Andrea Castillanos Retana v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 23 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANDREA CASTILLANOS RETANA, No. 19-72153
Petitioner, Agency No. A202-131-045
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 8, 2021
Pasadena, California
Before: W. FLETCHER, WATFORD, and HURWITZ, Circuit Judges.
Andrea Castillanos Retana petitions for review of a Board of Immigration
Appeals (BIA) decision dismissing her appeal from an order of an immigration
judge (IJ) denying her application for asylum, withholding of removal, and
protection under the Convention Against Torture (CAT). We grant Castillanos
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Page 2 of 4
Retana’s petition as to the denial of asylum and withholding of removal based on
gang-related threats. We deny the petition as to the remainder of her claims.
1. The BIA’s determination that Castillanos Retana failed to establish past
persecution is not supported by substantial evidence. Although “unfulfilled
threats, without more” generally do not establish past persecution, we have
recognized that, in “a small category of cases,” threats may be “so menacing” as to
constitute past persecution on their own. Lim v. INS, 224 F.3d 929, 936 (9th Cir.
2000). Castillanos Retana’s encounter falls within this small category of cases.
She was not merely threatened with death, as in some of our past cases. Rather,
gang members delivered their threat in a face-to-face encounter with Castillanos
Retana in which one gang member grabbed her arm and another pointed a gun at
her head. That conduct was sufficiently menacing to rise to the level of
persecution. See Ruano v. Ashcroft, 301 F.3d 1155, 1160–61 (9th Cir. 2002)
(holding that threats constituted past persecution where petitioner was “closely
confronted” by armed men). Castillanos Retana fled El Salvador just three days
after the encounter and she did not leave her house in the intervening days. That
the gang members did not follow through on their threat is of little probative value
in assessing the threat’s severity.
Because the BIA erred in finding that Castillanos Retana failed to establish
past persecution, it did not apply the correct burden of proof in assessing her fear
Page 3 of 4
of future persecution and the possibility of relocation. Castillanos Retana should
have been afforded the presumption of a well-founded fear of future persecution
and the government should have borne the burden of rebutting that presumption
and demonstrating that relocation was reasonable. See 8 C.F.R.
§§ 1208.13(b)(1)(i)(B), (b)(1)(ii), 1208.16(b)(1)(i)(B), (b)(1)(ii). We therefore
remand for the BIA to reconsider Castillanos Retana’s eligibility for asylum and
withholding of removal after affording the presumption and applying the correct
burden of proof.
2. The BIA’s decision upholding the IJ’s denial of Castillanos Retana’s
asylum and withholding of removal claims based on the physical and sexual abuse
she suffered as a child is supported by substantial evidence. The IJ properly
concluded that Castillanos Retana failed to establish an objectively reasonable fear
of future persecution based on this abuse because she is now an adult capable of
living apart from her father and stepfather.
3. Substantial evidence also supports the BIA’s conclusion that Castillanos
Retana is not eligible for CAT protection. Generalized evidence that gang-related
violence and violence toward women are common in El Salvador is insufficient to
show that Castillanos Retana is “more likely than not” to be tortured if returned to
El Salvador. See 8 C.F.R. § 1208.16(c)(2); Delgado-Ortiz v. Holder, 600 F.3d
1148, 1152 (9th Cir. 2010).
Page 4 of 4
PETITION FOR REVIEW GRANTED in part and DENIED in part;
CASE REMANDED.
The parties shall bear their own costs.