Summary
The Ninth Circuit granted in part and denied in part a petition for review of a Board of Immigration Appeals decision denying asylum, withholding of removal, and protection under the Convention Against Torture. The court held that the record compelled the conclusion that reporting the petitioner's abuse to Honduran authorities would have been futile and that the government was unable or unwilling to protect her, and it remanded for further proceedings on the asylum and withholding claims. The court declined to address the unexhausted CAT claim; Judge Friedland concurred in part and in the judgment regarding the nexus analysis.
Topics
Practice areas
Questions Presented
- Whether the record compelled the conclusion that the Honduran government was unable or unwilling to protect Guevara-Serrano from her partner's abuse despite her failure to report the abuse.
- Whether the petition for review should be granted as to the asylum and withholding-of-removal claims.
- Whether the court could address Petitioners' CAT claim when they had not challenged the CAT denial before the BIA.
Holdings
- Reporting the abuse to the authorities is not required. The failure to report is a factor that may be considered, but the relevant inquiry is whether the government both could and would provide protection.
- The record compelled the conclusion that the Honduran government was unable or unwilling to protect Guevara-Serrano from Oscar's abuse, and that reporting the abuse would have been futile and likely to result in further harm.
- The court did not address the CAT claim because Petitioners failed to challenge the immigration judge's CAT denial before the BIA, rendering the claim unexhausted.
Key quotations
“Accordingly, the relevant inquiry is “whether the government both ‘could and would provide protection.’”” (7)
“We repeated what we said in Bringas-Rodriguez: “our rule [is] that reporting is not required.”” (7)
“The conclusion compelled by Petitioner’s testimony concerning the danger she faced from Oscar, his violent outbursts when she sought refuge at church, and his death threats deterring her from reporting him, as well as by the country conditions report documenting uncontrollable violence against women in Honduras, is that an attempt to report would not only have been futile, it would also have been likely to result in further harm to Petitioner.” (10)
Factual background
Gaby Gisselle Guevara-Serrano, a Honduran citizen, suffered repeated beatings from her partner, Oscar, who was a gang member and abused drugs and alcohol. During one beating, Oscar stabbed her in the stomach; he also threatened to kill her if she reported him and abused her when she attempted to attend church. Police had previously arrested Oscar after he assaulted a man but released him the following day, and Guevara-Serrano did not report her own abuse.
Procedural history
An immigration judge denied Petitioners' applications for asylum, withholding of removal, and CAT protection. The Board of Immigration Appeals dismissed the appeal and affirmed the denial of asylum and withholding based on Petitioners' failure to report the abuse or demonstrate that reporting would have been futile; it deemed the CAT claim waived. The Ninth Circuit granted the petition in part, denied it in part, and remanded for further proceedings.
Remand instructions
Remand to the agency for further consideration of the remaining elements of the asylum and withholding-of-removal inquiries. The court held that the government-protection element was satisfied; the CAT claim remains unaddressed because it was unexhausted. The temporary stay of removal remains in place until the mandate issues.