Ochoa-Giron v. Bondi

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 7, 2025
• Docket: 24-1930
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 7 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ALLISON ITZAYANA OCHOA-GIRON, No. 24-1930 Agency No. Petitioner, A220-688-652 v. MEMORANDUM* PAMELA BONDI, Attorney General,

Respondent.

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

Submitted February 3, 2025** San Francisco, California

Before: McKEOWN, FORREST, and SANCHEZ, Circuit Judges.

Allison Itzayana Ochoa-Giron, a native and citizen of Guatemala, petitions

the Board of Immigration Appeals’ (“BIA”) affirmance of an Immigration Judge’s

(“IJ”) decision denying her and her minor child’s applications for asylum,

* 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). withholding of removal, and protection under the Convention Against Torture

(“CAT”). Ochoa-Giron is the lead applicant, and her minor daughter is a derivative

applicant on her asylum request. Because the parties are familiar with the facts, we

need not recount them here.

We have jurisdiction under 8 U.S.C. § 1252. Our review is limited to the

BIA’s decision, except to the extent the IJ’s opinion is expressly adopted.

Rodriguez v. Holder, 683 F.3d 1164, 1169 (9th Cir. 2021). We review legal

conclusions de novo and factual findings for substantial evidence. Bringas-

Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc). Due process

challenges are reviewed de novo. Troncoso-Oviedo v. Garland, 43 F.4th 936, 939

(9th Cir. 2022). We grant the petition and remand for a new hearing.

Ochoa-Giron contends that the IJ’s refusal to take administrative notice of

the 2020 Guatemalan country conditions report and exclusion of the late-filed 2021

report violated her right to due process. “If an IJ’s actions prevent the introduction

of ‘significant testimony,’ that generally violates due process.” Flores-Rodriguez

v. Garland, 8 F.4th 1108, 1113 (9th Cir. 2021) (quoting Lopez-Umanzor v.

Gonzales, 405 F.3d 1049, 1056–57 (9th Cir. 2005)). Moreover, this court has

explained that “it is an IJ's duty to develop the record fully and fairly.” Kaur v.

Ashcroft, 388 F.3d 734, 737 (9th Cir. 2004) (citation omitted). “The BIA’s decision

will be reversed on due process grounds if (1) the proceeding was so

2 24-1930 fundamentally unfair that the [noncitizen] was prevented from reasonably

presenting [her] case, and (2) the [noncitizen] demonstrates prejudice, which

means that the outcome of the proceeding may have been affected by the alleged

violation.” Ibarra-Flores v. Gonzales, 439 F.3d 614, 620–21 (9th Cir. 2006)

(internal quotation marks and citation omitted).

The agency’s repeated refusal to allow Ochoa-Giron to present country

conditions evidence prevented her from reasonably presenting her case because the

reports would have bolstered her claim that the Guatemalan government was

unwilling or unable to protect her. The exclusion of “corroborating evidence” for

which “there was no substitute” violates due process. Kaur, 388 F.3d at 737; see

also Lopez-Umanzor, 405 F.3d at 1057 (refusal to hear expert testimony violated

due process, despite facially neutral reasons for exclusion, because testimony

would have bolstered credibility on contested points). The reports could have

helped establish that, in Guatemala, “[v]iolence against women, including sexual

and domestic violence, remained widespread and serious,” and “[p]olice had

minimal training or capacity to investigate sexual crimes or assist survivors of such

crimes, and the government did not enforce the law [regarding rape and domestic

violence] effectively.”

Ochoa-Giron has also demonstrated prejudice. She need only demonstrate

that “the outcome of the proceeding may have been affected by the alleged

3 24-1930 violation.” Flores-Rodriguez, 8 F.4th at 1113 (quoting Colmenar v. INS, 210 F.3d

967, 971 (9th Cir. 2000)). The agency’s denial of Ochoa-Giron’s claims for relief

rested on her failure to establish either that the Guatemalan government was unable

or unwilling to protect her, or that she would likely experience torture with

government acquiescence. At the merits hearing, the IJ specifically noted the

absence of “country condition articles . . . showing . . . the government’s ability or

willingness to protect” victims of domestic violence as part of Ochoa-Giron’s

failure to carry her burden. Ochoa-Giron has identified information in the country

conditions reports that would have bolstered her arguments on this prong.

Consequently, the reports’ exclusion may have affected the outcome.

Because Ochoa-Giron’s right to due process was violated, we grant the

petition for review and remand for a new hearing. See, e.g., Kaur, 388 F.3d at 738.

We need not reach the remaining grounds raised in her petition.

PETITION GRANTED AND REMANDED.

4 24-1930