Andrea Manrique Yaruro v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 24, 2020
• Docket: 18-72349
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 24 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ANDREA MANRIQUE YARURO, No. 18-72349

Petitioner, Agency No. A213-017-169

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Argued and Submitted March 2, 2020 Pasadena, California

Before: HURWITZ and FRIEDLAND, Circuit Judges, and KORMAN,** District Judge.

Andrea Manrique Yaruro, a native and citizen of Colombia, petitions for

review of a decision of the Board of Immigration Appeals (“BIA”), which

dismissed her appeal of an order of an immigration judge (“IJ”) denying her

applications for asylum, withholding of removal under 8 U.S.C. § 1231(b)(3), and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. protection under the Convention Against Torture (“CAT”). We grant the petition

in part, dismiss the petition in part, and deny the petition in part.

1. The agency evaluated Manrique Yaruro’s asylum and withholding of

removal claims under the wrong legal standard. The IJ held that Manrique Yaruro

had established past persecution. This triggered a rebuttable presumption of a

well-founded fear of future persecution. 8 C.F.R. § 208.13(b)(1). When the

government attempts to rebut this presumption with country conditions evidence

indicating that there may no longer be widespread persecution, the agency “must

ask whether the [government] has shown through record evidence that the

individual who suffered past persecution is among the general population that is

not suffering from a ‘sustained pattern’ of human rights violations, or whether the

applicant is among the unlucky few who are most vulnerable to abuse.” Lal v. INS,

255 F.3d 998, 1011 (9th Cir. 2001). This “assessment must take account of the

specific attributes of the past persecution on record.” Id.

The BIA and IJ failed to consider how generalized country conditions

evidence related to the most relevant aspects of Manrique Yaruro’s individualized

circumstances and experiences. The analysis should have considered whether the

peace accord between FARC and the Colombian government made it unlikely that

Manrique Yaruro would suffer future persecution from the specific group of FARC

members who persecuted her in the past. In particular, the agency’s analysis

2 should have accounted for the evidence that Manrique Yaruro was attacked by one

of the FARC members in 2016, that she subsequently received further threats that

caused her to leave Colombia, and that her family received a threat against her life

months after the peace accord was announced. We therefore grant Manrique

Yaruro’s petition with respect to her asylum and withholding of removal claims,

and remand to the agency to apply the correct legal standard in the first instance.

See Lopez v. Ashcroft, 366 F.3d 799, 805-07 (9th Cir. 2004).1

2. We lack jurisdiction to consider Manrique Yaruro’s humanitarian asylum

claim because she did not raise this claim in her BIA briefing, see Abebe v.

Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en banc), and the BIA’s decision

did not address this claim on the merits. Manrique Yaruro contends that she was

not required to exhaust her humanitarian asylum claim, but we have already held

that a petitioner who fails to exhaust such a claim “cannot raise it before this

Court.” See Rodas-Mendoza v. INS, 246 F.3d 1237, 1240 (9th Cir. 2001).

3. The BIA did not err by concluding that Manrique Yaruro waived any

challenge to the IJ’s denial of CAT protection. Manrique Yaruro’s BIA briefing

did not argue that she was likely to be tortured with the acquiescence of the

government if removed to Colombia. Accordingly, the “BIA properly found that

1 We deny Manrique Yaruro’s motion for judicial notice as moot. On remand, the BIA is free “to reopen the record and to remand to the Immigration Judge as appropriate.” INS v. Ventura, 537 U.S. 12, 18 (2002) (per curiam).

3 [she] did not challenge the IJ’s determination that [she] was ineligible for

protection under the CAT.” Alanniz v. Barr, 924 F.3d 1061, 1068-69, 1069 n.8

(9th Cir. 2019).

Each party shall bear its own costs on appeal.

PETITION FOR REVIEW GRANTED IN PART, DISMISSED IN

PART, AND DENIED IN PART; REMANDED.