755 F.3d 1026 (9th Cir. 2014), 09-71461, Garcia-Milian v. Holder

Docket Nº:09-71461
Citation:755 F.3d 1026
Opinion Judge:IKUTA, Circuit Judge:
Party Name:LYDIA GARCIA-MILIAN, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent
Attorney:Joubin P. Nasseri, Nasseri Law Group, Los Angeles, California, for Petitioner. Tony West, Assistant Attorney General, Emily Anne Radford, Assistant Director, Nicole Murley and Jesse L. Busen (argued), Trial Attorneys, Office of Immigration Litigation, United States Department of Justice, Civil Di...
Judge Panel:Before: Diarmuid F. O'Scannlain, Richard A. Paez, and Sandra S. Ikuta, Circuit Judges. Partial Concurrence and Partial Dissent by Judge Paez. CONCUR BY: Richard A. Paez (In Part) PAEZ, Circuit Judge, concurring in part and dissenting in part:
Case Date:February 13, 2014
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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755 F.3d 1026 (9th Cir. 2014)

LYDIA GARCIA-MILIAN, Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General, Respondent

No. 09-71461

United States Court of Appeals, Ninth Circuit

February 13, 2014

Argued and Submitted, Pasadena, California May 9, 2013.

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[Copyrighted Material Omitted]

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On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A096-180-239.

SUMMARY[*]

Immigration

The panel replaced its prior opinion and concurrence and dissent, filed on September 18, 2013, and published at 730 F.3d 996, with an amended opinion and amended concurrence and dissent, denied a petition for panel rehearing, denied a petition for rehearing en banc on behalf of the court, and ordered that no further petitions shall be entertained.

In the amended opinion, the panel denied a petition for review of the Board of Immigration Appeals' decision denying asylum and withholding of removal to a native and citizen of Guatemala because the evidence did not compel the conclusion that petitioner was persecuted on account of her imputed political opinion. The panel further held that the evidence did not compel the conclusion that petitioner was attacked with the acquiescence of the Guatemalan government for purposes of CAT relief.

Concurring in part and dissenting in part, Judge Paez agreed with the majority that the Board did not err in denying petitioner's CAT claim, but wrote that the evidence in the record compelled the conclusion that petitioner was attacked and raped because of her ex-husband's political opinions.

Joubin P. Nasseri, Nasseri Law Group, Los Angeles, California, for Petitioner.

Tony West, Assistant Attorney General, Emily Anne Radford, Assistant Director, Nicole Murley and Jesse L. Busen (argued), Trial Attorneys, Office of Immigration Litigation, United States Department of Justice, Civil Division, Washington, D.C., for Respondent.

Before: Diarmuid F. O'Scannlain, Richard A. Paez, and Sandra S. Ikuta, Circuit Judges. Partial Concurrence and Partial Dissent by Judge Paez.

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AMENDED OPINION

IKUTA, Circuit Judge:

Lydia Garcia-Milian, a native and citizen of Guatemala, petitions for review of the denial of her applications for asylum, withholding of removal, and relief under the Convention Against Torture (CAT) by the Board of Immigration Appeals (BIA). Because substantial evidence supports the BIA's determinations that Garcia-Milian was not persecuted on account of an imputed political opinion and that the attack she suffered did not occur with the acquiescence of the Guatemalan government, we deny her petition.

I

Garcia-Milian entered the United States illegally in June 2003. After the government initiated removal proceedings, she conceded removability and, on May 3, 2004, applied for asylum, withholding of removal, and CAT relief. See 8 U.S.C. § § 1158, 1231(b)(3); 8 C.F.R. § 208.18.

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Garcia-Milian testified at the removal proceedings and the IJ concluded that her testimony was credible. According to Garcia-Milian, she lived in Salama, Guatemala, a small city of approximately 15,000 people. Between 1985 and 1989, she lived with Noe Garcia, her common law husband.1 As a truck driver, Garcia was frequently away from Salama and would stay with Garcia-Milian for only two days each month. During the time they were together, Garcia never discussed politics or the ongoing civil war in Guatemala with Garcia-Milian, and never told her that he was in a guerilla group or organization. In approximately 1989, Garcia married another woman and did not return to Salama. Garcia-Milian did not have any further contact with him from that time forward.

Around 2000, Garcia-Milian noticed two masked men following her when she was out shopping or going to school. This occurred around twenty times. Garcia-Milian did not report these incidents to the police because she did not think that the police would help her. Subsequently, in May 2003, the two masked men came to her home at night and demanded that she open the door. When she did so, they told her that they were looking for Noe Garcia because he had been in a guerilla group and ordered her to tell them his current whereabouts. Although she did not know where he lived, she lied and told them he was living in San Miguel (a non-existent city). The men subsequently beat and raped her. Before leaving, they told Garcia-Milian that if they could not find Garcia, they would return and kill her.

After the men left, Garcia-Milian took a taxi to her mother's home in another town. Garcia-Milian did not seek treatment at a hospital because she was afraid that the men would find out and kill her. Two days later, she reported the incident to the Salama police, who told her they could not investigate the incident because she could not identify her assailants. Fearing for her life, Garcia-Milian left Guatemala for Mexico, and then paid a " coyote" to smuggle her across the border into the United States.

In addition to testifying at the proceeding, Garcia-Milian submitted a State Department report on Guatemala titled Country Reports on Human Rights Practices -- 2006, and four Amnesty International reports. The reports indicate that Guatemalan police had minimal training or capacity for investigating or assisting victims of sexual crimes, and that the Guatamalan government had been ineffective in investigating violence against women and homicides generally, due to weaknesses throughout the criminal justice and law enforcement system.

The IJ denied Garcia-Milian's applications for asylum, withholding of removal, and CAT relief. The BIA affirmed the IJ's decision. It noted that " [w]hile the respondent appears to have been the victim of criminal acts on the several occasions described, she has not established a nexus between any incident and a protected ground under the Act." Based on its review of the record, the BIA concluded that there was " no evidence the respondent ever expressed a political opinion and no evidence to suggest that she was harmed based on any real or imputed political opinion." As a result, the BIA denied Garcia-Milian's asylum and withholding of removal claims. The BIA also rejected Garcia-Milian's CAT claim. It held that the record did not establish that " it is more likely than not that the respondent will face torture by or with the

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acquiescence or willful blindness of an officer of the government of Guatemala."

II

We have jurisdiction under 8 U.S.C. § 1252 to review final orders of removal. Li v. Holder, 656 F.3d 898, 904 (9th Cir. 2011). We review the BIA's denials of asylum, withholding of removal, and CAT relief for " substantial evidence" and will uphold a denial supported by " reasonable, substantial, and probative evidence on the record considered as a whole." Kamalyan v. Holder, 620 F.3d 1054, 1057 (9th Cir. 2010) (internal quotation marks omitted) (asylum); Pagayon v. Holder, 675 F.3d 1182, 1190 (9th Cir. 2011) (internal quotation marks omitted) (withholding of removal); see Haile v. Holder, 658 F.3d 1122, 1130-31 (9th Cir. 2011) (CAT relief). In order to reverse the BIA, we must determine " that the evidence not only supports [a contrary] conclusion, but compels it--and also compels the further conclusion" that the petitioner meets the requisite standard for obtaining relief. INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). The agency's " [f]indings of fact are conclusive unless 'any reasonable adjudicator' would be compelled to conclude to the contrary." Kamalyan, 620 F.3d at 1057 (quoting 8 U.S.C. § 1252(b)(4)(B)).

A

We begin by considering Garcia-Milian's challenge to the BIA's denial of her asylum application.

Applicants for asylum bear the burden of proving eligibility for asylum. 8 C.F.R. § 208.13(a). In order to carry this burden, an applicant must first establish " refugee" status, 8 U.S.C. § 1158(b)(1) (2000), by proving past persecution or well-founded fear of future persecution " on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A) (2000).2 Persecution is " on account of" a protected ground only where the persecution occurred " because of" that ground. Elias-Zacarias, 502 U.S. at 483; Parussimova v. Mukasey, 555 F.3d 734, 739 (9th Cir. 2009). Accordingly, the persecutor's motive is " critical" and the applicant must come forward with " some evidence of [motive], direct or circumstantial." Elias-Zacarias, 502 U.S. at 483.

Here, Garcia-Milian based her asylum claim on the ground that the masked men persecuted her on account of her political opinion. Although she does not claim to have any political opinion of her own, an applicant " can also establish persecution on account of imputed political opinion--that is, on account of a political opinion attributed to him by his persecutors." Navas v. I.N.S., 217 F.3d 646, 658 (9th Cir. 2000). " In establishing an imputed political opinion, the focus of inquiry turns away from the views of the victim to the views of the persecutor." Sangha v. I.N.S., 103 F.3d 1482, 1489 (9th Cir. 1997). Therefore, the applicant for asylum must present evidence of the persecutor's views. A persecutor's statements attributing political views to the applicant may be persuasive evidence. " For example, one party to a conflict may insist to the victim that

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the victim is aligned with the other side." Id. (citing Singh v. Ilchert, 63 F.3d 1501, 1509 (9th Cir. 1995)). Similarly, persecutors' statements that they are retaliating against the victim for the political views of the victim's family would support an imputed political opinion claim. Kebede v....

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