Eulalia Gaspar-Bartolo v. Eric Holder, Jr. , 535 F. App'x 564 ( 2013 )

FILED
NOT FOR PUBLICATION JUL 31 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
EULALIA GASPAR-BARTOLO, No. 11-71704
Petitioner, Agency No. A088-915-319
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 24, 2013 **
Before: ALARCÓN, CLIFTON, and CALLAHAN, Circuit Judges.
Eulalia Gaspar-Bartolo, a native and citizen of Guatemala, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order summarily affirming
an immigration judge’s decision denying her application for asylum, withholding
of removal, and relief under the Convention Against Torture (“CAT”). We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence factual
findings. Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006). We grant
the petition for review and remand.
In evaluating Gaspar-Bartolo’s claim of past persecution, the BIA found that
the harm that she suffered did not rise to the level of persecution. However, in
reaching this conclusion, the BIA did not have the benefit of our intervening
decision in Mendoza-Pablo v. Holder, 667 F.3d 1308 (9th Cir. 2012). Gaspar-
Bartolo established that when she was a child, her father fled into exile and she, her
mother, and her siblings were forced to abandon their home multiple times due to
credible threats of abduction and death that they received from guerrillas. See id.
at 1314 (“being forced to flee from one’s home in the face of an immediate threat
of severe physical violence or death is squarely encompassed within the rubric of
persecution”); see also Hernandez-Ortiz v. Gonzales, 496 F.3d 1042, 1046 (9th
Cir. 2007) (“injuries to a family must be considered in an asylum case where the
events that form the basis of the past persecution claim were perceived when the
petitioner was a child”). Accordingly, we grant the petition for review and remand
to the BIA for further proceeding on Gaspar-Bartolo’s asylum and withholding of
removal claims.
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In light of this disposition, we do not reach Gaspar-Bartolo’s due process
claim.
Gaspar-Bartolo does not raise any arguments regarding the denial of CAT
relief. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996) (issues
not specifically raised and argued in a party’s opening brief are waived).
PETITION FOR REVIEW GRANTED; REMANDED.
3 11-71704