Castro-Perez v. Gonzales ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
INGRID YAMILETH CASTRO-PEREZ, 
Petitioner, No. 03-73444
v.
 Agency No.
A77-620-333
ALBERTO R. GONZALES,* Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 15, 2005**
San Francisco, California
Filed June 1, 2005
Before: John T. Noonan, David R. Thompson, and
Pamela Ann Rymer, Circuit Judges.
Opinion by Judge Thompson
*Alberto R. Gonzales is substituted for his predecessor, John Ashcroft,
as Attorney General of the United States, pursuant to Fed. R. App. P.
43(c)(2).
**This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
5937
CASTRO-PEREZ v. GONZALES 5939
COUNSEL
Phyllis A. Beech, Fresno, California, for the petitioner.
Shelly R. Goad, United States Department of Justice, Wash-
ington, D.C., for the respondent.
5940 CASTRO-PEREZ v. GONZALES
OPINION
THOMPSON, Senior Circuit Judge:
Petitioner Ingrid Yamileth Castro-Perez, a young woman
from Honduras, petitions for review of the Board of Immigra-
tion 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 Conven-
tion 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 Hondu-
ras, is a crime the Honduran government is unable or unwill-
ing 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 (1992). We also deny her claim for relief under
the Convention Against Torture, because she has not “specifi-
cally and distinctly argued and raised” that issue in her peti-
tion to this court. See Arpin v. Santa Clara Valley Trans.
Agency, 261 F.3d 912, 919 (9th Cir. 2001).
I
BACKGROUND
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.
CASTRO-PEREZ v. GONZALES 5941
Hernandez raped Castro-Perez again and she became preg-
nant. She did not report that rape either. Instead, she fled to
the United States in June 1999 intending to live with her sis-
ter, who was residing in Colorado. Castro-Perez was appre-
hended 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 Conven-
tion 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 testi-
fied 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. Depart-
ment 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
1
The Penal Code of Honduras’ definition for violacion (rape) is: “Carnal
intercourse with a person of one or the other sex by means of violence or
by threat of causing a grave and imminent harm [to] a passive subject, that
subject’s spouse or live-in-companion, or one of his or her relatives to the
fourth degree of consanguinity or the second degree of affinity, constitutes
the crime of rape.” Código penal de Honduras, Libro II Parte Especial,
Titulo II, Articulo 140. We take judicial notice of this law. Cf. Dulles v.
Katamoto, 256 F.2d 545, 547 (9th Cir. 1958) (taking judicial notice of Jap-
anese law).
5942 CASTRO-PEREZ v. GONZALES
withholding of removal and relief under the Convention
Against Torture. The BIA summarily affirmed the IJ’s deci-
sion without opinion. Castro-Perez petitions this court for
review.
II
DISCUSSION
When, as here, the BIA affirms the IJ’s decision without
opinion, the order of the IJ “constitutes the final agency deter-
mination,” 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.
[1] To be eligible for asylum, Castro-Perez must demon-
strate 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 par-
ticular social group, or political opinion. 8 U.S.C.
§ 1101(a)(42)(A); see INS v. Cardoza-Fonseca, 480 U.S. 421,
428 (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 responsi-
ble, 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).
[2] 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 mem-
bership in that group, her asylum claim fails because she has
CASTRO-PEREZ v. GONZALES 5943
not shown that an agent of the government of Honduras com-
mitted the rapes, or that the government of Honduras is
unable or unwilling to control rape in that country.
[3] 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 con-
tained in the Country Report profile of Honduras. That infor-
mation is not particularly enlightening.
The Country Report contains evidence that domestic vio-
lence is widespread despite attempts to strengthen domestic
abuse law. However, Honduras appears to treat rape sepa-
rately from “domestic violence” because domestic violence is
defined as “any act harming the bodily integrity of a woman
which was not classified as a crime in the Penal Code.” Rape
is classified as a crime in the Penal Code. The Country Report
states with respect to rape that: “The penalties for rape are rel-
atively light, ranging from 3 to 9 years’ imprisonment. All
rapes are considered public crimes, so a rapist can be prose-
cuted even if he marries his victim.”
[4] Crediting Castro-Perez’s testimony, and considering the
other evidence in the record before us, we are unable to con-
clude that a reasonable trier of fact would be compelled to
find that the Honduran government must bear some responsi-
bility for Castro-Perez’s rapes because it is either unable or
unwilling to control rape in that country. Castro-Perez bore
the burden of establishing that factor. 8 C.F.R. §§ 208.13(a)
& 16(b). She did not carry that burden. Accordingly, we must
deny her petition for review of the denial of her asylum claim.
Because she failed to establish eligibility for asylum, we must
5944 CASTRO-PEREZ v. GONZALES
also deny her petition for review of the denial of her claim for
withholding of removal. Ghaly v. INS, 58 F.3d 1425, 1429
(9th Cir. 1995).
[5] Castro-Perez also sought relief under the Convention
Against Torture. To obtain such relief, she had to show it is
“more likely than not that she would be tortured if removed.”
8 C.F.R. § 1208.16(c)(2). Her only assertion in support of this
claim is that “[i]nasmuch as the standard of withholding of
removal under the Convention Against Torture is the same as
that for restriction on removal, she is likewise entitled to with-
holding.” This statement is incorrect; this court has specifi-
cally stated the standards are distinct. See Kamalthas v. INS,
251 F.3d 1279, 1283 (9th Cir. 2001). Because Castro-Perez
has not “specifically and distinctly argued and raised” the
issue of relief under the Convention Against Torture, she has
waived that claim. See Arpin, 261 F.3d at 919.
PETITION DENIED.