A. H. v. Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 18 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT A.H., No. 23-1483 Agency No. Petitioner, A095-570-707 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted July 8, 2024 San Francisco, California Before: FRIEDLAND, MENDOZA, and DESAI, Circuit Judges.

Petitioner seeks review of a decision by the Board of Immigration Appeals (BIA) affirming the Immigration Judge’s (IJ) denial of her applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252. When, as here, the BIA conducts its own review of the evidence and law rather than adopting the IJ’s decision, “our review is limited to the BIA’s decision, except to the extent that the IJ’s opinion is expressly adopted.” Soriano-Vino v. Holder, 653 F.3d 1096, 1099 (9th Cir. 2011) (quotation marks and citation omitted). Reviewing the BIA’s factual findings for substantial evidence and its legal conclusions de novo, Flores Molina v. Garland, 37 F.4th 626, 632 (9th Cir. 2022), we grant the petition in part and remand.

1. With respect to her asylum claim,1 Petitioner does not allege past persecution. Consequently, the burden remains on her to prove a well-founded fear of future persecution. See Hussain v. Rosen, 985 F.3d 634, 645–46 (9th Cir. 2021). To be well-founded, Petitioner’s “fear of persecution must be both subjectively genuine and objectively reasonable.” Sael v. Ashcroft, 386 F.3d 922, 924 (9th Cir. 2004). A petitioner can satisfy the subjective component by credibly testifying that she genuinely fears future persecution. Id. The objective component can be satisfied by showing “[e]ven a ten percent chance that the applicant will be persecuted in the future.” Id. at 925 (quoting Knezevic v. Ashcroft, 367 F.3d 1206, 1212 (9th Cir. 2004)). Lastly, Petitioner must also demonstrate that she cannot avoid future persecution by reasonably relocating within her country of origin. See Singh v. Garland, 97 F.4th 597, 606 (9th Cir. 2024). Here, Petitioner contends that she will be persecuted in her home country of Armenia on account of her abusive former husband and her sexual orientation.

The BIA found that Petitioner subjectively feared her former husband, but that this fear was not objectively reasonable. In support, the BIA relied on evidence that indicated Petitioner’s former husband does not appear to have a continued interest in harming her. Said differently, the BIA found that Petitioner was not even “ten percent” likely to be harmed by her former husband in Armenia. Canales-Vargas v. Gonzales, 441 F.3d 739, 743 (9th Cir. 2006) (quoting Sael, 386 F.3d at 925).

Substantial evidence supports this conclusion. See, e.g., Prasad v. INS, 47 F.3d 336, 339 (9th Cir. 1995).

However, with respect to Petitioner’s fear of harm on account of her sexual orientation, the BIA lost its footing. The BIA stated that Petitioner has not established that her fear of future persecution on account of her sexual orientation is objectively reasonable. But instead of citing to record evidence or adopting portions of the IJ’s order in support of this statement, the BIA proceeded to explain that Petitioner would be able to avoid persecution by relocating within Armenia. It is unclear whether the BIA denied Petitioner’s claim on the ground that she is unlikely to be persecuted in Armenia—because there is a less than ten percent likelihood of harm rising to the level of persecution anywhere in the country—or

2. A petitioner is entitled to withholding of removal if she can establish a clear probability that her life or freedom will be threatened upon return to her home country on account of “race, religion, nationality, membership in a particular social group, or political opinion.” Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir. 2010) (quoting Ahmed v. Keisler, 504 F.3d 1183, 1199 (9th Cir. 2007)). The clear probability standard for withholding of removal is more stringent than the well-founded fear standard for asylum because withholding of removal is a mandatory form of relief. Ahmed, 504 F.3d at 1199. Here, the BIA affirmed the IJ’s denial of Petitioner’s application for withholding of removal because it affirmed the IJ’s denial of her application for asylum. Accordingly, because the grounds for denying asylum are unclear and the withholding denial was premised on the asylum denial, we also remand for further proceedings on Petitioner’s withholding claim.

3. With respect to her application for relief under CAT, Petitioner bears “the burden of establishing that she will more likely than not be tortured with the consent or acquiescence of a public official if removed to her native country.”

Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1183 (9th Cir. 2020). Petitioner did not suffer past torture in Armenia, and there is nothing in the record to show that she is likely to suffer torture should she return to Armenia. See Hernandez v. Garland, 52 F.4th 757, 769 (9th Cir. 2022) (“Demonstrating torture requires a much greater showing of harm than demonstrating persecution, itself an extreme concept.”) (cleaned up). Substantial evidence also supports the BIA’s finding that Petitioner

PETITION GRANTED IN PART AND REMANDED.