Cristina Gaitan-Bernal v. Jefferson Sessions
695 F. App'x 224
9th Cir.2017Background
- Cristina Gaitan-Bernal, a Salvadoran national, applied for asylum, withholding of removal, and CAT protection after alleged mistreatment by her husband and threats tied to political actors.
- An Immigration Judge denied relief; the Board of Immigration Appeals (BIA) dismissed her appeal. Gaitan-Bernal petitioned for review in the Ninth Circuit.
- The agency concluded she failed to show persecution on account of a protected ground, that internal relocation was viable, and that her husband acted with government consent/acquiescence for CAT purposes.
- The Ninth Circuit reviewed for substantial evidence and found the agency did not have the benefit of intervening Ninth Circuit and BIA decisions recognizing certain family-based social groups and spousal abuse-related claims.
- The court determined the record does not support the agency’s nexus, relocation, and futility findings, and that the BIA failed to consider testimony and country condition evidence relevant to the CAT claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Gaitan-Bernal’s harm/fear was on account of a protected ground (cognizable social group/nexus) | Harm stems from being a married woman unable to leave an abusive relationship; nexus to social group and political actors | Agency argued harm was motivated by husband’s personal, non-protected reasons | Court: Agency erred; failed to apply controlling precedent and record does not compel finding that abuse was solely personal—remand required |
| Whether internal relocation in El Salvador was reasonable | Prior relocation attempt failed; relocation not reasonable or safe | Agency found relocation feasible | Court: Substantial evidence does not support relocation finding; remand required |
| Whether failure to seek protection from local authorities was fatal | Seeking help would be futile or dangerous; record shows risk and prior failures | Agency faulted claimant for not seeking police help | Court: Agency erred; should consider futility and risk per Ninth Circuit precedent |
| Whether husband acted with government consent/acquiescence for CAT relief | Testimony and country reports show husband’s ties to police and risk of torture with state acquiescence | Agency found "no evidence" of state consent/acquiescence | Court: Agency failed to consider testimony and country-condition evidence; remand for proper CAT analysis |
Key Cases Cited
- Bringas-Rodriguez v. Sessions, 850 F.3d 1051 (9th Cir. 2017) (standard for reviewing BIA factual findings and futility of state protection)
- Cordoba v. Holder, 726 F.3d 1106 (9th Cir. 2013) (social-group nexus and related asylum analysis)
- Pirir-Boc v. Holder, 750 F.3d 1077 (9th Cir. 2014) (social-group and nexus considerations)
- Hu v. Holder, 652 F.3d 1011 (9th Cir. 2011) (nexus can be compelled by the record)
- Kaiser v. Ashcroft, 390 F.3d 653 (9th Cir. 2004) (relocation findings and their evidentiary limits)
- Ornelas-Chavez v. Gonzales, 458 F.3d 1052 (9th Cir. 2006) (private persecution and futility of state protection)
- Madrigal v. Holder, 716 F.3d 499 (9th Cir. 2013) (agency must consider all relevant evidence in CAT analysis)
- INS v. Ventura, 537 U.S. 12 (2002) (remand to agency for further proceedings)