Carla Davila v. William Barr, 968 F.3d 1136

Background

Davila, a Nicaraguan woman, testified credibly that her domestic partner, Ronald Cevilla, subjected her to repeated physical and sexual abuse from 2007–2014, including beatings that caused the loss of a pregnancy and a hysterectomy.
On one occasion police responded after Davila's call but accepted a bribe from Cevilla and left without speaking to her; after that incident Davila reasonably ceased contacting police because further calls would be futile and would provoke worse abuse.
Cevilla repeatedly tracked, raped, and threatened Davila and her son; Davila ultimately fled to the United States in 2015 after her mother arranged and paid for smuggling.
Davila applied for asylum, withholding of removal, and CAT relief; the IJ found her credible but denied relief, concluding Nicaragua could protect her and that she had not shown state acquiescence to torture.
The BIA affirmed solely on the ground that Nicaragua had made positive strides and could protect women, noting criminalization of rape and available services, and did not reach questions about social-group membership or whether the abuse constituted torture.
The Ninth Circuit held the BIA’s conclusions were not supported by substantial evidence—criticizing selective use of the State Department Country Report and the BIA’s requirement that Davila make further reports—and remanded for the BIA to address unanswered issues.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Nicaragua was unwilling or unable to protect Davila	Davila argued police accepted a bribe, official response was ineffective and corrupt, reporting would be futile, and country conditions show impunity	Government argued Nicaragua criminalizes rape, has police services and restraining orders, and has made positive strides	Held: BIA lacked substantial evidence; Davila showed government unwillingness/inability and BIA’s selective use of the Country Report was error
Whether Davila was required to report subsequent abuse after the police bribery incident	Davila argued one credible report plus futility excuse sufficed; further reporting would be pointless and dangerous	Government relied on Davila's failure to report again or to seek a restraining order	Held: Requiring additional reporting was error; reporting is not mandatory and credible reasons for not reporting must be considered
Whether the BIA reasonably found no state consent/acquiescence for CAT relief	Davila argued police acquiesced (bribe) and state institutions fail to enforce protections, making torture likely	Government pointed to legal prohibitions and available police/social/legal services as evidence of protection	Held: Substantial evidence did not support the BIA’s denial on acquiescence grounds; remanded to consider whether abuse rose to level of torture and likelihood of future torture
Whether the BIA properly declined to decide social-group membership, nexus, and whether abuse rose to persecution/torture	Davila argued those issues require agency consideration in light of findings on state protection and credibility	Government had not prevailed on protection so BIA declined to reach other elements	Held: Court remanded so BIA can address for the first time social-group, nexus, whether abuse constituted persecution or torture, and well-founded fear/likelihood findings

Key Cases Cited

Ming Dai v. Sessions, 884 F.3d 858 (9th Cir. 2018) (agency must treat testimony as credible when no adverse credibility finding is made)
Bringas-Rodriguez v. Sessions, 850 F.3d 1051 (9th Cir. 2017) (reporting to authorities not required; agency must consider reasons for not reporting)
Cordon-Garcia v. INS, 204 F.3d 985 (9th Cir. 2000) (review limited to BIA decision except when IJ adopted)
Garcia-Milian v. Holder, 755 F.3d 1026 (9th Cir. 2014) (CAT requires torture by or with consent/acquiescence of public official)
Guo v. Sessions, 897 F.3d 1208 (9th Cir. 2018) (torture is more severe than persecution)
Andriasian v. INS, 180 F.3d 1033 (9th Cir. 1999) (single report can support finding of government unwillingness when credible)
Ornelas-Chavez v. Gonzales, 458 F.3d 1052 (9th Cir. 2006) (no reporting required where doing so would be futile or dangerous)
Korablina v. INS, 158 F.3d 1038 (9th Cir. 1998) (government unwillingness shown by credible evidence of official indifference)
Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019) (Ninth Circuit jurisdiction rules; cited re: NTA defect argument)