REBECA CRISTOBAL ANTONIO V. MERRICK GARLAND, No. 21-70624 (9th Cir. 2023)
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Petitioner, a native and citizen of Guatemala, petitioned 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”). Petitioner 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. Petitioner challenged 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 Ninth Circuit granted Petitioner’s petition for review. The panel held that (1) substantial evidence did not support the agency’s determination that the treatment Petitioner suffered did not amount to persecution, (2) the agency erred in characterizing Petitioner’s proposed social group and concluding that it was not cognizable, and (3) the agency erred by failing to consider highly probative evidence regarding the Guatemalan government’s willingness or ability to control the persecution.
The panel explained that in concluding that this treatment amounted simply to threats, the immigration judge failed to recognize that threats may be compelling evidence of past persecution, particularly when the threats are specific and menacing and accompanied by violent confrontations, near-confrontations and vandalism. Further, the panel wrote that the record suggested that the agency failed to consider all of the evidence.
Court Description: Immigration Granting Rebeca Cristobal Antonio’s petition for review of the Board of Immigration Appeals’ decision upholding the denial of asylum and related relief, and remanding, the panel held that (1) substantial evidence did not support the agency’s determination that the treatment Antonio suffered did not amount to persecution, (2) the agency erred in characterizing Antonio’s proposed social group and concluding that it was not cognizable, and (3) the agency erred by failing to consider highly probative evidence regarding the Guatemalan government’s willingness or ability to control the persecution. Individuals in Antonio’s community verbally and physically harassed and threatened her with death because they perceived her to be a lesbian because she wore men’s clothing to work. Specifically, Antonio’s neighbors threatened that if she dressed in men’s clothing they would “get together and burn her down and whip her,” and told her that if she did not leave the community, they would kill her. The panel explained that in concluding that this treatment amounted simply to threats the immigration judge failed to recognize that threats may be compelling evidence of past persecution, particularly when the threats are specific and menacing and accompanied by violent confrontations, near-confrontations and vandalism. ANTONIO V. GARLAND 3 The panel explained that in this case, the record revealed much more than threats alone. A crowd met Antonio at her workplace and threatened to lynch and burn her if she did not remove the men’s clothing. Her neighbors told her husband they believed she was bisexual or lesbian, and even spoke with her grandparents, who were scared for her safety. Community members took her to the police because they perceived her to be a lesbian, and Antonio’s family members violently attacked her. Taken together, the panel concluded that the death threats, mob violence, involuntary transport to the police station, and repeated whipping by her uncles compelled the conclusion that Antonio suffered past persecution. Antonio asserted that she was persecuted on account of her membership in a social group comprised of “wom[e]n in Guatemala who are perceived to have male tendencies and are seen as dangerous to the community.” The IJ found this articulation too “amorphous” and reasoned that the style of Antonio’s dress was not an immutable characteristic qualifying as a particular social group. The IJ further stated that Antonio’s claim was not a gender or sexual orientation issue because Antonio indicated that she was not a lesbian. The panel wrote that this finding ignored Antonio’s arguments before both the IJ and the BIA that she belonged to a different particular social group comprised of “women in Guatemala who are perceived to be lesbian.” The panel explained that the agency is not free to ignore arguments raised before it, and that the failure to address a social group claim, or failure to analyze such a claim under the correct legal standard, constitutes error and requires remand. The panel observed that although this court has discussed the issue, neither this court in a published opinion, nor the BIA, has explicitly recognized perceived or imputed sexual 4 ANTONIO V. GARLAND orientation as a cognizable social group. The panel remanded for the agency to determine whether women in Guatemala perceived to be lesbian constitute a particular social group, and if so, whether Antonio’s persecution was on account of her membership in that group. In concluding that Antonio did not show persecution committed by the government or by forces that the government was unwilling or unable to control, the IJ’s analysis focused on Antonio’s complaint to the Justice of the Peace and the Justice of the Peace’s decision to remit the matter for criminal investigation. The panel explained that this decision does not end the inquiry, as the government’s failure to take promised future action may establish that the government was either unable or unwilling to exercise such control. The panel wrote that in this case no record evidence indicated whether the criminal referral by the Justice of the Peace led to any arrests, criminal prosecution, or other action by authorities to minimize the threats against Antonio. Further, the panel wrote that the record suggested that the agency failed to consider all of the evidence, such as Antonio’s statements that the mayor of her village “would be behind [her neighbors] if they try to kill [her],” and that she fears the mayor the most because “[h]e is the one who has the last decision whether to kill me or not.” Moreover, the panel wrote that the record revealed that the police took some action to end Antonio’s harassment temporarily but did not make any arrests—even when the police arrived at the scene of a crowd threatening to kill Antonio. The panel noted that the IJ did not explicitly address evidence that the death threats continued despite police awareness. Nor did it address the abuse Antonio’s uncles inflicted against her. ANTONIO V. GARLAND 5 Finally, the panel observed that although the IJ considered the Country Condition Report as to Antonio’s CAT claim, the report indicated that Guatemala’s antidiscrimination laws do not apply to LGBTI individuals who often face police abuse, and that the government’s efforts to address widespread discrimination against LGBTI people have been “minimal.” The panel noted that the IJ found the report irrelevant because Antonio stated she is not a lesbian. However, given the reasons for remand of Antonio’s social group claim, the panel wrote that the agency might view this country report evidence differently on remand. Concurring, Judge Sanchez wrote separately to address the question of perceived or imputed sexual orientation and whether such group should be recognized as a particular social group. Judge Sanchez agreed that neither this court nor the BIA has recognized in published authority that such a group would qualify, and that remand was warranted for the BIA to address this issue in the first instance. Judge Sanchez explained, however, that under longstanding circuit and BIA precedent involving persecution on account of imputed protected characteristics and addressing the importance of the perception of the persecutor, the answer to this question seems clear that perceived or imputed sexual orientation would qualify as a particular social group. 6 ANTONIO V. GARLAND
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