Mirta Castillo v. Eric Holder, Jr. , 447 F. App'x 832 ( 2011 )

FILED
NOT FOR PUBLICATION AUG 17 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MIRTA LIDIA CASTILLO, No. 09-71121
Petitioner, Agency No. A070-926-222
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 11, 2011 **
Before: THOMAS, SILVERMAN, and CLIFTON, Circuit Judges.
Mirta Lidia Castillo, a native and citizen of Guatemala, petitions for review
of the Board of Immigration Appeals’ order dismissing her appeal from an
immigration judge’s decision denying her applications for asylum, withholding of
removal, relief under the Convention Against Torture (“CAT”), and for special
*
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).
cancellation of removal under the Nicaraguan and Central American Relief Act of
1997 (“NACARA”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review
for substantial evidence the agency’s factual determinations. Njuguna v. Ashcroft,
374 F.3d 765, 769 (9th Cir. 2004). We dismiss in part and grant in part the petition
for review, and we remand.
We lack jurisdiction to review the agency’s determination that Castillo is not
eligible for NACARA relief. See Lanuza v. Holder, 597 F.3d 970, 972 (9th Cir.
2010) (per curiam).
Substantial evidence does not support the agency’s determination that
Castillo was not persecuted on account of a protected ground because the evidence
compels the conclusion that Castillo was assaulted, raped, and threatened by
members of the Guatemalan Civil Defense Patrol (“CDP”) on account of her
exposure of CDP misconduct to the police and a human rights organization. See
Njuguna, 374 F.3d at 770-71 (retaliation against a Kenyan petitioner who opposed
government corruption by helping domestic servants escape was on account of
political opinion); Reyes-Guerrero v. INS, 192 F.3d 1241, 1245-46 (9th Cir. 1999)
(death threats received after a Colombian prosecutor investigated political
corruption by an opposition political party constituted persecution on account of
political opinion). Accordingly, we grant the petition as to Castillo’s asylum and
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withholding of removal claims, and remand for further proceedings. See INS v.
Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).
In denying CAT relief, the agency failed to evaluate the rape of Castillo. See
Kamalthas v. INS, 251 F.3d 1279, 1282 (9th Cir. 2001) (torture includes severe
mental or physical pain or suffering inflicted for the purpose of punishing that
person for an act she or another person committed, or for the purpose of
intimidation); id. (agency must consider “evidence relevant to the possibility of
future torture”); see also Mohammed v. Gonzales, 400 F.3d 785, 802 (9th Cir.
2005) (evidence of past torture is relevant to determination of eligibility for CAT
relief). Accordingly, we also grant the petition as to CAT relief and remand for
further proceedings. See Ventura, 537 U.S. at 16-18.
The government shall bear the costs for this petition for review.
PETITION FOR REVIEW DISMISSED in part; GRANTED in part;
REMANDED.
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