                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 19 2012

                                                                        MOLLY C. DWYER, CLERK
                   UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



SHYRLEY DAVILA,                                  No. 07-73785

              Petitioner,                        Agency No. A076-854-019

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney
General,

              Respondent.



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

                    Argued and Submitted November 15, 2011
                            San Francisco, California


Before:       KOZINSKI, Chief Judge, BEA, Circuit Judge, and GETTLEMAN,
              District Judge.**

       1. Regardless of whether the BIA or IJ directly considered whether the harm

Davila fears is on account of her family membership, she is unable to show that her



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable Robert W. Gettleman, Senior District Judge for the
U.S. District Court for Northern Illinois, sitting by designation.
                                                                                page 2

family’s “persecutors actually imputed a political opinion” to her family. Ochoa v.

Gonzales, 406 F.3d 1166, 1171 (9th Cir. 2005) (quoting Sangha v. INS, 103 F.3d

1482, 1489 (9th Cir. 1997)). Davila failed to demonstrate what political views the

alleged persecutors attributed to her family, and any inference of political

motivation that might be drawn from the unexplained killings of her family

members doesn’t qualify as “clearly to be drawn from facts in evidence.” Id.

(quoting Sangha, 103 F.3d at 1487).


      2. The BIA and IJ didn’t fail to consider Davila’s experience as a child in

rejecting her claim to past persecution or a well-founded fear of future persecution.

Davila left Guatemala at age nine and testified, “I hardly have any memories of

living over there.” The stories she’s heard from friends and relatives about dangers

in Guatemala fall short of the horrific events experienced firsthand by the asylum

applicants in Hernandez-Ortiz v. Gonzales, 496 F.3d 1042 (9th Cir. 2007).


      3. Davila’s claim to derivative standing to pursue her mother’s asylum

claim doesn’t suffer from a failure to exhaust. Davila’s June 7, 2007, letter to the

BIA raised the key issue as it then stood: whether Davila, as a derivative asylum

applicant, could pursue her mother’s asylum claim. When the government

responded with a motion for summary dismissal, Davila wasn’t obliged to respond,
                                                                              page 3

as she’d already raised the derivative standing issue. And once the BIA granted

the government’s dismissal motion, Davila had no opportunity to present her

derivative standing argument as a continuing derivative asylum claim despite the

fact that her mother had received a different form of relief.

      The BIA thus never addressed Davila’s derivative standing claim. We

remand for it to do so.


      PETITION DENIED IN PART; PETITION GRANTED IN PART AND

REMANDED.
