21-6293-ag Castellanos-Ventura v. Garland

United States Court of Appeals for the Second Circuit August Term, 2023

(Submitted: May 28, 2024 Decided: September 13, 2024)

Docket No. 21-6293-ag

_____________________________________

BESSY ORBELINA CASTELLANOS-VENTURA,

Petitioner,

v.

MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL,

Respondent.

Before:

NEWMAN, LOHIER, and PÉREZ, Circuit Judges.

Petitioner Bessy Orbelina Castellanos-Ventura, a citizen of Honduras, seeks review of a decision of the Board of Immigration Appeals (BIA) affirming a decision of an Immigration Judge denying her application for asylum, withholding of removal, and relief under the Convention Against Torture. The agency assumed without deciding that Castellanos-Ventura had suffered past persecution on account of her membership in a cognizable social group of Honduran women. The agency nevertheless denied her application because it found that she failed to show that the Honduran government was “unable or unwilling to control” her persecutors. Because we agree with Castellanos- Ventura that the agency incorrectly applied the “unable or unwilling to control” standard, the petition for review is GRANTED, and the case is REMANDED to the BIA for proceedings consistent with this opinion.

H. Esteban Figueroa-Brusi, New York, NY, for Petitioner.

Brian Boynton, Principal Deputy Assistant Attorney General; Melissa Neiman-Kelting, Assistant Director; Jeffrey M. Hartman, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC, for Respondent.

PER CURIAM:

Petitioner Bessy Orbelina Castellanos-Ventura, a native and citizen of

Honduras, seeks review of an April 19, 2021 decision of the Board of

Immigration Appeals (BIA) affirming a February 26, 2019 decision of an

Immigration Judge (IJ) denying her application for asylum, withholding of

removal, and relief under the Convention Against Torture (CAT). In re Bessy

Orbelina Castellanos-Ventura, No. A206 488 725 (B.I.A. Apr. 19, 2021), aff’g No.

A206 488 725 (Immig. Ct. N.Y.C. Feb. 26, 2019). The agency assumed without

deciding that Castellanos-Ventura had suffered past persecution on account of

her membership in a cognizable social group of Honduran women and was

abused as a child for much of the time relevant to this petition. It nevertheless

2 denied her asylum claim because it found that Castellanos-Ventura failed to

show that the Honduran government was “unable or unwilling to control” her

persecutors.

We agree with Castellanos-Ventura that the agency incorrectly applied the

“unable or unwilling to control” standard in this case. First, the agency failed to

consider whether it would have been futile for an abused child to seek protection

from the Honduran government. Second, the agency failed to consider

significant record evidence that the Honduran government was unable to protect

children or women from intrafamilial and criminal violence. The petition for

review is therefore GRANTED, and the case is REMANDED to the BIA for

proceedings consistent with this opinion. 1

BACKGROUND

Castellanos-Ventura entered the United States without inspection in 2014

and was placed in removal proceedings. The following year, she applied for

asylum, withholding of removal, and CAT relief. Relevant to this appeal,

1 Our decision in this matter originally appeared in an unpublished summary order issued on July 11, 2024. Castellanos-Ventura subsequently moved to have our decision published. Because we are persuaded that this decision may be helpful to guide future cases if it has some precedential value, we grant the motion and publish our disposition. 3 Castellanos-Ventura asserted that she experienced past persecution on account of

her status as a Honduran woman.

After an asylum hearing, the IJ found that Castellanos-Ventura had

credibly testified that her mother had physically abused her starting at the age of

seven and that her stepfather, grandfather, and uncle had thereafter sexually

abused her. Castellanos-Ventura also credibly testified that she was threatened

and raped multiple times by a local contract killer after she moved out of her

family home. Castellanos-Ventura explained that she never reported the abuse

to Honduran authorities because she did not believe that they would help her.

As an initial matter, the IJ assumed without deciding that Castellanos-

Ventura’s proposed social group of Honduran women was cognizable and that

her abusers targeted her on account of membership in that group. The IJ

nevertheless denied her application for asylum after finding that she failed to

show that Honduran officials were unable or unwilling to prevent her

persecution. The IJ emphasized that Castellanos-Ventura never attempted to

report the abuse to the police, noted that Castellanos-Ventura’s mother secured a

restraining order against one of the sexual abusers, and also observed that the

Honduran government worked to protect victims of rape and domestic violence.

4 Castellanos-Ventura’s failure to sustain her asylum claim doomed her

claim for withholding of removal, and the IJ’s “unable or unwilling to control”

finding also meant that Castellanos-Ventura could not prove government

acquiescence as required for CAT relief. See

(a)(1).

Castellanos-Ventura appealed to the BIA, which adopted the IJ’s reasoning

that Castellanos-Ventura had not established that Honduran officials were

unable or unwilling to protect her, affirmed the IJ’s decision, and dismissed the

appeal. Castellanos-Ventura filed a timely petition for review.

DISCUSSION

Under the circumstances, we review the IJ’s decision as modified by the

BIA and do not address the findings the BIA declined to reach or found

abandoned. See Xue Hong Yang v. U.S. Dep’t of Just.,

(2d Cir.

2005). We review factual findings for substantial evidence and questions of law

and the application of law to fact de novo. See Ojo v. Garland,

(2d

Cir. 2022). “[T]he administrative findings of fact are conclusive unless any

reasonable adjudicator would be compelled to conclude to the contrary.”

(b)(4)(B).

5 An applicant for asylum and withholding of removal has the burden to

establish past persecution or fear of future persecution “on account of race,

religion, nationality, membership in a particular social group, or political

opinion.”

(a)(42); see also

(a), 1208.16(b).

Evidence of physical abuse and violence at the hands of government agents is

relevant to whether the petitioner has experienced past persecution or has a well-

founded fear of future persecution. See Beskovic v. Gonzales,

, 225‒26

(2d Cir. 2006). “Private acts can also constitute persecution if the government is

unable or unwilling to control such actions.” Pan v. Holder,

(2d

Cir. 2015).

In this case, the agency assumed, without deciding, that Castellanos-

Ventura suffered harm rising to the level of persecution on account of her

membership in a cognizable social group of Honduran women. But it found that

Castellanos-Ventura failed to show that the Honduran government was “unable

or unwilling to control” her persecutors and accordingly rejected her claim. “[A]

denial of immigration relief stands or falls on the reasons given by the IJ or BIA

because it would usurp the role of the agency for a reviewing court to assume a

hypothetical basis for the IJ’s determination, even one based in the record.” Lin

6 Zhong v. U.S. Dep’t of Just.,

(2d Cir. 2007) (quotation marks

omitted), abrogated on other grounds by Santos-Zacaria v. Garland,

(2023). We therefore address only the agency’s “unable or unwilling to control”

finding.

“Under the unwilling-or-unable standard, a finding of persecution

ordinarily requires a determination that government authorities, if they did not

actually perpetrate or incite the persecution, condoned it or at least demonstrated

a complete helplessness to protect the victims.” Singh v. Garland,

,

114–15 (2d Cir. 2021) (quotation marks omitted). “[F]ailure to report harm is not

necessarily fatal to a claim of persecution if the applicant can demonstrate that

reporting private abuse to government authorities would have been futile or

dangerous.” Matter of C-G-T-,

(B.I.A. 2023) (quotation

marks omitted); cf. Quintanilla-Mejia v. Garland,

(2d Cir. 2021)

(“[F]ailure to ask for police help is not enough, by itself, to preclude a finding of

acquiescence.”).

In deciding that Castellanos-Ventura failed to show that Honduran

officials were unable or unwilling to protect her from her abusive family and a

criminal who repeatedly attacked her, the agency relied in part on the fact that

7 she never sought police protection even though her mother had successfully

obtained a restraining order against an abuser. The agency reasonably relied in

part on Castellanos-Ventura’s failure to report. See Matter of C-G-T-,

; see also Quintanilla-Mejia,

. But it failed to consider

whether it would have been “futile or dangerous for an abused child,” as

Castellanos-Ventura was during much of her abuse, “to seek protection from the

authorities.” Matter of C-G-T-,

. The BIA itself has

recognized that “[w]hen a child is being abused by a parent or relative, the child

may be prevented by their abuser from contacting the authorities, or any attempt

to report the harm might worsen the child’s circumstances.” Id.; see also Portillo

Flores v. Garland,

, 635–36 (4th Cir. 2021) (directing the agency to

“engage in a child-sensitive evaluation of whether [Petitioner] was justified in

not seeking police protection” (quotation marks omitted)).

Beyond Castellanos-Ventura’s failure to report the abuse and violence she

suffered, the agency relied on one page of the State Department’s 2017 Human

Rights Report addressing rape and domestic violence against women. The

agency drew from the report that the Honduran government was making efforts

to protect women from violence given evidence that the state prosecutes rapists

8 and those who commit domestic violence, courts enforce penalties for rape and

domestic violence, the state penalizes those who violate restraining orders, and

the state has reporting centers for abused women in two cities. The agency erred,

however, by relying on only this one source without acknowledging or

evaluating conflicting evidence. See Scarlett v. Barr,

(2d Cir.

2020) (finding error in the agency’s failure to mention evidence that “authorities,

however willing, were nevertheless unable to protect [Petitioner] from gang

violence”); Poradisova v. Gonzales,

(2d Cir. 2005) (requiring “a

certain minimum level of analysis . . . if judicial review is to be meaningful”);

Tian-Yong Chen v. INS,

(2d Cir. 2004) (finding error when the

agency relies excessively on State Department reports without considering “any

contrary or countervailing evidence with which it is presented, as well as the

particular circumstances of the applicant’s case demonstrated by testimony and

other evidence”).

Further, much of Castellanos-Ventura’s claim was based on harm she

suffered between ages seven and seventeen at the hands of family members, but

the agency failed to mention or evaluate any evidence related to the state’s ability

to protect children who are subject to intrafamilial violence and abuse. That

9 evidence includes a report of the Immigration and Refugee Board of Canada that

found that police complaint mechanisms are not effective and that penalties for

intrafamily violence are very low, see, e.g., Regmi v. Barr,

, 747 (2d

Cir. 2020) (concluding that the IJ reasonably relied on a report of the Immigration

and Refugee Board of Canada); accord Singh,

, and the State

Department’s acknowledgement that, of the hundreds of homicides of children

that occurred in the first half of 2017, eighty percent went unsolved. Similarly,

insofar as Castellanos-Ventura was repeatedly attacked, raped, and threatened

by a criminal, the agency did not evaluate the following evidence that criminals

commit violence against women with impunity in Honduras: The Immigration

and Refugee Board of Canada reported that some Honduran officials tell women

not to file complaints because it would put them in more danger; a Latin

American Research Review article concluded that reporting violence appeared to

be useless for women given the lack of protection such reporting guaranteed,

high impunity for criminals, and collaboration between government officials and

criminals; Amnesty International reported that impunity is high in cases of

violence against women because officials do not have the capacity or resources to

investigate, prosecute, or punish criminals; Human Rights Watch reported that

10 the police and judiciary are mostly ineffective; and a Latin America Working

Group report concluded that the vast majority of femicide cases are not

investigated or prosecuted.

Although the agency acknowledged that violence against women is a

problem in Honduras, its failure to acknowledge or discuss the evidence of the

difficulties children and women face in reporting violence or the ineffectiveness

of the government’s response to such reports requires remand. See Scarlett,

; Poradisova,

; Tian-Yong Chen,

. The

agency’s failure to consider relevant evidence also infects its denial of CAT relief

because the agency relied entirely on the “unable or unwilling to control” finding

to conclude that Castellanos-Ventura failed to establish the government

acquiescence required for CAT relief. See

(a)(1); see also

Khouzam v. Ashcroft,

(2d Cir. 2004).

CONCLUSION

For the foregoing reasons, the petition for review is GRANTED, and the

case is REMANDED to the BIA for further proceedings consistent with this

opinion.

11