     16-955
     Martinez-Segova v. Sessions
                                                                                        BIA
                                                                                   Wright, IJ
                                                                            A206 808 173/174

                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1        At a stated term of the United States Court of Appeals for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   18th day of August, two thousand seventeen.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            GERARD E. LYNCH,
 9            DENNY CHIN,
10                 Circuit Judges.
11   _____________________________________
12   MARIA MELIDA MARTINEZ-SEGOVA,
13   EMELY MARIAN SEGOVA-MARTINEZ,
14
15                                 Petitioners,
16
17                     v.                                             16-955
18                                                                    NAC
19
20   JEFFERSON B. SESSIONS, III, UNITED
21   STATES ATTORNEY GENERAL,
22
23                 Respondent.
24   _____________________________________
25
26   FOR PETITIONERS:                             Caitlin Miner-Le Grand, Jennifer H.
27                                                Kim, City Bar Justice Center, New
28                                                York, NY.
 1
 2   FOR RESPONDENT:            Benjamin C. Mizer, Principal Deputy
 3                              Assistant Attorney General; Julie M.
 4                              Iversen, Senior Litigation Counsel;
 5                              Robert   Michael   Stalzer,    Trial
 6                              Attorney, Office of Immigration
 7                              Litigation,      United       States
 8                              Department of Justice, Washington,
 9                              DC.
10

11       UPON DUE CONSIDERATION of this petition for review of a

12   Board of Immigration Appeals (“BIA”) decision, it is hereby

13   ORDERED, ADJUDGED, AND DECREED that the petition for review is

14   GRANTED, the BIA’s decision is VACATED, and the case is REMANDED

15   for further proceedings consistent with this order.

16       Petitioners Maria Melida Martinez-Segova and Emely Marian

17   Segova-Martinez, natives and citizens of El Salvador, seek

18   review of a March 18, 2016, decision of the BIA, affirming an

19   October 5, 2015, decision of an Immigration Judge (“IJ”) denying

20   Martinez-Segova’s   application    for   asylum,   withholding   of

21   removal, and relief under the Convention Against Torture

22   (“CAT”).   In re Maria Melida Martinez-Segova, Emely Marian

23   Segova-Martinez, Nos. A206 808 173/174 (B.I.A. Mar. 18, 2016),

24   aff’g Nos. A206 808 173/174 (Immig. Ct. N.Y. City Oct. 5, 2015).

25   We assume the parties’ familiarity with the underlying facts

                                    2
1    and procedural history in this case, to which we refer only as

2    necessary to explain our decision.

3          We, following the BIA, assume the credibility of the asylum

4    applicant and that the applicant suffered past harm rising to

5    the level of persecution on account of her membership in a

6    particular social group, and we review the IJ’s decision as

7    modified by the BIA.       Xue Hong Yang v. U.S. Dep’t of Justice,

8    426   F.3d    520,   522   (2d   Cir.   2005);   see   also   8    U.S.C.

9    § 1101(a)(42).       Accordingly, we address only the ground the BIA

10   relied on: that Martinez-Segova failed to establish that the

11   Salvadoran government was unable or unwilling to protect her.

12         We conclude that the agency failed to sufficiently consider

13   the   country    conditions      evidence   in    analyzing       whether

14   Martinez-Segova demonstrated that the Salvadoran government

15   was unable or unwilling to protect her from her husband.             The

16   BIA relied heavily on the fact that Martinez-Segova failed to

17   report her husband’s violation of the protective order to the

18   police.      The agency’s decision in this regard was flawed.

19   Where, as here, “the IJ and BIA ignored ample record evidence

20   tending to show that” authorities are unwilling and unable to

21   protect against persecution, we need not decide “whether [a
                                         3
1    petitioner’s] unwillingness to confront the police is fatal to

2    [her] asylum claim.”   Pan v. Holder, 777 F.3d 540, 544-45 (2d

3    Cir. 2015); see also Aliyev v. Mukasey, 549 F.3d 111, 118 (2d

4    Cir. 2008) (declining to determine “precisely what a person must

5    show in order for the government to be deemed responsible for

6    the conduct of private actors” where petitioner “introduced

7    enough evidence to forge the link between private conduct and

8    public responsibility” (emphasis added)).

9        Although the agency does not have to parse each individual

10   piece of evidence, Zhi Yun Gao v. Mukasey, 508 F.3d 86, 87 (2d

11   Cir. 2007), there is no indication that the agency considered

12   the ample record evidence of the Salvadoran government’s

13   inability to combat domestic violence—a phenomenon that the

14   U.S. State Department deems one of El Salvador’s “principal

15   human rights problems” for which its efforts to ameliorate the

16   problem are “minimally effective.”   A declaration from an human

17   rights attorney and expert on gender issues in El Salvador

18   reveals that orders of protection, while difficult to procure,

19   “do little to protect victims from further violence because

20   judges often draft them inadequately and law enforcement

21   officials neglect or refuse to enforce them” and “are little
                                    4
1    more than pieces of paper affording no more protection than the

2    victims had prior to the legal process.”            Where orders of

3    protection are issued, the onus is on the government to ensure

4    compliance; for example, judges are required to appoint an

5    independent   team   to   monitor    compliance    with   orders   of

6    protection and that inadequate follow up “frequently renders

7    victims of domestic violence virtually helpless to enforce

8    their rights.”   There is no indication that that judge did this

9    in Martinez-Segova’s case.      Moreover, the order of protection

10   prohibited    Martinez-Segova’s      husband      from    “harassing,

11   stalking, [and] intimidating” her, but her husband nonetheless

12   violated the order with impunity by showing up to her place of

13   work, kissing and grabbing her and begging her to return.

14       Because   the    agency’s   conclusion—that     Martinez-Segova

15   failed to establish that the Salvadoran government was unable

16   or unwilling to protect her from her husband because she had

17   been able to obtain a protective order—is in tension with the

18   record evidence demonstrating that such orders are largely

19   ineffective, we grant the petition and remand for consideration

20   of this evidence.    See Poradisova v. Gonzales, 420 F.3d 70, 77

21   (2d Cir. 2005) (“Despite our generally deferential review of
                                      5
1    IJ and BIA opinions, we require a certain minimum level of

2    analysis from the IJ and BIA opinions denying asylum, and indeed

3    must require such if judicial review is to be meaningful.”).

4         Because remand is warranted for the agency to consider

5    whether   Martinez-Segova   established      past    persecution,    we

6    decline to reach its humanitarian asylum ruling at this time.

7    See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general

8    rule courts and agencies are not required to make findings on

9    issues the decision of which is unnecessary to the results they

10   reach.”).    Moreover,    the   BIA   did   not     address   the   IJ’s

11   conclusion that the Government rebutted Martinez-Segova’s

12   well-founded fear of persecution,           and that determination

13   generally precedes an analysis on whether humanitarian asylum

14   is   warranted.     See     8   C.F.R.      § 1208.13(b)(1)(B)(iii)

15   (humanitarian asylum is generally considered “in the absence

16   of a well-founded fear of persecution”).

17        For the foregoing reasons, we GRANT the petition for

18   review, VACATE the BIA’s order, and REMAND the case to the BIA

19   for further proceedings consistent with this decision.

20                                   FOR THE COURT:
21                                   Catherine O’Hagan Wolfe, Clerk

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