Andrea Castillanos Retana v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 23, 2021
• Docket: 19-72153
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 23 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ANDREA CASTILLANOS RETANA, No. 19-72153

Petitioner, Agency No. A202-131-045

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted April 8, 2021 Pasadena, California

Before: W. FLETCHER, WATFORD, and HURWITZ, Circuit Judges.

Andrea Castillanos Retana petitions for review of a Board of Immigration

Appeals (BIA) decision dismissing her appeal from an order of an immigration

judge (IJ) denying her application for asylum, withholding of removal, and

protection under the Convention Against Torture (CAT). We grant Castillanos

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Page 2 of 4

Retana’s petition as to the denial of asylum and withholding of removal based on

gang-related threats. We deny the petition as to the remainder of her claims.

1. The BIA’s determination that Castillanos Retana failed to establish past

persecution is not supported by substantial evidence. Although “unfulfilled

threats, without more” generally do not establish past persecution, we have

recognized that, in “a small category of cases,” threats may be “so menacing” as to

constitute past persecution on their own. Lim v. INS, 224 F.3d 929, 936 (9th Cir.

2000). Castillanos Retana’s encounter falls within this small category of cases.

She was not merely threatened with death, as in some of our past cases. Rather,

gang members delivered their threat in a face-to-face encounter with Castillanos

Retana in which one gang member grabbed her arm and another pointed a gun at

her head. That conduct was sufficiently menacing to rise to the level of

persecution. See Ruano v. Ashcroft, 301 F.3d 1155, 1160–61 (9th Cir. 2002)

(holding that threats constituted past persecution where petitioner was “closely

confronted” by armed men). Castillanos Retana fled El Salvador just three days

after the encounter and she did not leave her house in the intervening days. That

the gang members did not follow through on their threat is of little probative value

in assessing the threat’s severity.

Because the BIA erred in finding that Castillanos Retana failed to establish

past persecution, it did not apply the correct burden of proof in assessing her fear Page 3 of 4

of future persecution and the possibility of relocation. Castillanos Retana should

have been afforded the presumption of a well-founded fear of future persecution

and the government should have borne the burden of rebutting that presumption

and demonstrating that relocation was reasonable. See 8 C.F.R.

§§ 1208.13(b)(1)(i)(B), (b)(1)(ii), 1208.16(b)(1)(i)(B), (b)(1)(ii). We therefore

remand for the BIA to reconsider Castillanos Retana’s eligibility for asylum and

withholding of removal after affording the presumption and applying the correct

burden of proof.

2. The BIA’s decision upholding the IJ’s denial of Castillanos Retana’s

asylum and withholding of removal claims based on the physical and sexual abuse

she suffered as a child is supported by substantial evidence. The IJ properly

concluded that Castillanos Retana failed to establish an objectively reasonable fear

of future persecution based on this abuse because she is now an adult capable of

living apart from her father and stepfather.

3. Substantial evidence also supports the BIA’s conclusion that Castillanos

Retana is not eligible for CAT protection. Generalized evidence that gang-related

violence and violence toward women are common in El Salvador is insufficient to

show that Castillanos Retana is “more likely than not” to be tortured if returned to

El Salvador. See 8 C.F.R. § 1208.16(c)(2); Delgado-Ortiz v. Holder, 600 F.3d

1148, 1152 (9th Cir. 2010). Page 4 of 4

PETITION FOR REVIEW GRANTED in part and DENIED in part;

CASE REMANDED.

The parties shall bear their own costs.