                                                                           FILED
                            NOT FOR PUBLICATION                            SEP 03 2015

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



                            FOR THE NINTH CIRCUIT


FIDEL MONDRAGON-ALDAY, AKA                       No. 12-70361
Alan Alday, AKA Alan Alday Bermudez,
AKA Cesar Chavarria, AKA Guadalupe               Agency No. A079-620-077
Magallanes, AKA Guadalupe Alday
Magallanes, AKA Sergio Magallanes,
                                                 MEMORANDUM*
              Petitioner,

 v.

LORETTA E. LYNCH, Attorney General,

              Respondent.


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

                       Argued and Submitted March 6, 2015
                              Pasadena, California

Before: PREGERSON, PARKER**, and NGUYEN, Circuit Judges.

      Fidel Mondragon-Alday, who uses the name Lucia, is a transgender woman

and a citizen of Mexico. She petitions for review of a Board of Immigration

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Barrington D. Parker, Jr., Senior Circuit Judge for the
U.S. Court of Appeals for the Second Circuit, sitting by designation.
Appeals (BIA) decision affirming the denial of her applications for withholding of

removal and relief under Article 3 of the Convention Against Torture (CAT). We

have jurisdiction under 8 U.S.C. § 1252(a), and we grant her petition in part.

      1. The immigration judge’s (IJ) adverse credibility finding was supported

by substantial evidence because Mondragon-Alday provided inconsistent

testimony regarding her abuse at the hands of the Mexican police. An IJ may

consider “the consistency between the applicant’s . . . written and oral statements”

when determining credibility. 8 U.S.C. § 1158(b)(1)(B)(iii). The BIA determined

that Mondragon-Alday was provided with a reasonable opportunity to clarify such

discrepancies, and acted within its discretion when finding her explanation to be

unsatisfactory. Because “the record in this case does not compel the conclusion

that [Mondragon-Alday]’s testimony was credible and persuasive,” we deny the

petition for review as to the adverse credibility finding. See Ling Huang v. Holder,

744 F.3d 1149, 1151 (9th Cir. 2014).1




      1
         Mondragon-Alday also claims that the IJ violated her due process rights by
failing to develop the record of her past persecution. Reviewing the record, we
agree with the BIA that the IJ “fully develop[ed] the record” such that Mondragon-
Alday’s due process rights were not violated. Agyeman v. INS, 296 F.3d 871, 877
(9th Cir. 2002) (quoting Jacinto v. INS, 208 F.3d 725, 733 (9th Cir. 2000))
(internal quotation marks omitted).

                                          2
      2. Because Mondragon-Alday’s claim of past persecution rested largely on

her own testimony, substantial evidence supports the BIA’s determination that she

did not prove past persecution. But a “likelihood of future persecution may still be

sufficient to merit withholding of removal.” Wakkary v. Holder, 558 F.3d 1049,

1060 (9th Cir. 2009). The BIA erred in its consideration of Mondragon-Alday’s

evidence of likely future persecution by assuming that legal protections for gay and

lesbian persons would benefit Mondragon-Alday, a transgender woman. See

Avendano-Hernandez v. Lynch, slip op. at        . The BIA’s analysis of

Mondragon-Alday’s CAT claim suffers from the same infirmity. Because there is

“substantial, non-testimonial, evidence in the record of the significant danger” that

transgender women in Mexico face, Al-Harbi v. INS, 242 F.3d 882, 894 (9th Cir.

2001), on remand the BIA should consider the particularized dangers faced by

transgender women.

      Therefore, we GRANT the petition in part, and REMAND for further

proceedings consistent with this disposition.

PETITION GRANTED AND REMANDED IN PART, DENIED IN PART.

      Each party shall bear its own costs on appeal.




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