FILED NOT FOR PUBLICATION JUN 29 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANA GLORIA RODRIGUEZ DE No. 17-72022 AYALA, Agency No. A087-898-572 Petitioner,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted February 4, 2020** Pasadena, California
Before: IKUTA and CHRISTEN, Circuit Judges, and MARBLEY,*** District Judge.
* 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). *** The Honorable Algenon L. Marbley, United States Chief District Judge for the Southern District of Ohio, sitting by designation. Petitioner Ana Rodriguez de Ayala seeks review of the Board of
Immigration Appeals decision denying her applications for asylum, withholding of
removal, and relief under the Convention Against Torture (CAT). We have
jurisdiction pursuant to 8 U.S.C. § 1252(a), and we grant the petition. Because the
parties are familiar with the facts, we recite only those facts necessary to decide the
issues on appeal.
1. The Immigration Judge (IJ) found that although Rodriguez established
past persecution on account of her membership in a particular social group, she
failed to demonstrate that the government of El Salvador was unable or unwilling
to protect her. That is the sole issue on appeal related to her claims for asylum and
withholding, and we conclude that the record evidence compels the opposite
conclusion. See Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir.
2017) (en banc). Rodriguez credibly testified that when her husband threatened to
kill her, he warned her that she “shouldn’t even dare to call the police because he
was the police,” and the police would not pay attention to her. She further credibly
testified that the police in her community “help each other” and “wouldn’t listen”
to her reports about her husband’s domestic violence. Petitioner’s husband thus
threatened that the police would not protect her, specifically because he was a
police officer.
2 The country conditions report corroborates Rodriguez’s credible testimony,
but the IJ and BIA ignored the most relevant portions of that evidence. The report
noted “high levels of impunity for crime and abuse of official authority,” a “high
level of domestic violence” and “violence and discrimination against women,” and
“widespread” incidents of rape and sex crimes against women. Although El
Salvador passed laws prohibiting domestic violence, the report made clear that “in
practice the government did not effectively enforce th[o]se provisions,” that
spousal rape was “not specifically addressed in the law,” that “[l]aws against rape
were not effectively enforced,” that “laws against domestic violence were not well
enforced, and cases were not effectively prosecuted,” and that overall, “[t]he
government’s efforts to combat domestic violence were minimally effective.” The
report further explained that domestic violence “was a widespread and serious
problem” that “was considered socially acceptable” and was largely underreported.
Significantly, Rodriguez testified that even when her adult daughter reported
Rodriguez’s husband’s abuse of their younger children and obtained a protective
order, the court subsequently “annulled” the order and returned Rodriguez’s
children to the custody of her husband, who continued to physically and
emotionally abuse them. Here, the evidence compels the conclusion that the
government was unable or unwilling to stop Rodriguez’s husband from continuing
3 to commit acts of domestic violence. Having established that the government of El
Salvador was unable or unwilling to protect her, Rodriguez is entitled to a
presumption of a well-founded fear of future persecution. See Mamouzian v.
Ashcroft, 390 F.3d 1129, 1135 (9th Cir. 2004). We remand for further proceedings
consistent with this disposition on Rodriguez’s asylum claim.
Eligibility for withholding of removal may similarly be established by
demonstrating “a presumption of fear of future persecution based on past
persecution.” See Tamang v. Holder, 598 F.3d 1083, 1091 (9th Cir. 2010) (citing 8
C.F.R. § 1208.16(b)(1)(i)). A petitioner is entitled to withholding of removal if she
demonstrates a “clear probability” that she would be subject to persecution upon
returning to her home country. Id. (quoting INS v. Stevic, 467 U.S. 407, 429–30
(1984)). The clear probability standard is more stringent than the well-founded
fear standard, id., but the IJ concluded that Rodriguez failed to demonstrate her
eligibility for withholding only because she failed to establish her eligibility for
asylum. We therefore remand for the BIA to reconsider Rodriguez’s withholding
claim.
2. On Rodriguez’s CAT claim, the record evidence compels the
conclusion that the IJ erred on prong one of the analysis by concluding that the
domestic abuse Rodriguez suffered did not rise to the level of torture. Torture is
4 “any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person” for specific reasons “such as punishing him or
her for an act he or she or a third person has committed or is suspected of having
committed.” 8 C.F.R. § 1208.18(a)(1). Rodriguez’s husband strangled her,
repeatedly raped her, and hit, kicked, and pushed her. He also verbally abused
Rodriguez, and emotionally and physically abused their children. The abuse
Rodriguez suffered rises to the level of torture, and because at least some of it was
meted out as punishment, it satisfies the requirements of § 1208.18.
PETITION GRANTED; REMANDED.
5 FILED Rodriguez de Ayala v. Barr, 17-72022 JUN 29 2020 IKUTA, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
This case is controlled by the standard of review. Because Rodriguez cannot
“show that the evidence [she] presented was so compelling that no reasonable
factfinder could fail to find” in her favor, INS v. Elias-Zacarias, 502 U.S. 478,
483–84 (1992) (emphasis added), we must uphold the BIA’s determination. I
therefore dissent.
To qualify for asylum or withholding of removal, an alien must show that
her persecution was or will be inflicted by the government or forces that the
government is “unable or unwilling to control.” Bringas-Rodriguez v. Sessions,
850 F.3d 1051
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FILED NOT FOR PUBLICATION JUN 29 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANA GLORIA RODRIGUEZ DE No. 17-72022 AYALA, Agency No. A087-898-572 Petitioner,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted February 4, 2020** Pasadena, California
Before: IKUTA and CHRISTEN, Circuit Judges, and MARBLEY,*** District Judge.
* 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). *** The Honorable Algenon L. Marbley, United States Chief District Judge for the Southern District of Ohio, sitting by designation. Petitioner Ana Rodriguez de Ayala seeks review of the Board of
Immigration Appeals decision denying her applications for asylum, withholding of
removal, and relief under the Convention Against Torture (CAT). We have
jurisdiction pursuant to 8 U.S.C. § 1252(a), and we grant the petition. Because the
parties are familiar with the facts, we recite only those facts necessary to decide the
issues on appeal.
1. The Immigration Judge (IJ) found that although Rodriguez established
past persecution on account of her membership in a particular social group, she
failed to demonstrate that the government of El Salvador was unable or unwilling
to protect her. That is the sole issue on appeal related to her claims for asylum and
withholding, and we conclude that the record evidence compels the opposite
conclusion. See Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir.
2017) (en banc). Rodriguez credibly testified that when her husband threatened to
kill her, he warned her that she “shouldn’t even dare to call the police because he
was the police,” and the police would not pay attention to her. She further credibly
testified that the police in her community “help each other” and “wouldn’t listen”
to her reports about her husband’s domestic violence. Petitioner’s husband thus
threatened that the police would not protect her, specifically because he was a
police officer.
2 The country conditions report corroborates Rodriguez’s credible testimony,
but the IJ and BIA ignored the most relevant portions of that evidence. The report
noted “high levels of impunity for crime and abuse of official authority,” a “high
level of domestic violence” and “violence and discrimination against women,” and
“widespread” incidents of rape and sex crimes against women. Although El
Salvador passed laws prohibiting domestic violence, the report made clear that “in
practice the government did not effectively enforce th[o]se provisions,” that
spousal rape was “not specifically addressed in the law,” that “[l]aws against rape
were not effectively enforced,” that “laws against domestic violence were not well
enforced, and cases were not effectively prosecuted,” and that overall, “[t]he
government’s efforts to combat domestic violence were minimally effective.” The
report further explained that domestic violence “was a widespread and serious
problem” that “was considered socially acceptable” and was largely underreported.
Significantly, Rodriguez testified that even when her adult daughter reported
Rodriguez’s husband’s abuse of their younger children and obtained a protective
order, the court subsequently “annulled” the order and returned Rodriguez’s
children to the custody of her husband, who continued to physically and
emotionally abuse them. Here, the evidence compels the conclusion that the
government was unable or unwilling to stop Rodriguez’s husband from continuing
3 to commit acts of domestic violence. Having established that the government of El
Salvador was unable or unwilling to protect her, Rodriguez is entitled to a
presumption of a well-founded fear of future persecution. See Mamouzian v.
Ashcroft, 390 F.3d 1129, 1135 (9th Cir. 2004). We remand for further proceedings
consistent with this disposition on Rodriguez’s asylum claim.
Eligibility for withholding of removal may similarly be established by
demonstrating “a presumption of fear of future persecution based on past
persecution.” See Tamang v. Holder, 598 F.3d 1083, 1091 (9th Cir. 2010) (citing 8
C.F.R. § 1208.16(b)(1)(i)). A petitioner is entitled to withholding of removal if she
demonstrates a “clear probability” that she would be subject to persecution upon
returning to her home country. Id. (quoting INS v. Stevic, 467 U.S. 407, 429–30
(1984)). The clear probability standard is more stringent than the well-founded
fear standard, id., but the IJ concluded that Rodriguez failed to demonstrate her
eligibility for withholding only because she failed to establish her eligibility for
asylum. We therefore remand for the BIA to reconsider Rodriguez’s withholding
claim.
2. On Rodriguez’s CAT claim, the record evidence compels the
conclusion that the IJ erred on prong one of the analysis by concluding that the
domestic abuse Rodriguez suffered did not rise to the level of torture. Torture is
4 “any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person” for specific reasons “such as punishing him or
her for an act he or she or a third person has committed or is suspected of having
committed.” 8 C.F.R. § 1208.18(a)(1). Rodriguez’s husband strangled her,
repeatedly raped her, and hit, kicked, and pushed her. He also verbally abused
Rodriguez, and emotionally and physically abused their children. The abuse
Rodriguez suffered rises to the level of torture, and because at least some of it was
meted out as punishment, it satisfies the requirements of § 1208.18.
PETITION GRANTED; REMANDED.
5 FILED Rodriguez de Ayala v. Barr, 17-72022 JUN 29 2020 IKUTA, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
This case is controlled by the standard of review. Because Rodriguez cannot
“show that the evidence [she] presented was so compelling that no reasonable
factfinder could fail to find” in her favor, INS v. Elias-Zacarias, 502 U.S. 478,
483–84 (1992) (emphasis added), we must uphold the BIA’s determination. I
therefore dissent.
To qualify for asylum or withholding of removal, an alien must show that
her persecution was or will be inflicted by the government or forces that the
government is “unable or unwilling to control.” Bringas-Rodriguez v. Sessions,
850 F.3d 1051, 1062 (9th Cir. 2017) (quoting Baghdasaryan v. Holder, 592 F.3d
1018, 1023 (9th Cir. 2010)). We can reverse the agency’s finding on this question
only if the record evidence “not only supports [the] conclusion” that the
government is unable or unwilling to control the persecutor, “but compels it.”
Elias-Zacarias, 502 U.S. at 481 n.1 (emphasis in original). To qualify for relief
under the Convention Against Torture (CAT), an alien must establish that she
“more likely than not” would be “tortured” in the country of removal. 8 C.F.R.
§ 208.16(c)(2). Again, we can reverse the agency’s finding only if we are
compelled to find to the contrary. Avendano-Hernandez v. Lynch, 800 F.3d 1072,
1078 (9th Cir. 2015). Here, the record does not compel us to overturn the agency. The record
includes the following evidence. Rodriguez’s husband, Jose, assaulted her
daughter, Ana, and one of their sons. Ana reported the incident to the police. In
March 2010, a court ruled that Jose’s violent acts “constitute acts of domestic
violence.” The court issued a six-month protective order prohibiting Jose from
threatening, harassing, or sharing a residence with Ana. The government gave Ana
a copy of the order so that she could seek help from nearby police if Jose violated
its terms. Pursuant to the order, Jose moved to his mother’s house and “did not
come back.” It is not clear whether (or why) the protective order was terminated.
Rodriguez testified that she did not know whether the order remained in effect, but
also testified that the order was “annulled.” If the court did annul the order, the
record does not explain the circumstances or the court’s reasoning.1
Based on the evidence that the government issued a protective order against
Jose, and Jose complied with it, the agency’s conclusion “that the government was
willing to take actions against perpetrators of domestic violence” was well
supported by the evidence. And this same evidence supports the agency’s rejection
1 Rodriguez testified that Jose obtained custody of their three sons in January 2011. Given that the restrictions in the March 2010 protective order were set to last for six months (i.e., until September 2010), this allegation sheds no light on whether or why the order was terminated.
2 of the claim that it was “more likely than not” that the government would
acquiesce in Jose’s acts of torture against Rodriguez. 8 C.F.R. § 208.16(c)(2). We
must uphold these conclusions, because we are not compelled to find otherwise.
The bare allegation that the protective order was annulled (even assuming that
occurred), without any explanation as to the reasons or circumstances, does not
compel a reasonable jurist to conclude that the government is unable or unwilling
to stop Jose’s violent conduct. And it is not enough to point to general statements
in the country conditions report, because they do not compel us to overturn the
agency’s contrary findings.
Because I would deny Rodriguez’s petition for review under this deferential
standard, I respectfully dissent.