 243 (BIA 2014).
This Court has adopted the same reasoning in other types
of asylum claims. For example, we have held that to show
persecution on account of political opinion, a petitioner need
not prove that she “actually held a political opinion or acted
in furtherance of it,” but rather must provide evidence “that
the persecutor was motivated by a belief that the petitioner
held the political opinion.” Khudaverdyan v. Holder, 778
F.3d 1101, 1106 (9th Cir. 2015) (citing I.N.S. v. Elias-
Zacarias, 502 U.S. 478, 483 (1992)). We have applied the
same precept to imputed religious belief. See Popova v.
I.N.S., 273 F.3d 1251, 1258 (9th Cir. 2001) (“To establish a
correlation between [the petitioner’s] persecution and her
political opinion and religion, she must show, by direct or
circumstantial evidence, her persecutors’ motive.”). And we
have held that persecution on account of membership in a
particular social group includes persecution on account of
perceived membership in that group. See Thomas v.
26 ANTONIO V. GARLAND
Gonzales, 409 F.3d 1177, 1188 (9th Cir. 2005), cert.
granted, rev’d on other grounds, 547 U.S. 183 (2006).
It is no leap to conclude that imputed homosexuality and
homosexuality alike confer membership in the particular
social group of homosexuals. Indeed, as the majority
recognizes, prior panels have applied BIA and circuit
precedent to arrive at that conclusion in unpublished
dispositions. See Pozos v. Gonzales, 141 F. App’x 629, 631
n.1 (9th Cir. 2005) (“There is . . . no longer any question that
one can be eligible for asylum as a result of persecution he
suffers on account of imputed homosexuality.”); see also
Cruz Lopez v. Garland, 849 F. App’x 186, 190 (9th Cir.
2021) (“[T]he record compels the conclusion that [the
petitioner’s] perceived sexual orientation was both ‘a central
reason’ and ‘a reason’ for his persecution.”).
The Immigration Judge in this case nonetheless
concluded that because Antonio did not attest to being a
lesbian, the persecution she suffered in Guatemala was “not
a sexual orientation issue”: It was instead no more than a
“dress issue.” This finding focused exclusively on Antonio,
assigning no weight to the perceptions of her persecutors.
But to establish persecution on account of a protected
characteristic, Antonio was not obligated to prove that she is
homosexual. Rather, she was required to provide evidence
that her persecutors were “motivated by a belief” that she is.
See Khudaverdyan, 778 F.3d at 1106. Faithful application
of the foregoing precedent should lead the BIA to the same
conclusion.