Dania Maldonado-Andrade v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 14, 2020
• Docket: 17-71967
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 14 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DANIA MALDONADO-ANDRADE, No. 17-71967

Petitioner, Agency No. A098-115-483

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

Respondent.

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

Submitted February 3, 2020** Pasadena, California

Before: WARDLAW, NGUYEN, and HUNSAKER, Circuit Judges.

Dania Maldonado-Andrade (Maldonado) petitions for review of the Board of

Immigration Appeals’ (BIA) orders dismissing her appeal from the Immigration

Judge’s (IJ) denial of her application for withholding of removal and protection

under the Convention Against Torture (CAT). We have jurisdiction under 8

* 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). U.S.C. § 1252. We grant in part and deny in part the petition for review.

1. To be entitled to withholding of removal, Maldonado must “demonstrate

a clear probability of [future] persecution . . . on account of a statutorily protected

ground.” Fedunyak v. Gonzales, 477 F.3d 1126, 1130 (9th Cir. 2007); see also 8

U.S.C. § 1231(b)(3)(A).

“When an applicant is deemed credible, we . . . consider[] nexus issues to be

questions of law entitled to de novo review.” Baghdasaryan v. Holder, 592 F.3d

1018, 1022 n.4 (9th Cir. 2010). Even assuming Maldonado could establish

membership in a social group under Matter of A-R-C-G-, 26 I. & N. Dec. 388 (BIA

2014), or that her proposed group of “women in an abusive relationship in

Honduras who cannot leave that abusive relationship because of the way the

culture and government in Honduras treat domestic violence victims and because

her abuser is a powerful cartel member with ties to corrupt Honduran government

officials” was cognizable, the BIA correctly concluded that she failed to

demonstrate a nexus between her fear of future persecution and her membership in

these putative groups. Though Maldonado suffered severe sexual violence, there

is no evidence in the record to suggest that this sexual violence was perpetrated

against her on account of her abusive relationship with a cartel member with ties to

corrupt Honduran government officials. See Barajas-Romero v. Lynch, 846 F.3d

351, 357 (9th Cir. 2017) (“The words ‘on account of’ and ‘because of’ address the

2 persecutor’s motive for persecuting the victim.”).

Nor can Maldonado establish eligibility for withholding of removal on

account of her membership in the social group of “persons persecuted by gang

members or persons fearing harm from gang members in Honduras.” Under our

prior precedent, this social group is not cognizable. See Santos-Lemus v. Mukasey,

542 F.3d 738, 745–46 (9th Cir. 2008) (holding that “young men in El Salvador

resisting gang violence” is not a cognizable social group), abrogated on other

grounds by Henriquez-Rivas v. Holder, 707 F.3d 1081, 1093 (9th Cir. 2013) (en

banc). For these reasons, we deny the petition for review on Maldonado’s

withholding of removal claim.

2. “CAT’s implementing regulations explicitly require the agency to

consider all evidence relevant to the possibility of future torture,” which “includes

the petitioner’s testimony and country conditions evidence.” Parada v. Sessions,

902 F.3d 901, 914–15 (9th Cir. 2018) (internal quotation marks and citations

omitted). However, neither the IJ nor the BIA addressed Maldonado’s country

conditions evidence when evaluating her CAT claim. “The failure of the IJ and

BIA to consider evidence of country conditions constitutes reversible error.”

Aguilar-Ramos v. Holder, 594 F.3d 701, 705 (9th Cir. 2010). Accordingly, we

grant the petition in part and remand for the BIA to reconsider Maldonado’s claim

for CAT relief.

3 PETITION GRANTED IN PART, DENIED IN PART, REMANDED.