Antonio v. Garland

• Decision Date: 26 January 2023
• Docket Number: 21-70624
• Citation: 58 F.4th 1067
• Parties: Rebeca Rufina Cristobal ANTONIO, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

58 F.4th 1067

Rebeca Rufina Cristobal ANTONIO, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 21-70624

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 13, 2022 Pasadena, California

Filed January 26, 2023

Marco A. Jimenez (argued), Jimenez Law Office, Riverside, California, for Petitioner.

John F. Stanton (argued), Rosanne M. Perry, and Nelle M. Seymour, Trial Attorneys; Leslie McKay, Senior Litigation Counsel; Brian Boynton, Acting Assistant Attorney General; United States Department of Justice, Office of Immigration Litigation, Civil Division; Washington, D.C.; for Respondent.

Before: Mark J. Bennett and Gabriel P. Sanchez, Circuit Judges, and Elizabeth E. Foote,^* District Judge.

Concurrence by Judge Sanchez

BENNETT, Circuit Judge:

Rebeca Cristobal Antonio, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals' ("BIA") streamlined affirmance of the immigration judge's ("IJ") denial of her claims for asylum, withholding of removal, and protection under the United Nations Convention Against Torture ("CAT"). Antonio was verbally and physically harassed and received death threats because her community in Guatemala perceived her to be a lesbian, including because she wore men's clothing to work. In her petition for review, Antonio challenges the IJ's findings that: (1) this treatment did not amount to persecution, (2) the relevant social group for asylum purposes is based on "manner of dress," and (3) no persecution was committed by the Guatemalan government or by forces that the government was unwilling or unable to control. The first finding is not supported by substantial evidence in the record. The second finding suffers from several errors discussed below. And in making the third finding, the agency did not consider all highly probative evidence in the record. We therefore grant the petition and remand for further proceedings.

I. BACKGROUND

When Antonio applied for entry into the United States in March 2014, an asylum officer found that she had a credible fear of persecution. In the notes of the credible fear interview, the asylum officer wrote:

You stated that starting about one year ago you began to dress in men's clothing in order to find work. As a result, the townspeople from your village labeled you a lesbian. Your neighbors threatened to kill you if you remained in the village because they do not approve of lesbians. Your uncles whipped you up frequently because they wanted you to give them food and money, and they also insulted you about being a lesbian.

Although Antonio specifically told the asylum officer that she was not a lesbian, she described threats she received because the villagers believed she was a lesbian: "[T]hey would get together and burn me down and whip me." "They said that if I didn't leave that place they would kill me." "[T]hey did not want any lesbian women in the village." Based on these threats, the asylum officer noted that Antonio alleged membership in a particular social group: "The people from your village and your family members are motivated to harm you with at least one central reason being that they believe that you are a member of the particular social group that is lesbian women in Guatemala."

Besides detailing her fear, Antonio explained why she could not seek help from local authorities. Her testimony to the asylum officer suggests that she told the police about her problems "but they didn't pay attention to me ... because they told me that I have to tell them that I am not the kind of person that they think that I am."¹ She also told the asylum officer that her neighbors said that "the police wouldn't do anything" if her neighbors tortured her. And she expressed fear of her village's mayor: "He is the one who has the last decision whether to kill me or not."² She stated that the mayor "would be behind [her neighbors] if they try to kill [her]."

The Department of Homeland Security issued a notice to appear charging Antonio with removability as an individual without a valid entry document at the time of application for admission. 8 U.S.C. § 1182(a)(7)(A)(i)(I). Antonio applied for asylum, withholding of removal, and protection under CAT. Her application stated that when she started wearing pants to work, which entailed collecting logs and grasses, her community started to shout at her that she was a lesbian and that they would kill her because she was a "wrong example for their children."

In a written declaration Antonio submitted in lieu of testimony at her asylum hearing before the IJ, she said that her community tortured her "for dressing up as a man," including by taking her to the police, because they believed "dressing up as a man means that [she is] a lesbian" and sets "a bad example for the children" in the village.³ The police let her go, but the death threats did not stop. The declaration adds that Antonio's "grandparents got worried and told [her] not to work so the community would not hurt [her]." She married a man but eventually "separated from [her] husband" due to the persistent rumors and harassment. She left for the United States because she wanted to end her torment.

At the asylum hearing, Antonio also submitted a complaint that she filed against her harassers with a Justice of the Peace of the municipality of San Pedro. In it, she explained how her marriage fell apart because of the rumors about her sexuality. The harassment escalated after that. On December 20, 2013, members of the community waited for her at her place of work and attempted to lynch her. They demanded that she remove the men's clothing, or else she "was going to burn." Someone called the authorities, who "rescue[d]" her. Antonio also submitted the decision; the local court denounced the behavior as "crimes of [d]iscrimination, insult and threats" and "remit[ted] the proceedings to the municipal Prosecutor of the Public Ministry ... for the corresponding criminal investigation."⁴

The IJ found Antonio credible, noting "that her declaration is consistent with the documentary evidence that she provided, specifically, the police report that she gave in her documents." On the issue of past persecution, the IJ first found that the community's threats did not rise to the level of persecution, although the decision did not discuss the repeated whipping by her uncles that Antonio described in her credible fear interview. Second, the IJ denied that Antonio belonged to a cognizable particular social group, finding that "style of her dress" is not an immutable characteristic and stating that Antonio's "articulated particular social group"—which the IJ did not restate in her order—"is ... too amorphous for [the IJ] to be able to say it fits within the particular social group analysis."⁵ The IJ specifically rejected the notion that Antonio presented a "sexual orientation issue because Respondent stated she was not a lesbian." Finally, the IJ found that the Guatemalan government did not persecute her or acquiesce in her persecution.⁶ The IJ highlighted that the "criminal branch municipality of San Pedro Soloma Court of La Paz ... denounced [the facts] as discrimination, insults, and threats, and then said that the court was inhibited and remits proceedings to headquarters for a corresponding criminal investigation." Thus, the IJ denied her application for asylum.⁷ A single member of the BIA affirmed the IJ without opinion under 8 C.F.R. § 1003.1(e)(4).

II. JURISDICTION

We have jurisdiction to review Antonio's final order of removal under 8 U.S.C. § 1252(a)(1). "We have jurisdiction to review the denial of an asylum application when a petitioner raises a question of law, including mixed questions of law and fact." Perdomo v. Holder , 611 F.3d 662, 665 (9th Cir. 2010).

III. STANDARD OF REVIEW

"Where, as here, the BIA summarily adopts the IJ's decision without opinion pursuant to 8 C.F.R. § 1003.1(e)(4), we ‘review the IJ's decision as if it were the BIA's decision.’ " Ren v. Holder , 648 F.3d 1079, 1083 (9th Cir. 2011) (quoting Zheng v. Ashcroft , 397 F.3d 1139, 1143 (9th Cir. 2005) ). We review de novo whether a group constitutes a "particular social group" under the Immigration and Nationality Act ("INA"). Barbosa v. Barr , 926 F.3d 1053, 1059 (9th Cir. 2019). We review "for substantial evidence the [agency's] determination that a petitioner has failed to establish eligibility for asylum or withholding of removal," including the "determination that a petitioner's past harm does not amount to past persecution." Sharma v. Garland , 9 F.4th 1052, 1060 (9th Cir. 2021) (cleaned up).⁸ Under this " ‘highly deferential’ standard," we "must accept ‘administrative findings’ as ‘conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.’ " Garland v. Ming Dai , ––– U.S. ––––, 141 S. Ct. 1669, 1677, 210 L.Ed.2d 11 (2021) (quoting Nasrallah v. Barr , ––– U.S. ––––, 140 S. Ct. 1683, 1692, 207 L.Ed.2d 111 (2020), and 8 U.S.C. § 1252(b)(4)(B) ).

IV. DISCUSSION

To qualify for asylum based on past persecution, an applicant must establish that: "(1) [her] treatment rises to the level of persecution; (2) the persecution was on account of one or more protected grounds; and (3) the persecution was committed by the government, or by forces that the government was unable or unwilling to control." Bringas-Rodriguez , 850 F.3d at 1062. We review each prong in turn.

A. Past Persecution

Persecution is "the infliction of suffering or harm upon those who differ ... in a way regarded as offensive." Lanza v. Ashcroft , 389 F.3d 917, 934 (9th Cir. 2004) (quoting Korablina v. I.N.S. , 158 F.3d 1038, 1043 (9th Cir. 1998) ). "[P]ersecution ... is ‘an extreme concept that does not include every sort of treatment our society regards as offensive.’ " Id. (quoting Nagoulko v. I.N.S. , 333 F.3d 1012, 1016 (9th Cir. 2003) ).

Antonio's neighbors "threatened that if [she] dressed [in men's clothing] they would get together and burn [her]...