Matias Calmo De Ortiz v. Bondi

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 17, 2025
• Docket: 24-1213
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUN 17 2025 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

PAULINA MATIAS CALMO DE No. 24-1213 ORTIZ; C O.M., Agency Nos. Petitioners, A208-929-695 A208-929-696 v.

PAMELA BONDI, Attorney General, MEMORANDUM*

Respondent.

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

Submitted June 13, 2025** San Francisco, California

Before: S.R. THOMAS and KOH, Circuit Judges, and SILVER, District Judge.***

Petitioners Paulina Matias Calmo de Ortiz and her minor child petition for

review of a decision by the Board of Immigration Appeals (“Board”) affirming an

* 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 Roslyn O. Silver, United States District Judge for the District of Arizona, sitting by designation. Immigration Judge’s (“IJ”) denial of asylum, withholding of removal, and

protection under the Convention Against Torture (“CAT”). We have jurisdiction

pursuant to 8 U.S.C. § 1252, and we grant the petition for review in part and deny

it in part. Because the parties are familiar with the history of the case, we need not

recount it here.

Where, as here, the Board “agrees with the IJ decision and also adds its own

reasoning, we review the decision of the [Board] and those parts of the IJ’s

decision upon which it relies.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1027–28

(9th Cir. 2019). “We review the Board’s legal conclusions de novo, and its factual

findings for substantial evidence.” Bringas-Rodriguez v. Sessions, 850 F.3d 1051,

1059 (9th Cir. 2017) (en banc) (cleaned up). “To prevail under the substantial

evidence standard, the petitioner must show that the evidence not only supports,

but compels the conclusion that these findings and decisions are erroneous.”

Plancarte Sauceda v. Garland, 23 F.4th 824, 831 (9th Cir. 2022) (as amended)

(cleaned up). We review de novo claims that the IJ violated an applicant’s due

process rights. Olea-Serefina v. Garland, 34 F.4th 856, 866 (9th Cir. 2022).

2 I

We grant the petition for review as to Matias Calmo de Ortiz’s asylum and

withholding of removal claims.1 The Board upheld the IJ’s denial of both claims

based on the determinations that Matias Calmo de Ortiz could not show (1) that the

Guatemalan government was or would be unwilling or unable to control the private

actors from whom she fears persecution, and (2) that she could safely relocate

within Guatemala. The denial is not supported by substantial evidence because

both grounds on which the Board relied were marred by legal error.

A

The Board’s determination that Matias Calmo de Ortiz did not show that the

Guatemalan government would be “unwilling or unable” to protect her from

persecution committed by private actors is infirm.

First, the record does not support the Board’s treatment of the evidence that

Matias Calmo de Ortiz’s attackers jailed her, and the Board additionally applied

the wrong legal standard to that evidence. Contrary to the Board’s conclusion,

1 Although Matias Calmo de Ortiz did not “specifically and distinctly” challenge the denial of withholding of removal in her opening brief, Hernandez v. Garland, 47 F.4th 908, 916 (9th Cir. 2022) (as amended), “we exercise our discretion to review the” Board’s denial of this claim “because ‘the government briefed it, and thus suffers no prejudice from [Matias Calmo de Ortiz’s] failure to properly raise the issue,’” Antonio v. Garland, 58 F.4th 1067, 1077 n.15 (9th Cir. 2023) (quoting Singh v. Ashcroft, 361 F.3d 1152, 1157 n.3 (9th Cir. 2004)). 3 Matias Calmo de Ortiz’s testimony that, after beating and raping her, private

security officers took her to a jail and had her confined there compels the

conclusion that the Guatemalan government would be unwilling to control her

persecutors. There is no evidence of a legitimate reason for her incarceration.

Rather, the government effectively condoned the persecution by incarcerating her,

apparently at the attackers’ request, in addition to not providing her medical care or

basic necessities in custody. The Board also improperly demanded evidence on

appeal that the IJ did not, regarding whether Matias Calmo de Ortiz’s repeated

references to a jail meant anything but the word’s plain meaning, a state-run

facility—which the IJ’s merits determination did not question.2 See Soto-Soto v.

Garland, 1 F.4th 655, 661 (9th Cir. 2021) (explaining that the Board errs by

“substituting its own view of the evidence for the IJ’s”).

Further, the Board concluded that Matias Calmo de Ortiz’s testimony about

having been jailed did not prove “an affiliation” between her attackers and the

government; but petitioners are not required to prove such a connection. They

must show only that the government was or would be “unwilling or unable” to

control the attackers. See Madrigal v. Holder, 716 F.3d 499, 507 (9th Cir. 2013)

2 The IJ found Matias Calmo de Ortiz was not credible but also issued an alternative holding on the merits. The Board addressed only the alternative merits decision. 4 (remanding where the Board’s “unwilling or unable” conclusion resulted from

legal error, as it applied the wrong standard); cf. Ornelas-Chavez v. Gonzales, 458

F.3d 1052, 1058–59 (9th Cir. 2006) (remanding CAT claim where the agency

applied the wrong legal standard, noting that the error was not simply “errant word

choice”).3

Second, the Board separately “erred when it faulted [Matias Calmo de Ortiz]

for failing to” make a second report of the attack. Davila v. Barr, 968 F.3d 1136,

1143 (9th Cir. 2020). The Board acknowledged that she had reported the attack to

the public ministry, a government agency that assists victims of crime. But the

Board based its “unwilling or unable” determination in part on her testimony that

she had not additionally sought help from the mayor of a town three hours away,

with whom Matias Calmo de Ortiz had frequently worked to secure food aid and

other assistance for her small indigenous community. See Bringas-Rodriguez, 850

F.3d at 1066 n.9 (describing the “rule that reporting is not required”). The Board

erred by ignoring the evidence that, after she reported the attack to the public

ministry, her attackers threatened her with death, saying, “we warned you . . . not

to report on us.” Davila, 968 F.3d at 1143 (explaining that the Board errs by 3 To the extent that Matias Calmo de Ortiz contends that she was persecuted by the government, not private actors, we decline to conclude that the Board was required to credit this contention because she testified and stated in her declaration that her persecutors were private actors. 5 faulting a petitioner for not making additional reports of further abuse, if the

petitioner has demonstrated “why she did not make any further reports”); see also

Ornelas-Chavez, 458 F.3d at 1058 (explaining that the petitioner “need not have

reported . . . persecution to the authorities if he can convincingly establish that

doing so would have been futile or have subjected him to further abuse”).4

B

As the parties agree, the Board erred in its internal relocation analysis by not

referring to or assessing the regulatory factors for when it is “reasonable” to expect

internal relocation. In addition to analyzing whether a noncitizen “could relocate

safely,” the agency must also analyze “whether it would be reasonable to require

the applicant to do so.” Afriyie v. Holder, 613 F.3d 924, 934 (9th Cir. 2010)

(internal quotations and citation omitted), superseded on other grounds by

Bringas-Rodriguez, 850 F.3d at 1069–70. The regulation lists factors that

“adjudicators should consider” in assessing reasonableness. 8 C.F.R.

§ 1208.13(b)(3).

4 Further undermining the “unwilling or unable” determination, the Board also purported to uphold a predictive factual finding the IJ did not make. In determining whether the legal requirements for persecution are met, the Board may not “base[] its determination on factual findings not made by the IJ.” Perez- Palafox v. Holder, 744 F.3d 1138, 1146 (9th Cir. 2014). 6 First, neither the Board nor the IJ referenced the factors they were

considering, so it is at best unclear whether they applied the correct standard. See

Afriyie, 613 F.3d at 935 (remanding for reconsideration of internal relocation

“because we cannot determine whether the [Board] considered the requisite

regulatory factors pertinent to the reasonableness analysis”). Second, the agency

did not consider Matias Calmo de Ortiz’s testimony that when she temporarily

relocated within Guatemala before fleeing to the United States, she received a

death threat from her attackers, who warned that they would find her, “no matter

where.” See Knezevic v. Ashcroft, 367 F.3d 1206, 1214–15 (9th Cir. 2004)

(remanding where the agency “failed to take into account the numerous factors for

determining reasonableness outlined in” the regulation, and petitioners’ evidence

showed “internal relocation would be unreasonable”). Third, the Board incorrectly

focused on Matias Calmo de Ortiz’s family members’ having safely relocated.

This evidence does not support internal relocation because her relatives had not

similarly been targeted for their political activity, suffered the same degree of past

harm, or received explicit threats of future harm. See, e.g., Kumar v. Gonzales,

444 F.3d 1043, 1055 (9th Cir. 2006) (concluding it was “irrelevant” that

petitioner’s parents were not harmed after petitioner left India because they were

not “similarly situated”).

7 C

We therefore remand the asylum and withholding of removal claims for the

agency to apply the correct legal standards and “evaluate all relevant evidence in

the record.” See Davila, 968 F.3d at 1143. We note that the IJ assumed Matias

Calmo de Ortiz had suffered harm rising to the level of persecution on account of

her race, but did not consider her claimed political opinion or imputed political

opinion nexus. On remand, the Board should evaluate Matias Calmo de Ortiz’s

persecution claim based on this additional protected ground.5 Her political opinion

claim is of particular relevance to any consideration of whether it would be

reasonable for her to relocate internally. See Kumar, 444 F.3d at 1055.

II

We grant the petition for review as to Matias Calmo de Ortiz’s CAT claim.

Because “we conclude that the [Board’s] decision cannot be sustained upon its

reasoning, we must remand to allow the agency to decide any issues remaining in

5 However, it was not error for the Board to decline to further analyze the alternate grounds on which she claimed asylum—membership in a disfavored group or a pattern or practice of persecution—because the Board correctly determined that she had failed to argue that her country condition evidence established eligibility on either basis. See Ghahremani v. Gonzales, 498 F.3d 993, 997 (9th Cir. 2007) (“Issues raised in a brief that are not supported by argument are deemed abandoned.” (quoting Martinez–Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996))). 8 the case.” Garcia v. Wilkinson, 988 F.3d 1136, 1142 (9th Cir. 2021) (quoting

Regalado-Escobar v. Holder, 717 F.3d 724, 729 (9th Cir. 2013)). First, the Board

impermissibly went beyond the IJ’s factual findings underlying the denial of CAT.

See Perez-Palafox, 744 F.3d at 1146. Second, the Board’s discussion of the record

evidence and its citations to inapposite cases indicate that it did not “give reasoned

consideration” to all relevant evidence. Cole v. Holder, 659 F.3d 762, 771–72 (9th

Cir. 2011) (discussing “indications” that, contrary to the CAT regulations, the

Board “did not consider all of the evidence before it”); see also Parada v. Sessions,

902 F.3d 901, 914–15 (9th Cir. 2018) (noting that “we have repeatedly reversed

where the agency has failed to” consider “all evidence relevant to the possibility of

future torture”); cf. Flores Molina v. Garland, 37 F.4th 626, 636 (9th Cir. 2022)

(remanding where “[t]he two citations the [Board] provided . . . b[ore] no

resemblance to the” facts of the petitioner’s case).

These legal errors require remand of the CAT claim. See Singh v. Garland,

118 F.4th 1150, 1165 (9th Cir. 2024) (“[W]hen the agency commits legal error . . .

‘we do not ignore the error to see if substantial evidence nevertheless supports the

agency’s determination,’” but rather we “remand to the agency to apply the correct

legal standard.” (quoting Singh v. Garland, 97 F.4th 597, 609 (9th Cir. 2024))).

9 III

We grant in part and deny in part the petition for review as to Matias Calmo

de Ortiz’s due process claims because she can show prejudice for one claim but not

the others.

The IJ’s refusal to permit counsel to conduct redirect after the government’s

cross examination “prevent[ed] a full examination of” Matias Calmo de Ortiz.

Colmenar v. INS, 210 F.3d 967, 972 (9th Cir. 2000); see Flores-Rodriguez v.

Garland, 8 F.4th 1108, 1113 (9th Cir. 2021). She was “prejudiced by the IJ’s

conduct” because “it [was] possible that, given a reasonable opportunity to testify,”

she could have further explained certain assertions in her written application and

further developed related testimony about her jailing in Guatemala. Colmenar, 210

F.3d at 972. Such testimony could have affected the outcome of her asylum and

withholding claims—which the Board rejected based in part on the lack of

evidence of government unwillingness or inability to control her persecutors—and

her CAT claim, which the Board rejected based in part on the lack of evidence of

acquiescence. See Zolotukhin v. Gonzales, 417 F.3d 1073, 1077 (9th Cir. 2005)

(“The standard does not demand absolute certainty; rather prejudice is shown if the

violation ‘potentially . . . affects the outcome of the proceedings.’” (quoting

Agyeman v. INS, 296 F.3d 871, 884 (9th Cir. 2002))). Thus, the Board erred by

10 determining that Matias Calmo de Ortiz was not prejudiced by the IJ’s conduct,

and remand is required. See Cinapian v. Holder, 567 F.3d 1067, 1074 (9th Cir.

2009).

However, the Board did not err by rejecting Matias Calmo de Ortiz’s other

due process claims. She was not prejudiced by the IJ’s denial of a continuance to

obtain and present corroborating evidence because it is unclear what impact any

corroborating evidence might have had on the alternative merits holding the Board

affirmed. The portions of the IJ opinion on which the Board relied do not point to

a lack of corroboration. See Cruz Rendon v. Holder, 603 F.3d 1104, 1109–11 (9th

Cir. 2010) (petitioner was prejudiced by denial of continuance where IJ relied on

lack of evidence she could potentially have gathered).

Matias Calmo de Ortiz also was not prejudiced by the IJ’s refusal to permit

her expert and lay witnesses to testify. Her contention that the witnesses could

have clarified inconsistencies is unavailing because the Board did not rely on the

IJ’s adverse credibility determination. And while her lay witness could have

supplemented her account in some respects, much of that witness’s account of past

events in his declaration materially diverged from Matias Calmo de Ortiz’s own

account. The agency is not required to accept two stories that seem to be mutually

exclusive; we therefore cannot say that the exclusion of this testimony “potentially

11 . . . affect[ed] the outcome of the proceedings.” Zolotukhin, 417 F.3d at 1077

(emphasis removed).

IV

In sum, we grant Matias Calmo de Ortiz’s petition for review as to her

asylum, withholding of removal, and CAT claims. We grant in part and deny in

part her petition for review of her due process claims. Each party shall bear their

own costs.

PETITION GRANTED IN PART, DENIED IN PART, REMANDED.