Castro-Perez v. Gonzales
| Decision Date | 01 June 2005 |
| Docket Number | No. 03-73444.,03-73444. |
| Citation | 409 F.3d 1069 |
| Parties | Ingrid Yamileth CASTRO PEREZ, Petitioner, v. Alberto R. GONZALES,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Phyllis A. Beech, Fresno, CA, for the petitioner.
Shelly R. Goad, United States Department of Justice, Washington, D.C., for the respondent.
On Petition for Review of an Order of the Board of Immigration Appeals.
Before: NOONAN, THOMPSON, and RYMER, Circuit Judges.
Petitioner Ingrid Yamileth Castro-Perez, a young woman from Honduras, petitions for review of the Board of Immigration Appeals' ("BIA") summary affirmance without opinion of an Immigration Judge's ("IJ") denial of her applications for asylum, withholding of removal, and relief under the Convention Against Torture. We have jurisdiction under 8 U.S.C. § 1252.
Because the record before us does not compel a reasonable factfinder to find that Castro-Perez established that her ground of alleged persecution, rape by the man she dated in Honduras, is a crime the Honduran government is unable or unwilling to control, we deny her petition for asylum and for withholding of removal. See INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). We also deny her claim for relief under the Convention Against Torture, because she has not "specifically and distinctly argued and raised" that issue in her petition to this court. See Arpin v. Santa Clara Valley Trans. Agency, 261 F.3d 912, 919 (9th Cir.2001).
During late 1998 to 1999, Castro-Perez, then a 17-year-old living in Honduras, was dating a young man named Marlo Scott Hernandez, who was a member of a powerful local criminal gang. In October 1998, Hernandez raped Castro-Perez. She did not report the rape to the police because she believed the police would not investigate a date rape, and because she was afraid of how her father would react. She continued to see Hernandez, feeling obligated to do so and fearing that she could never marry another man because she was no longer a virgin.
Hernandez raped Castro-Perez again and she became pregnant. She did not report that rape either. Instead, she fled to the United States in June 1999 intending to live with her sister, who was residing in Colorado. Castro-Perez was apprehended while entering the United States from Mexico and detained. She was released into the custody of her sister, and while in the United States gave birth to a baby boy in January 2000.
On March 15, 2001, Castro-Perez filed an application for asylum, withholding of removal, and relief under the Convention Against Torture. At her hearing she testified she was afraid to return to Honduras for fear that Hernandez and his friends would find her and her son and harm them. She testified she believed the Honduran police would be of no help. She also testified Hernandez had sworn to find her and had attempted to enter the United States on two occasions to do so. In support of her claim, she submitted the U.S. Department of State's Country Report on Human Rights Practices for 2000 pertaining to Honduras, hereinafter Country Report, which states that the Honduran government outlaws rape, including spousal rape, with punishment ranging from 3 to 9 years' imprisonment.1
While the IJ found Castro-Perez to be credible, he denied her request for asylum, finding that her "fear was arousing from and by an individual with whom she had some kind of relationship," and that she "failed to demonstrate a country-wide persecution." The IJ likewise denied her requests for withholding of removal and relief under the Convention Against Torture. The BIA summarily affirmed the IJ's decision without opinion. Castro-Perez petitions this court for review.
When, as here, the BIA affirms the IJ's decision without opinion, the order of the IJ "constitutes the final agency determination," and it is that decision which we review. Halaim v. INS, 358 F.3d 1128, 1131 (9th Cir.2004). When the IJ expressly determines the petitioner is credible, this court must accept the petitioner's testimony as true. Id.
To be eligible for asylum, Castro-Perez must demonstrate she is a refugee. 8 U.S.C. § 1158(b)(1). A refugee is defined as a person who is unable or unwilling to return to her home country because of a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1101(a)(42)(A); see INS v. Cardoza-Fonseca, 480 U.S. 421, 428, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). "[A]n alien who establishes past persecution is presumed to have a well-founded fear of future persecution." Prasad v. INS, 101 F.3d 614, 617 (9th Cir.1996).
Castro-Perez asserts that she is a member of a particular social group, and that the rapes she suffered constituted past persecution for which the Honduran government is responsible, because it is unable or unwilling to control rape in that country. See Navas v. INS, 217 F.3d 646, 655-56 (9th Cir.2000).
Even if we were to assume, without deciding, that Castro-Perez is a member of a particular social group and that the rapes she suffered were persecution because of her membership in that group, her asylum claim fails because she has not shown that an agent of the government of Honduras committed the rapes, or that the government of Honduras is unable or unwilling to control rape in that country.
Castro-Perez testified that she did not report her rapes to the police because she "thought they were not willing to do anything because they would say that we were boyfriend and girlfriend and that they would not say or think that that was [not] normal." She also testified she was afraid of how her father, who had beaten her in the past, would react. Apart from this testimony, which does not compel a finding that the Honduran government is unwilling or unable to control rape in that country, the record is limited to the information contained in the Country Report profile of Honduras. That information is not particularly enlightening.
The Country Report contains evidence that domestic violence is widespread despite attempts to strengthen domestic abuse law. However, Honduras appears to treat rape separately from "domestic violence" because domestic violence is defined...
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