                                                                           FILED
                            NOT FOR PUBLICATION
                                                                            JAN 13 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JAIME RAMOS, AKA Jasmine Ramos,                  No. 13-70528

              Petitioner,                        Agency No. A205-314-036

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

              Respondent.


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

                            Submitted January 7, 2016**
                               Pasadena, California

Before: WATFORD and FRIEDLAND, Circuit Judges, and MOTZ,*** Senior
District Judge.

      Jaime Ramos, a native and citizen of El Salvador, petitions for review of an

order of the Board of Immigration Appeals (BIA) denying her application for

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 J. Frederick Motz, Senior District Judge for the U.S.
District Court for the District of Maryland, sitting by designation.
                                                                           Page 2 of 3
asylum, withholding of removal, and relief under the Convention Against Torture

(CAT). Ramos challenges only the denial of her withholding and CAT claims

before this court.

      1. The BIA erred in evaluating Ramos’s claim of past persecution. In order

to demonstrate past persecution, an applicant for asylum or withholding must show

that she was persecuted on account of a protected ground “either by the

government or by individuals or groups the government is unable or unwilling to

control.” Castro-Martinez v. Holder, 674 F.3d 1073, 1080 (9th Cir. 2011)

(emphasis added); Afriyie v. Holder, 613 F.3d 924, 936 (9th Cir. 2010). Ramos’s

beating by police officers constituted state action for purposes of establishing past

persecution, and the BIA erred by requiring her to make some further showing that

the Salvadoran government acquiesced in that attack. See Boer-Sedano v.

Gonzales, 418 F.3d 1082, 1088 (9th Cir. 2005); Baballah v. Ashcroft, 367 F.3d

1067, 1078 (9th Cir. 2004). Because the BIA’s denial of Ramos’s withholding

claim relied on an incorrect legal standard, we grant the petition and remand for the

BIA to reassess her eligibility for withholding under the correct standard.

      2. With respect to Ramos’s CAT claim, the BIA likewise erred in evaluating

whether Ramos had proved that the Salvadoran government was unable or

unwilling to protect her. Because Ramos was attacked by police, her beating was
                                                                           Page 3 of 3
necessarily “inflicted by . . . a public official.” 8 C.F.R. § 1208.18(a)(1). She did

not need to show that the government otherwise acquiesced in the assault.

Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1079–80 (9th Cir. 2015). We

remand for the BIA to consider the other elements of Ramos’s CAT claim in the

first instance.

       3. The BIA and IJ also erred by failing to consider Ramos’s argument that

she will likely be persecuted or tortured if removed to El Salvador because she is a

transgender woman. Ramos clearly asserted her gender identity as a basis for relief

distinct from her sexual orientation. The immigration judge improperly conflated

Ramos’s gender identity and sexual orientation. See id. at 1080–81. Although the

BIA acknowledged that Ramos is transgender, its opinion offers no indication that

it actually considered whether she is entitled to withholding or CAT relief as a

result. We remand to the BIA to conduct further proceedings necessary to consider

this claim.

       PETITION GRANTED and REMANDED.
