Trinidad Silvestre-Mendoza v. Jefferson Sessions

FILED
NOT FOR PUBLICATION
JUL 03 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TRINIDAD SILVESTRE-MENDOZA No. 15-71961
and GERMAN BALTAZAR-
SILVESTRE, Agency Nos. A206-675-911
A206-675-912
Petitioners,
v. MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted June 5, 2018
Pasadena, California
Before: WARDLAW and PAEZ, Circuit Judges, and CHHABRIA,** District
Judge.
Trinidad Silvestre-Mendoza (“Silvestre”), a native and citizen of Guatemala,
petitions for review of the Board of Immigration Appeals’ (“BIA”) dismissal of her
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Vince Chhabria, United States District Judge for the
Northern District of California, sitting by designation.
appeal of an immigration judge’s (“IJ”) denial of her application for asylum and
withholding of removal.1 We review the BIA’s legal determinations de novo and
its factual findings for substantial evidence, Henriquez-Rivas v. Holder, 707 F.3d
1081, 1087 (9th Cir. 2013) (en banc), and we grant the petition and remand.
The BIA found that Silvestre failed to show that “young Guatemalan
females who have suffered violence due to female gender” were socially distinct.
That determination is supported by substantial evidence. However, the BIA should
have considered whether “Guatemalan women” is a particular social group.
“Guatemalan women” subsumes “young Guatemalan females who have suffered
violence due to female gender,” and it is the gravamen of Silvestre’s persecution
claim. In her briefing to the IJ and BIA, Silvestre-Mendoza frequently referenced
violence against women generally in Guatemala rather than violence against young
women specifically. Cf. Rios v. Lynch, 807 F.3d 1123, 1126 (9th Cir. 2015).
Additionally, Silvestre’s evidence attests to pervasive femicide in Guatemala,2
along with the government’s attempts to combat it through specialized courts for
1
Before the IJ, Silvestre also sought relief under the Convention Against
Torture (“CAT”), but she did not challenge the IJ’s denial of CAT relief before the
BIA. In addition, Silvestre’s son, German Baltazar-Silvestre, filed an application
for asylum, withholding of removal, and CAT relief, which relies solely on his
mother’s application.
2
Femicide is defined as violence, often murder, that occurs because the
victim is a woman, rather than for any other specific reason.
2
femicide victims to seek justice, police officers available around the clock and
allocated specifically to receive and respond to reports of femicide, special
compensation for femicide victims, and mandatory sentences for perpetrators.3
This evidence provides some support for the social group “Guatemalan women”
being socially distinct, as we have recognized that legislation passed to protect a
specific group can be evidence that the society in question views members of that
group as distinct. See Henriquez-Rivas, 707 F.3d at 1092. Accordingly, we
remand for the BIA to consider in the first instance4 whether “Guatemalan women”
constitutes a particular social group.
The BIA also erred in affirming the IJ’s determination that Silvestre’s failure
to report abuse to Guatemalan police precludes her from showing that the
Guatemalan government is unwilling or unable to protect her. “[W]e do not deem
the failure to report to authorities outcome determinative, and we consider all
3
Silvestre also submitted extensive evidence demonstrating that such efforts
have been unsuccessful, due at least in part to governmental unwillingness to
investigate femicide and enforce the laws against perpetrators. Accordingly, we
disagree with the government’s position at oral argument that the record
demonstrates that Guatemala has mitigated femicide.
4
After this case was argued and submitted on June 5, 2018, Attorney
General Sessions issued his decision in Matter of A-B-, 27 I. & N. Dec. 316 (A.G.
2018) on June 11, 2018. Whether that decision has any bearing on the question
remanded here should be considered by the parties and BIA upon remand.
3
evidence in the record.” Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1069 (9th
Cir. 2017) (en banc).
PETITION GRANTED; REMANDED.
4