                                                                              FILED
                            NOT FOR PUBLICATION
                                                                               JUN 29 2020
                    UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ANA GLORIA RODRIGUEZ DE                          No.   17-72022
AYALA,
                                                 Agency No. A087-898-572
              Petitioner,

 v.                                              MEMORANDUM*

WILLIAM P. BARR, Attorney General,

              Respondent.


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

                            Submitted February 4, 2020**
                               Pasadena, California

Before: IKUTA and CHRISTEN, Circuit Judges, and MARBLEY,*** District
Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable Algenon L. Marbley, United States Chief District
Judge for the Southern District of Ohio, sitting by designation.
      Petitioner Ana Rodriguez de Ayala seeks review of the Board of

Immigration Appeals decision denying her applications for asylum, withholding of

removal, and relief under the Convention Against Torture (CAT). We have

jurisdiction pursuant to 8 U.S.C. § 1252(a), and we grant the petition. Because the

parties are familiar with the facts, we recite only those facts necessary to decide the

issues on appeal.

      1.     The Immigration Judge (IJ) found that although Rodriguez established

past persecution on account of her membership in a particular social group, she

failed to demonstrate that the government of El Salvador was unable or unwilling

to protect her. That is the sole issue on appeal related to her claims for asylum and

withholding, and we conclude that the record evidence compels the opposite

conclusion. See Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir.

2017) (en banc). Rodriguez credibly testified that when her husband threatened to

kill her, he warned her that she “shouldn’t even dare to call the police because he

was the police,” and the police would not pay attention to her. She further credibly

testified that the police in her community “help each other” and “wouldn’t listen”

to her reports about her husband’s domestic violence. Petitioner’s husband thus

threatened that the police would not protect her, specifically because he was a

police officer.


                                           2
      The country conditions report corroborates Rodriguez’s credible testimony,

but the IJ and BIA ignored the most relevant portions of that evidence. The report

noted “high levels of impunity for crime and abuse of official authority,” a “high

level of domestic violence” and “violence and discrimination against women,” and

“widespread” incidents of rape and sex crimes against women. Although El

Salvador passed laws prohibiting domestic violence, the report made clear that “in

practice the government did not effectively enforce th[o]se provisions,” that

spousal rape was “not specifically addressed in the law,” that “[l]aws against rape

were not effectively enforced,” that “laws against domestic violence were not well

enforced, and cases were not effectively prosecuted,” and that overall, “[t]he

government’s efforts to combat domestic violence were minimally effective.” The

report further explained that domestic violence “was a widespread and serious

problem” that “was considered socially acceptable” and was largely underreported.

      Significantly, Rodriguez testified that even when her adult daughter reported

Rodriguez’s husband’s abuse of their younger children and obtained a protective

order, the court subsequently “annulled” the order and returned Rodriguez’s

children to the custody of her husband, who continued to physically and

emotionally abuse them. Here, the evidence compels the conclusion that the

government was unable or unwilling to stop Rodriguez’s husband from continuing


                                          3
to commit acts of domestic violence. Having established that the government of El

Salvador was unable or unwilling to protect her, Rodriguez is entitled to a

presumption of a well-founded fear of future persecution. See Mamouzian v.

Ashcroft, 390 F.3d 1129, 1135 (9th Cir. 2004). We remand for further proceedings

consistent with this disposition on Rodriguez’s asylum claim.

         Eligibility for withholding of removal may similarly be established by

demonstrating “a presumption of fear of future persecution based on past

persecution.” See Tamang v. Holder, 598 F.3d 1083, 1091 (9th Cir. 2010) (citing 8

C.F.R. § 1208.16(b)(1)(i)). A petitioner is entitled to withholding of removal if she

demonstrates a “clear probability” that she would be subject to persecution upon

returning to her home country. Id. (quoting INS v. Stevic, 467 U.S. 407, 429–30

(1984)). The clear probability standard is more stringent than the well-founded

fear standard, id., but the IJ concluded that Rodriguez failed to demonstrate her

eligibility for withholding only because she failed to establish her eligibility for

asylum. We therefore remand for the BIA to reconsider Rodriguez’s withholding

claim.

         2.    On Rodriguez’s CAT claim, the record evidence compels the

conclusion that the IJ erred on prong one of the analysis by concluding that the

domestic abuse Rodriguez suffered did not rise to the level of torture. Torture is


                                            4
“any act by which severe pain or suffering, whether physical or mental, is

intentionally inflicted on a person” for specific reasons “such as punishing him or

her for an act he or she or a third person has committed or is suspected of having

committed.” 8 C.F.R. § 1208.18(a)(1). Rodriguez’s husband strangled her,

repeatedly raped her, and hit, kicked, and pushed her. He also verbally abused

Rodriguez, and emotionally and physically abused their children. The abuse

Rodriguez suffered rises to the level of torture, and because at least some of it was

meted out as punishment, it satisfies the requirements of § 1208.18.

      PETITION GRANTED; REMANDED.




                                          5
                                                                                FILED
Rodriguez de Ayala v. Barr, 17-72022
                                                                                 JUN 29 2020
IKUTA, Circuit Judge, dissenting:                                           MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS


      This case is controlled by the standard of review. Because Rodriguez cannot

“show that the evidence [she] presented was so compelling that no reasonable

factfinder could fail to find” in her favor, INS v. Elias-Zacarias, 502 U.S. 478,

483–84 (1992) (emphasis added), we must uphold the BIA’s determination. I

therefore dissent.

      To qualify for asylum or withholding of removal, an alien must show that

her persecution was or will be inflicted by the government or forces that the

government is “unable or unwilling to control.” Bringas-Rodriguez v. Sessions,

850 F.3d 1051, 1062 (9th Cir. 2017) (quoting Baghdasaryan v. Holder, 592 F.3d

1018, 1023 (9th Cir. 2010)). We can reverse the agency’s finding on this question

only if the record evidence “not only supports [the] conclusion” that the

government is unable or unwilling to control the persecutor, “but compels it.”

Elias-Zacarias, 502 U.S. at 481 n.1 (emphasis in original). To qualify for relief

under the Convention Against Torture (CAT), an alien must establish that she

“more likely than not” would be “tortured” in the country of removal. 8 C.F.R.

§ 208.16(c)(2). Again, we can reverse the agency’s finding only if we are

compelled to find to the contrary. Avendano-Hernandez v. Lynch, 800 F.3d 1072,

1078 (9th Cir. 2015).
      Here, the record does not compel us to overturn the agency. The record

includes the following evidence. Rodriguez’s husband, Jose, assaulted her

daughter, Ana, and one of their sons. Ana reported the incident to the police. In

March 2010, a court ruled that Jose’s violent acts “constitute acts of domestic

violence.” The court issued a six-month protective order prohibiting Jose from

threatening, harassing, or sharing a residence with Ana. The government gave Ana

a copy of the order so that she could seek help from nearby police if Jose violated

its terms. Pursuant to the order, Jose moved to his mother’s house and “did not

come back.” It is not clear whether (or why) the protective order was terminated.

Rodriguez testified that she did not know whether the order remained in effect, but

also testified that the order was “annulled.” If the court did annul the order, the

record does not explain the circumstances or the court’s reasoning.1

      Based on the evidence that the government issued a protective order against

Jose, and Jose complied with it, the agency’s conclusion “that the government was

willing to take actions against perpetrators of domestic violence” was well

supported by the evidence. And this same evidence supports the agency’s rejection


      1
         Rodriguez testified that Jose obtained custody of their three sons in January
2011. Given that the restrictions in the March 2010 protective order were set to
last for six months (i.e., until September 2010), this allegation sheds no light on
whether or why the order was terminated.

                                           2
of the claim that it was “more likely than not” that the government would

acquiesce in Jose’s acts of torture against Rodriguez. 8 C.F.R. § 208.16(c)(2). We

must uphold these conclusions, because we are not compelled to find otherwise.

The bare allegation that the protective order was annulled (even assuming that

occurred), without any explanation as to the reasons or circumstances, does not

compel a reasonable jurist to conclude that the government is unable or unwilling

to stop Jose’s violent conduct. And it is not enough to point to general statements

in the country conditions report, because they do not compel us to overturn the

agency’s contrary findings.

      Because I would deny Rodriguez’s petition for review under this deferential

standard, I respectfully dissent.




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