Miriam Garcia-Reyes v. Jefferson Sessions, III

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 25, 2018
• Docket: 15-70083
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 25 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MIRIAM GARCIA-REYES, AKA Yrma No. 15-70083 Garcia Reyes, Agency No. A070-170-797 Petitioner,

v. MEMORANDUM*

JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

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

Argued and Submitted November 6, 2017 Submission Vacated November 6, 2017 Resubmitted October 25, 2018 Pasadena, California

Before: GILMAN,** WARDLAW, and RAWLINSON,*** Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Ronald Lee Gilman, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. *** This case was submitted to a panel that included Judge Stephen Reinhardt. Following Judge Reinhardt’s death, Judge Rawlinson was drawn by lot to replace him. Ninth Circuit General Order 3.2.h. Judge Rawlinson has read the briefs, reviewed the record, and listened to oral argument. Miriam Garcia Reyes, a native and citizen of Mexico, petitions for review of

the Board of Immigration Appeals (BIA) decision affirming the denial by the

immigration judge (IJ) of her applications for cancellation of removal under 8

U.S.C. § 1229b(b) and for humanitarian asylum. We have jurisdiction pursuant to

8 U.S.C. § 1252(a)(5). We deny in part and grant in part the petition for review

and remand with instructions.

1. We find no error in the BIA’s determination that Garcia’s daughter was

not a qualifying relative for the purposes of cancellation of removal due to the

daughter’s twenty-first birthday during the pendency of the proceedings. See

Mendez-Garcia v. Lynch, 840 F.3d 655, 664 (9th Cir. 2016). On this record,

Garcia has not shown the type of “extraordinary delays” resulting from

governmental action that would violate due process. Id. at 667.

2. The BIA erred in finding Garcia ineligible for humanitarian asylum.

Because Garcia has shown that organized crime has targeted her family with

extortion and violence, including deadly force, a reasonable factfinder would be

compelled to conclude that Garcia has established a reasonable possibility that she

may suffer other serious harm upon removal.1 8 C.F.R. § 1208.13(b)(1)(iii)(B);

1 Although the government argues on appeal that Garcia will live in Tijuana or Mexicali and has not provided evidence of harm in those particular areas, the BIA did not rely on this rationale, and, consequently, we may not consider it. Navas v. I.N.S., 217 F.3d 646, 658 n.16 (9th Cir. 2000).

2 Haile v. Holder, 658 F.3d 1122, 1125 (9th Cir. 2009). In concluding otherwise, the

BIA failed to account for the fact that a substantial percentage of Garcia’s family

has suffered serious harm in the form of murder, death threats, and other violence.

For example, a cartel member killed Garcia’s brother-in-law when he did not give

in to extortion demands. Cartel members also shot at Garcia’s brother in an

attempt to steal his taxi; corrupt police officers attempted to kidnap him; and he

continues to receive threats from the cartels due to his connection to the family

businesses. The attempt to extract money from Garcia’s sister followed by death

threats when she refused to comply, in particular, shows that family members are

targeted on account of the family’s perceived wealth, not just for their role in

operating the family business—and that Garcia would be similarly at risk. We

have repeatedly recognized that the kinds of harm and threats to family members

that Garcia describes here give rise to a reasonable possibility of persecution akin

to serious harm. See, e.g., Ayala v. Sessions, 855 F.3d 1012, 1020–21 (9th Cir.

2017); Zhang v. Ashcroft, 388 F.3d 713, 718 (9th Cir. 2004); Hernandez-Ortiz v.

I.N.S., 77 F.2d 509, 515 (9th Cir. 1985).

The BIA also disregarded Garcia’s explanation, corroborated by country

conditions evidence, that her family did not call the police because the police “are

very corrupt and they are usually involved with the cartel.” Indeed, this fact

underscores the reasonable possibility that Garcia may suffer other serious harm

3 upon removal to Mexico, as it shows that law enforcement authority, in collusion

with the cartels, cannot protect her from the violence directed at her family.

The BIA assumed, without deciding, that Garcia’s past harm constituted

persecution on account of a protected ground. 8 C.F.R. § 1208.13(b)(1).

Accordingly, we remand to the BIA with instructions to make the requisite

findings and, as appropriate, to exercise its discretion as to whether to grant

humanitarian asylum. Id. § 1208.13(b)(1)(iii).

PETITION DENIED IN PART AND GRANTED IN PART;

REMANDED WITH INSTRUCTIONS.2,3

2 The pending motion to supplement the record on appeal (ECF No. 43) is DENIED AS MOOT. 3 Each party shall bear its own costs on this petition for review.

4 FILED Garcia-Reyes v. Sessions, Case No. 15-70083 OCT 25 2018 Rawlinson, Circuit Judge, concurring: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

I agree that Petitioner Miriam Garcia-Reyes is eligible for humanitarian

asylum. However, I would predicate the grant of asylum on the unrelenting sexual

assaults perpetrated upon Garcia-Reyes by her very own father.

During removal proceedings, Garcia-Reyes testified that her father “has

always abused me.” She related that “[h]e was fondling us without caring of the

age that we had, we were big or not.” Garcia-Reyes stated that their mother did not

intervene. Rather, she expressed the view that Garcia-Reyes “deserved” the abuse.

In her declaration, Garcia-Reyes also described the sexual abuse and her

mother’s comment that she deserved the abuse because she “was a whore.” When

Garcia-Reyes was fourteen, she attempted to flee, but her father found her and

“dragged [her] back to the house by [her] hair.”

We have recognized that sexual abuse of young women constitutes a

legitimate basis for the grant of humanitarian asylum relief. See, e.g., Mohammed

v. Gonzales, 400 F.3d 785, 798 (9th Cir. 2005) (describing female genital

mutilation as “a form of gender-based persecution”). We have also recognized that

“persecution may be emotional or psychological, as well as physical.” Id. at 796

(citation and alteration omitted). We gave as an example of persecution “a forced

1 pregnancy examination.” Id. The continuous sexual assaults described by Garcia-

Reyes at least rise to the level of a forced pregnancy examination. On that basis, I

concur that Garcia-Reyes should be considered for a grant of humanitarian asylum.