Unreported / Non-Citable
Background
Brenda Julissa Menjibar Coto and her daughter, who is also a derivative beneficiary of her mother's application, petitioned the Ninth Circuit to review a Board of Immigration Appeals decision. The Board had affirmed an immigration judge's denial of asylum, withholding of removal, and protection under the Convention Against Torture. Each petitioner's application rested on the facts in the mother's application, and the court referred to both as Menjibar Coto.
The claim centered on a single vague threat she received at a soccer field in Honduras, which led to no harm, and on harm to family members, including an incident involving her brother. She also asserted a fear of future persecution based on a pattern or practice of persecution of 'Women in Honduras.' The agency concluded that this proposed social group was categorically too broad to be recognized under the statute. The court had jurisdiction under 8 U.S.C. § 1252.
The Court’s Holding
The panel denied the petition in part. Substantial evidence supported the finding that Menjibar Coto had not suffered persecution. A single, vague threat that led to no harm rarely amounts to persecution, and the record did not compel the conclusion that any gang member has shown a continuing interest in her since she left Honduras. The evidence of harm to her family did not make her fear objectively reasonable, and substantial evidence supported the agency's view that the incident involving her brother was a personal dispute unrelated to her. She was therefore not entitled to a presumption of a well-founded fear of future persecution.
The panel granted the petition in part. The agency's conclusion that 'Women in Honduras' was categorically too broad to be recognized was foreclosed by circuit precedent, Perdomo v. Holder, 611 F.3d 662 (9th Cir. 2010). The court vacated the Board's pattern-or-practice holding and remanded for further agency consideration of that issue. It did not hold that the group is cognizable or that she will ultimately prevail.
The court did not reach withholding of removal. She had not meaningfully challenged the immigration judge's denial in her Board appeal, so the Board deemed the claim waived and it was unexhausted. Substantial evidence supported the denial of CAT protection, because the record did not compel the conclusion that local authorities were likely to torture her or would consent or acquiesce to gang-related crime. The court also granted the motion for a stay of removal, which remains in place until the mandate issues, and each party bears its own costs.
Key Takeaways
- A single vague threat that results in no harm will rarely establish past persecution, even when the applicant also points to gang activity and family incidents.
- Harm to relatives does not make an applicant's own fear objectively reasonable where the agency reasonably finds the incident was a personal dispute unrelated to her.
- Under Perdomo, the agency may not reject a 'women in a country' social group as categorically too broad, so the proper course is a remand for further consideration.
- A claim not meaningfully challenged in the appeal to the Board is unexhausted, and the court will not address it on petition for review.
- CAT relief requires a particularized risk of torture by or with the acquiescence of a government official, and generalized gang violence does not compel that finding.
Why It Matters
This is an unpublished memorandum, not precedent except as provided by Ninth Circuit Rule 36-3. Its practical effect is limited to this case: the agency must take a fresh look at the pattern-or-practice theory and the 'Women in Honduras' group, while the denials based on past persecution and CAT protection stand. What remains open is whether the group is cognizable and whether she can show a well-founded fear of future persecution on that basis.
Judge Bress, joined by Judge Bybee, concurred reluctantly. He read the court's cases as holding only that the Board errs when it dismisses such groups without considering the record, and noted that the resulting remands prolong proceedings without evident ultimate relief. He argued that Perdomo was wrongly decided under the Board's current particularity and social-distinction framework, citing Matter of K-E-S-G- and decisions from other circuits. He allowed for an extraordinary evidentiary showing, such as widespread female genital mutilation. He concluded that the Board did not err here and urged the court to revisit Perdomo en banc. He also concluded that the agency's definition has not changed enough to treat Perdomo as non-binding, so the panel followed it.