Ilcia Aveli Perez v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ILCIA AVELI PEREZ,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 11-72031
Agency No. A078-654-287
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 17, 2016
San Francisco, California
Before: GOULD, BYBEE,** and FRIEDLAND, Circuit Judges.
Ilcia Aveli Perez, a 41-year-old native and citizen of Guatemala, petitions
for review of the Board of Immigration Appeals’ (BIA’s) denial of her application
for asylum and withholding of removal. The main question on appeal is whether
FILED
JAN 03 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
After oral argument in this case, Judge Bybee replaced Judge Noonan
on this panel.

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substantial evidence supports the BIA’s determination that Perez did not face
persecution “on account of” her membership in a group of “Guatemalan
women who object to being forced into a marital relationship.” See Parussimova v.
Mukasey, 555 F.3d 734, 739 (9th Cir. 2008). Substantial evidence does not support
the BIA’s decision. Perez presented both direct and circumstantial evidence
showing that her resistance to marital requests was “at least one central reason” for
her persecution. 8 U.S.C. § 1158(b)(1)(B)(I); INS v. Elias-Zacarias, 502 U.S. 478,
483 (1992). That evidence included (1) Perez’s credible, uncontroverted testimony
that her assailant harassed and attempted to rape her because she objected to
marrying him; (2) Perez’s testimony that two of her cousins were harassed, raped,
and attacked for resisting marital requests; and (3) the U.S. Department of State’s
2009 country report and several newspaper articles, all of which described violence
against women in Guatemala.
To the extent the BIA held that Perez had not established past persecution,
the BIA also erred. The repeated harassment, the threats, and the attempted rape
that Perez suffered were sufficiently serious to amount to past persecution, see
Lopez-Galarza v. INS, 99 F.3d 954, 959 (9th Cir. 1996) (“[R]ape or sexual assault
. . . may constitute persecution.”), and Perez presented credible evidence that she
reported the attempted rape to no avail, sufficiently demonstrating that the police
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were unwilling or unable to help her, see Singh v. INS, 94 F.3d 1353, 1360 (9th
Cir. 1996) (concluding that the government was unable or unwilling to protect the
petitioner and his family when petitioner reported his assaults to the police and
identified his assailants, but the police failed to respond).
Although we hold that Perez demonstrated that the persecution she faced has
the required nexus to her claimed social group, we cannot decide in the first
instance whether that group is a cognizable social group. The BIA did not reach
that issue, and the BIA must have “the opportunity to address the matter in the first
instance in light of its own expertise.” INS v. Ventura, 537 U.S. 12, 17 (2002). We
also note that the BIA’s decision below predated our en banc decision in
Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc), which
clarified the appropriate social-group analysis.
We therefore GRANT the petition and REMAND the case to the BIA for
further proceedings consistent with this decision.
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