NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 9 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ALICIA GERTRUDES PORRAS ATAO, No. 24-926 aka ALICIA GERTRUDES PORRAS- Agency Nos. ATAO; FRANK MAYTA PORRAS, aka A240-049-758 FRANK MAYTA-PORRAS, A240-049-759 Petitioners, MEMORANDUM* v.
PAMELA BONDI, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted November 18, 2025** Seattle, Washington
Before: McKEOWN, PAEZ, and DESAI, Circuit Judges.
Alicia Gertrudes Porras Atao (Porras Atao) and her minor son, both citizens
of Peru, petition for review of the denial of their applications for asylum and
* 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 relief under the Convention Against Torture (CAT).1
We have jurisdiction under 8 U.S.C. § 1252. Our review is limited to the
Board of Immigration Appeals’ (BIA) decision except to the extent that the
immigration judge’s (IJ) opinion was expressly adopted by the BIA. Garcia v.
Wilkinson, 988 F.3d 1136, 1142 (9th Cir. 2021). We review factual findings for
substantial evidence and questions of law de novo. Zhi v. Holder, 751 F.3d 1088,
1091 (9th Cir. 2014).
We grant the petition for review in part, deny it in part, and remand to the
BIA for further proceedings consistent with this disposition.
1. Asylum and Withholding of Removal.
a. Past Persecution and Future Persecution. The IJ and BIA determined that
Porras Atao failed to establish that her past harm constituted persecution. The BIA
reasoned that the threats directed at Porras Atao were not accompanied by
“evidence of violent confrontation or harm” to her or her son. The BIA proceeded
to conclude that the harm suffered by Porras Atao’s partner, Johnny Mayta Romero
(Mayta Romero),2 did not establish Porras Atao’s persecution because it preceded
the threats toward Porras Atao by one year and was not directed at her.
1 Porras Atao’s son is also a derivative beneficiary of her asylum application. See 8 U.S.C. § 1158(b)(3); 8 C.F.R. § 1208.3(a). 2 Porras Atao was in a relationship with Mayta Romero, the father of her son, for ten years. She referred to him at the hearing as her husband.
2 24-926 This finding is not supported by substantial evidence. The evidence compels
the conclusion that Porras Atao suffered past persecution. Death threats alone can
constitute persecution. Flores Molina v. Garland, 37 F.4th 626, 634 (9th Cir.
2022). We have “repeatedly held that threats may be compelling evidence of past
persecution, particularly when they are specific and menacing and are
accompanied by evidence of violent confrontations, near-confrontations and
vandalism.” Id. (citation omitted). Further, we have “consistently held” that the
murder of a petitioner’s family members can support a finding of past persecution.
Parada v. Sessions, 902 F.3d 901, 909–10 (9th Cir. 2018).
Neither the BIA nor the IJ acknowledged Porras Atao’s credible testimony
that Mayta Romero was likely murdered by the Taxi Killers—the same group that
subsequently threatened her with death. Specifically, after Mayta Romero assisted
in a police investigation of one of the Taxi Killers’ crimes, he was repeatedly
threatened by the group and then shot in the house that he shared with Porras Atao.
The Taxi Killers’ apparent murder of Mayta Romero, after threatening him for two
years, demonstrates that the group had the “will” and “ability” to also kill Porras
Atao if she did not comply with their threats. See Aden v. Wilkinson, 989 F.3d
1073, 1083 (9th Cir. 2021) (quoting Kaiser v. Ashcroft, 390 F.3d 653, 658–59 (9th
Cir. 2004)); see also Del Carmen Molina v. I.N.S., 170 F.3d 1247, 1249 (9th Cir.
1999).
3 24-926 The group continued to threaten Porras Atao from 2014 to 2022, even after
Porras Atao fled to another province in Peru and to two different locations in Chile,
and changed her phone number multiple times. The threats repeatedly warned
Porras Atao that she would “end up like [her] husband.” The group eventually
targeted Porras Atao and her son in person by throwing rocks through the windows
of the same house where Mayta Romero was killed, during a fifteen-day period
when Porras Atao and her son had returned to the house. This evidence compels
the conclusion that the threats to Porras Atao were not “vague,” as suggested by
the BIA, and that the harm she experienced constituted persecution.
b. Government’s Willingness or Ability to Control the Persecution. The IJ
found that Porras Atao and her son failed to show the government’s inability or
unwillingness to control their persecutors because: (1) when Mayta Romero filed a
police report against the Taxi Killers in 2011, the police did an investigation that
led to three arrests; (2) it was “not clear why [Porras Atao] would know” whether
the police investigated the report that she filed; and (3) the country conditions
evidence did not show that the police were unable or unwilling to provide
protection. The BIA affirmed this determination.
4 24-926 This finding is not supported by substantial evidence.3 In cases of non-
government persecution, “we consider whether an applicant reported the incidents
to police, because in such cases a report of this nature may show governmental
inability to control the actors.” Baballah v. Ashcroft, 367 F.3d 1067, 1078 (9th
Cir. 2004). Here, the IJ determined that the three arrests stemming from Mayta
Romero’s 2011 police report showed that the police were willing to control the
Taxi Killers. The IJ failed to consider, however, whether the police were able to
control the Taxi Killers. See J.R. v. Barr, 975 F.3d 778, 782 (9th Cir. 2020) (“The
question on this step is whether the government both ‘could and would provide
protection.’”) (citation modified); Madrigal v. Holder, 716 F.3d 499, 506 (9th Cir.
2013) (holding that the BIA erred by “focus[ing] only on the Mexican
government’s willingness to control Los Zetas, not its ability to do so”) (emphasis
in original).
The evidence demonstrates that after the three arrests were made, the Taxi
Killers targeted Mayta Romero with death threats.
Free access — add to your briefcase to read the full text and ask questions with AI
NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 9 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ALICIA GERTRUDES PORRAS ATAO, No. 24-926 aka ALICIA GERTRUDES PORRAS- Agency Nos. ATAO; FRANK MAYTA PORRAS, aka A240-049-758 FRANK MAYTA-PORRAS, A240-049-759 Petitioners, MEMORANDUM* v.
PAMELA BONDI, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted November 18, 2025** Seattle, Washington
Before: McKEOWN, PAEZ, and DESAI, Circuit Judges.
Alicia Gertrudes Porras Atao (Porras Atao) and her minor son, both citizens
of Peru, petition for review of the denial of their applications for asylum and
* 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 relief under the Convention Against Torture (CAT).1
We have jurisdiction under 8 U.S.C. § 1252. Our review is limited to the
Board of Immigration Appeals’ (BIA) decision except to the extent that the
immigration judge’s (IJ) opinion was expressly adopted by the BIA. Garcia v.
Wilkinson, 988 F.3d 1136, 1142 (9th Cir. 2021). We review factual findings for
substantial evidence and questions of law de novo. Zhi v. Holder, 751 F.3d 1088,
1091 (9th Cir. 2014).
We grant the petition for review in part, deny it in part, and remand to the
BIA for further proceedings consistent with this disposition.
1. Asylum and Withholding of Removal.
a. Past Persecution and Future Persecution. The IJ and BIA determined that
Porras Atao failed to establish that her past harm constituted persecution. The BIA
reasoned that the threats directed at Porras Atao were not accompanied by
“evidence of violent confrontation or harm” to her or her son. The BIA proceeded
to conclude that the harm suffered by Porras Atao’s partner, Johnny Mayta Romero
(Mayta Romero),2 did not establish Porras Atao’s persecution because it preceded
the threats toward Porras Atao by one year and was not directed at her.
1 Porras Atao’s son is also a derivative beneficiary of her asylum application. See 8 U.S.C. § 1158(b)(3); 8 C.F.R. § 1208.3(a). 2 Porras Atao was in a relationship with Mayta Romero, the father of her son, for ten years. She referred to him at the hearing as her husband.
2 24-926 This finding is not supported by substantial evidence. The evidence compels
the conclusion that Porras Atao suffered past persecution. Death threats alone can
constitute persecution. Flores Molina v. Garland, 37 F.4th 626, 634 (9th Cir.
2022). We have “repeatedly held that threats may be compelling evidence of past
persecution, particularly when they are specific and menacing and are
accompanied by evidence of violent confrontations, near-confrontations and
vandalism.” Id. (citation omitted). Further, we have “consistently held” that the
murder of a petitioner’s family members can support a finding of past persecution.
Parada v. Sessions, 902 F.3d 901, 909–10 (9th Cir. 2018).
Neither the BIA nor the IJ acknowledged Porras Atao’s credible testimony
that Mayta Romero was likely murdered by the Taxi Killers—the same group that
subsequently threatened her with death. Specifically, after Mayta Romero assisted
in a police investigation of one of the Taxi Killers’ crimes, he was repeatedly
threatened by the group and then shot in the house that he shared with Porras Atao.
The Taxi Killers’ apparent murder of Mayta Romero, after threatening him for two
years, demonstrates that the group had the “will” and “ability” to also kill Porras
Atao if she did not comply with their threats. See Aden v. Wilkinson, 989 F.3d
1073, 1083 (9th Cir. 2021) (quoting Kaiser v. Ashcroft, 390 F.3d 653, 658–59 (9th
Cir. 2004)); see also Del Carmen Molina v. I.N.S., 170 F.3d 1247, 1249 (9th Cir.
1999).
3 24-926 The group continued to threaten Porras Atao from 2014 to 2022, even after
Porras Atao fled to another province in Peru and to two different locations in Chile,
and changed her phone number multiple times. The threats repeatedly warned
Porras Atao that she would “end up like [her] husband.” The group eventually
targeted Porras Atao and her son in person by throwing rocks through the windows
of the same house where Mayta Romero was killed, during a fifteen-day period
when Porras Atao and her son had returned to the house. This evidence compels
the conclusion that the threats to Porras Atao were not “vague,” as suggested by
the BIA, and that the harm she experienced constituted persecution.
b. Government’s Willingness or Ability to Control the Persecution. The IJ
found that Porras Atao and her son failed to show the government’s inability or
unwillingness to control their persecutors because: (1) when Mayta Romero filed a
police report against the Taxi Killers in 2011, the police did an investigation that
led to three arrests; (2) it was “not clear why [Porras Atao] would know” whether
the police investigated the report that she filed; and (3) the country conditions
evidence did not show that the police were unable or unwilling to provide
protection. The BIA affirmed this determination.
4 24-926 This finding is not supported by substantial evidence.3 In cases of non-
government persecution, “we consider whether an applicant reported the incidents
to police, because in such cases a report of this nature may show governmental
inability to control the actors.” Baballah v. Ashcroft, 367 F.3d 1067, 1078 (9th
Cir. 2004). Here, the IJ determined that the three arrests stemming from Mayta
Romero’s 2011 police report showed that the police were willing to control the
Taxi Killers. The IJ failed to consider, however, whether the police were able to
control the Taxi Killers. See J.R. v. Barr, 975 F.3d 778, 782 (9th Cir. 2020) (“The
question on this step is whether the government both ‘could and would provide
protection.’”) (citation modified); Madrigal v. Holder, 716 F.3d 499, 506 (9th Cir.
2013) (holding that the BIA erred by “focus[ing] only on the Mexican
government’s willingness to control Los Zetas, not its ability to do so”) (emphasis
in original).
The evidence demonstrates that after the three arrests were made, the Taxi
Killers targeted Mayta Romero with death threats. These threats were severe, as
they led Mayta Romero to begin carrying a gun for his safety and to report the
threats to the police. He was then killed by the Taxi Killers in his own home,
compelling the conclusion that the police were unable to control the Taxi Killers.
3 The BIA affirmed the IJ’s denial of the son’s asylum and withholding of removal claims solely on this basis. Accordingly, our holding on this issue is dispositive of the son’s asylum and withholding of removal claims in this petition.
5 24-926 c. Firm Resettlement Bar to Asylum. This issue is exhausted because it was
argued in Porras Atao and her son’s brief before the BIA, and the BIA “pass[ed]”
on the issue when it affirmed the IJ’s finding. See Martinez v. Barr, 941 F.3d 907,
922 (9th Cir. 2019) (citation omitted).
As to the merits, the IJ found that Porras Atao was statutorily barred from
seeking asylum because she was firmly resettled in Chile, as she testified that she
received residency status as a result of her employment there in 2018. The BIA
affirmed this finding.
The agency erred in applying the firm resettlement bar to Porras Atao’s
asylum claim because it failed to proceed to the second step of the firm
resettlement analysis. See Arrey v. Barr, 916 F.3d 1149, 1159 (9th Cir. 2019).
The BIA’s decision does not address any evidence, or lack thereof, of Porras
Atao’s tenuous ties to Chile or any restrictions in her residence. The agency was
required to consider all relevant evidence and complete the two-step analysis. See
id.
For the above reasons, we remand to the agency to reconsider Porras Atao’s
and her son’s claims for asylum and withholding of removal consistent with this
disposition.
2. CAT Relief. Porras Atao and her son forfeited this claim by failing to
6 24-926 meaningfully challenge the agency’s denial of CAT relief in their opening brief.
See Martinez-Serrano v. I.N.S., 94 F.3d 1256, 1259 (9th Cir. 1996). We therefore
deny the petition insofar as it seeks review of Porras Atao’s and her son’s
applications for CAT relief.
3. Due Process in a Pro Se Proceeding. As remand is required on alternative
grounds, we do not address Porras Atao and her son’s due process claim.
PETITION GRANTED IN PART; DENIED IN PART; REMANDED.
The parties shall bear their own costs for this appeal.
7 24-926