Cecil Zelaya Reyes v. Loretta E. Lynch , 608 F. App'x 518 ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 26 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
CECIL SOFIA ZELAYA REYES; et al., No. 12-71233
Petitioners, Agency Nos. A089-666-276
A089-666-277
v. A089-666-278
A089-666-279
LORETTA E. LYNCH, Attorney General,
Respondent. MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted June 11, 2015
San Francisco, California
Before: CHRISTEN and WATFORD, Circuit Judges, and ROTHSTEIN,** Senior
District Judge.
Cecil Sofia Zelaya Reyes, a native and citizen of Honduras, petitions for
review of the BIA’s dismissal of her appeal from an IJ’s decision denying her
application for asylum and withholding of removal.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Barbara Jacobs Rothstein, Senior District Judge for the
U.S. District Court for the Western District of Washington, sitting by designation.
Page 2 of 3
1. The BIA concluded that Reyes has established neither past persecution
nor a well-founded fear of future persecution. We need not decide whether
substantial evidence supports the conclusion that Reyes failed to establish past
persecution. We conclude that substantial evidence does not support the
conclusion that Reyes failed to establish a well-founded fear of future persecution.
Reyes has presented “credible, direct, and specific evidence” supporting her
reasonable fear of future persecution in Honduras. Rusak v. Holder, 734 F.3d 894,
896 (9th Cir. 2013) (citing Duarte de Guinac v. INS, 179 F.3d 1156, 1159 (9th Cir.
1999)). Her husband intercepted a dangerous drug trafficker, Alex Adan Montes
Bobadilla, and her family came under threat right before her husband was to testify
against Bobadilla’s associates. Reyes feared that Bobadilla’s return to Honduras
might trigger an obligation on the part of her husband to testify against Bobadilla
himself, which could put her and her family in grave danger. The IJ found both
Reyes’ and her husband’s testimony credible.
That Reyes was not attacked or threatened for two and a half years before
she left Honduras does not fatally undermine her claim. See Lim v. INS, 224 F.3d
929, 935 (9th Cir. 2000). With Bobadilla at large in South America, the prospect
of Reyes’ husband testifying against him remained remote. Bobadilla’s extradition
to Honduras created a reasonable possibility that Reyes’ husband would be called
Page 3 of 3
to testify, and such a possibility is enough to establish a well-founded fear of future
persecution. See INS v. Cardoza-Fonseca, 480 U.S. 421, 431, 439–40 (1987).
We leave to the BIA to determine on remand, in accordance with its
customary evidentiary procedures, whether Bobadilla’s reported death impacts the
persecution analysis.
2. Because the BIA did not reach the question whether Reyes is a member
of a particular social group for asylum purposes, we remand the case to the BIA to
make that determination in the first instance. See INS v. Ventura, 537 U.S. 12,
16–17 (2002) (per curiam).
PETITION FOR REVIEW GRANTED and REMANDED.