United States v. 2020-08-17 | 18-70007 | MARIELA PASCUAL-JUAN V. WILLIAM BARR | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARIELA PASCUAL-JUAN,

Petitioner,

v.

WILLIAM P. BARR, Attorney General,

Respondent.

No. 18-70007

Agency No. A206-847-037

MEMORANDUM
*

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted July 17, 2020
San Francisco, California

Before: TASHIMA and HURWITZ, Circuit Judges, and MARSHALL,
**
District
Judge.

Mariela Pascual-Juan, a thirteen-year-old native and citizen of Guatemala,
petitions for review of a decision of the Board of Immigration Appeals (“BIA”)
dismissing her appeal from the order of an immigration judge (“IJ”) denying an

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

**
The Honorable Consuelo B. Marshall, United States District Judge for
the Central District of California, sitting by designation.
FILED

AUG 17 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2
application for asylum and withholding of removal.
1
We have jurisdiction under 8
U.S.C. § 1252 and grant the petition.
1. An applicant for asylum and withholding of removal must demonstrate
a well-founded fear or likelihood of future persecution, respectively. Guo v.
Sessions, 897 F.3d 1208, 1213 (9th Cir. 2018). Past persecution creates a rebuttable
presumption of future persecution. Id. Because she is a child, the harm Mariela
fears or has suffered “may be relatively less than that of an adult and still qualify as
persecution.” Hernandez-Ortiz v. Gonzales, 496 F.3d 1042, 1045–46 (9th Cir. 2007)
(cleaned up). “It is well established that physical violence is persecution.” Ming
Dai v. Sessions, 884 F.3d 858, 870 (9th Cir. 2018) (cleaned up).
The IJ misstated the record in concluding that Mariela suffered from only one
incident of physical violence in Guatemala. Mariela’s father, mother, and aunt all
stated that she was regularly beaten during her one-and-a-half years at school, which
culminated in classmates throwing stones at her head. Contrary to the IJ’s decision,
the father, whom the IJ found credible, did not testify otherwise. Instead, he stated
that although Mariela was not abused “when she started school,” she was regularly
subjected to physical violence thereafter.
When a child applies for asylum and withholding of removal, injuries to the

1
Mariela did not contest the IJ’s denial of her application for protection under
the Convention Against Torture before the BIA.

3
family should also be considered as part of the past persecution claim if they “were
perceived when the petitioner was a child.” Hernandez-Ortiz, 496 F.3d at 1046.
Mariela’s father was severely beaten for campaigning on behalf of an Evangelical
political candidate and her mother was sexually assaulted while being verbally
harassed for her religion. The IJ erred by not considering these incidents in
determining past persecution.
2. The agency also erred in analyzing the likelihood of future persecution.
Contrary to the IJ’s decision, Mariela was not required to identify specific
individuals or groups that would persecute her. Our caselaw requires only
circumstantial evidence of a persecutor’s identity or motives, see Canales-Vargas v.
Gonzales, 441 F.3d 739, 744 (9th Cir. 2006), and there was copious evidence of
persecution of native Evangelicals in Guatemala. The IJ also failed to consider acts
of violence against Mariela’s parents. See Korablina v. INS, 158 F.3d 1038, 1043,
1046 (9th Cir. 1998). Mariela’s parents claimed they suffered from a long history
of violence in Guatemala because of their ethnicity and religion.
PETITION FOR REVIEW GRANTED and REMANDED.
2

2
Although Mariela argues that we should find her eligible for asylum and
withholding of removal, the IJ pretermitted several issues concerning eligibility,
including the Guatemalan government’s inability or unwillingness to provide
protection and the possibility of internal relocation. In contrast to Mamouzian v.
Ashcroft, 390 F.3d 1129, 1135 (9th Cir. 2004), the government submitted evidence
relevant to these issues before the IJ, so the agency should address these issues in
the first instance. See Coronado v. Holder, 759 F.3d 977, 987 (9th Cir. 2014)

(“[U]nder the ordinary remand rule, we are not permitted to decide a claim that the
immigration court has not considered in the first instance.” (cleaned up)).