Galdames v. Sessions

687 F. App'x 605

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 19, 2017
• Docket: No. 12-74197
• Status: Published

Opinion

MEMORANDUM

*

Maria Tobar Galdames, a native and citizen of El Salvador, petitions for review of the Immigration Judge’s (“IJ’s”) and Board of Immigration Appeal’s (“BIA’s”) (together, “the agency’s”)¹ denial of her claim for withholding of removal. Gal-dames’s withholding claim is based on abuse that she suffered at the hands of her former boyfriend. We conclude that the agency applied an incorrect legal standard, and thus abused its discretion, in denying withholding of removal.

To demonstrate past persecution, Gal-dames bears the burden to show that the persecution she suffered was either committed by the Salvadoran government or by persons the government was unable or unwilling to control. See Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1056 (9th Cir. 2006). The IJ and the BIA held that Gal-dames could not demonstrate past persecution because she had failed to report her abuse. However, it is well-settled in this circuit that a petitioner’s failure to report her abuse to authorities does not operate as a per se bar to withholding but is instead “a factor that may be considered, as is credible testimony or documentary evidence explaining why a victim did not report.” Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1069 (9th Cir. 2017) (en banc); see also Ornelas-Chavez, 458 F.3d at 1058 (“[A]n applicant who seeks to establish eligibility for withholding of removal ... need not have reported [the] persecution to the authorities if [she] can convincingly establish that doing so would have been futile or would have subjected [her] to further abuse.”). The agency therefore erred in concluding that Gal-dames’s failure to report her abuse disqualified her from withholding of removal.²

We GRANT the petition and REMAND the case to the BIA for further proceedings consistent with this decision.

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

1 . The BIA in this case affirmed based on the reasoning and conclusions of the IJ while appearing to add some of its own reasoning and analysis. In such a circumstance, we review the decisions of both the IJ and the BIA. Huang v. Holder, 744 F.3d 1149, 1152 (9th Cir. 2014).

2 . Because the agency concluded that Gal-dames had not suffered past persecution, it placed the burden on Galdames to demonstrate that she could not safely and reasonably relocate within El Salvador. If, after applying the correct legal standard on remand, the BIA concludes that Galdames suffered past persecution, the Government—not Galdames— would bear the burden to show that she could safely and reasonably relocate. See 8 C.F.R. § 1208.16(b)(l)(ii).