Reyna Calmo-Aguilar v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 9, 2023
• Docket: 20-71398
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 9 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

REYNA FELVIRA CALMO-AGUILAR, No. 20-71398

Petitioner, Agency No. A209-400-308

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Argued April 15, 2022 Submission Withdrawn April 19, 2022 Resubmitted February 9, 2023 Pasadena, California

Before: SMITH,** BADE, and LEE, Circuit Judges.

Reyna Felvira Calmo-Aguilar, a lesbian woman and native and citizen of

Guatemala, petitions for review of the order of the Board of Immigration Appeals

(BIA) dismissing her appeal from a decision of the Immigration Judge (IJ) denying

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable D. Brooks Smith, United States Circuit Judge for the U.S. Court of Appeals for the Third Circuit, sitting by designation. her application for asylum, withholding of removal, and protection under the

Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252.

“We review the denial of asylum, withholding of removal and CAT claims for

substantial evidence.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir.

2019). “Under this standard, we must uphold the agency determination unless the

evidence compels a contrary conclusion.” Id. We grant the petition and remand

for further proceedings.

1. “To demonstrate entitlement to asylum or withholding of removal on

the basis of past persecution,” Doe v. Holder, 736 F.3d 871, 877 (9th Cir. 2013), an

applicant has the burden of establishing “(1) an incident, or incidents, that rise to

the level of persecution; (2) that is on account of one of the statutorily-protected

grounds; and (3) is committed by the government or forces the government is

either unable or unwilling to control,” id. at 877–78 (quoting Afriyie v. Holder, 613

F.3d 924, 931 (9th Cir. 2010)). Here, the record compels the conclusion that

Guatemalan authorities would be unable or unwilling to control Calmo-Aguilar’s

persecutors.

Our decision is controlled by Bringas-Rodriguez v. Sessions, 850 F.3d 1051,

1073–74 (9th Cir. 2017) (en banc), where we held that the petitioner was not

required to report the abuse he suffered as a child on account of his sexual

orientation because doing so would have been futile and dangerous. We also held

2 that the evidence compelled the conclusion that the government was unable or

unwilling to control the petitioner’s persecutors. Id. at 1073–75.

Calmo-Aguilar put forward similar evidence. She testified about a woman

whose experience suggested the police would not protect women, let alone

homosexual women, from sexual assault.1 Calmo-Aguilar also feared that she

would be raped or killed if returned to her native country; indeed, she experienced

community-wide harassment, including death threats and sexual assault, as a

young teen when others learned of her sexual orientation. She did not go to the

police out of fear that they would not protect her and “would do something to

[her],” which she based on her knowledge of the other woman’s experience,

Guatemala’s intolerance of homosexuality, and the absence of laws protecting

homosexuals—the latter two of which were not present in Bringas-Rodriguez. Id.

at 1075 (noting “increasing social acceptance of homosexuals” in Mexico and that

same-sex marriage had been legalized in some areas). Finally, Calmo-Aguilar

1 The woman whose experience Calmo-Aguilar testified about was heterosexual, whereas the friends in Bringas-Rodriguez were homosexual. However, as Calmo-Aguilar notes, if police were unwilling to protect a heterosexual woman from mistreatment, they may have been even less inclined to protect a homosexual woman, given the general attitude of the community toward homosexual individuals. Cf. Bringas-Rodriguez, 850 F.3d at 1070 (stating that it would be an erroneous assumption that “where government authorities are able and willing to protect heterosexual children, they will be equally able and willing to protect children who exhibit a different sexual orientation or are ‘different’ in other ways”).

3 offered country conditions evidence comparable to that of Bringas-Rodriguez.

Therefore, in light of Bringas-Rodriguez, the record compels the conclusion that

Calmo-Aguilar need not have reported her assaults and that Guatemalan authorities

would be unable or unwilling to control her persecutors.

2. The BIA denied Calmo-Aguilar’s CAT claim on the ground that she

failed to show that the Guatemalan government would torture her or acquiesce in

any torture committed by third parties. See Madrigal v. Holder, 716 F.3d 499, 508

(9th Cir. 2013) (a CAT applicant must show “that a public official would inflict,

instigate, consent to or acquiesce in” torture). Because this aspect of the CAT

claim relies on the same evidence that underlies the analysis of whether Calmo-

Aguilar would suffer persecution committed by the government or forces the

government is either unable or unwilling to control, we also grant the petition as to

this claim. See, e.g., Bringas-Rodriguez, 850 F.3d at 1076 (remanding “for

consideration of [petitioner’s] withholding of removal and CAT claims” after

determining petitioner suffered past persecution).

PETITION FOR REVIEW GRANTED; REMANDED.