MARIA TOBAR GALDAMES, AKA Maria Sara Tobar Galdamez v. JEFFERSON B. SESSIONS III, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIA TOBAR GALDAMES, AKA
Maria Sara Tobar Galdamez,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
No. 12-74197
Agency No. A087-760-816
MEMORANDUM *
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted September 15, 2016
San Francisco, California
Before: W. FLETCHER, CHRISTEN, and FRIEDLAND, Circuit Judges.
Maria Tobar Galdames, a native and citizen of El Salvador, petitions for
review of the Immigration Judge’s (“IJ’s”) and Board of Immigration Appeal’s
(“BIA’s”) (together, “the agency’s”)1 denial of her claim for withholding of
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1 The BIA in this case affirmed based on the reasoning and conclusions of the IJ
while appearing to add some of its own reasoning and analysis. In such a
FILED
APR 19 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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removal. Galdames’s withholding claim is based on abuse that she suffered at the
hands of her former boyfriend. We conclude that the agency applied an incorrect
legal standard, and thus abused its discretion, in denying withholding of removal.
To demonstrate past persecution, Galdames bears the burden to show that
the persecution she suffered was either committed by the Salvadoran government
or by persons the government was unable or unwilling to control. See Ornelas-
Chavez v. Gonzales, 458 F.3d 1052, 1056 (9th Cir. 2006). The IJ and the BIA held
that Galdames could not demonstrate past persecution because she had failed to
report her abuse. However, it is well-settled in this circuit that a petitioner’s failure
to report her abuse to authorities does not operate as a per se bar to withholding but
is instead “a factor that may be considered, as is credible testimony or
documentary evidence explaining why a victim did not report.” Bringas-
Rodriguez v. Sessions, 850 F.3d 1051, 1069 (9th Cir. 2017) (en banc); see also
Ornelas-Chavez, 458 F.3d at 1058 (“[A]n applicant who seeks to establish
eligibility for withholding of removal . . . need not have reported [the] persecution
to the authorities if [she] can convincingly establish that doing so would have been
futile or would have subjected [her] to further abuse.”). The agency therefore erred
in concluding that Galdames’s failure to report her abuse disqualified her from
circumstance, we review the decisions of both the IJ and the BIA. Huang v.
Holder, 744 F.3d 1149, 1152 (9th Cir. 2014).

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withholding of removal.2
We GRANT the petition and REMAND the case to the BIA for further
proceedings consistent with this decision.
2 Because the agency concluded that Galdames had not suffered past persecution, it
placed the burden on Galdames to demonstrate that she could not safely and
reasonably relocate within El Salvador. If, after applying the correct legal standard
on remand, the BIA concludes that Galdames suffered past persecution, the
Government—not Galdames—would bear the burden to show that she could safely
and reasonably relocate. See 8 C.F.R. § 1208.16(b)(1)(ii).

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