Lydia Garcia-Milian v. Eric Holder, Jr.

Opinion by Judge IKUTA; Partial Concurrence and Partial Dissent by Judge PAEZ.

OPINION

Lydia Garcia-Milian, a native and citizen of Guatemala, petitions for review of the denial of her applications for asylum, withholding of removal, and relief under the Convention Against Torture (CAT) by the Board of Immigration Appeals (BIA). Because substantial evidence supports the BIA’s determinations that Garcia-Milian was not persecuted on account of an imputed political opinion and that the attack she suffered did not occur with the acquiescence of the Guatemalan government, we deny her petition.

I

Garcia-Milian entered the United States illegally in June 2003. After the government initiated removal proceedings, she conceded removability and, on May 3, 2004, applied for asylum, withholding of removal, and CAT relief. See 8 U.S.C. §§ 1158 ,1231(b)(3); 8 C.F.R. § 208.18 .

Garcia-Milian testified at the removal proceedings and the IJ concluded that her testimony was credible. According to Garcia-Milian, she lived in Salama, Guatemala, a small city of approximately 15,000 people. Between 1985 and 1989, she lived with Noe Garcia, her common law husband. 1 As a truck driver, Garcia was…

concurring in part and dissenting in part:

Although I agree with the majority that the Board of Immigration Appeals (“BIA”) did not err in denying Garcia-Milian’s CAT claim, I respectfully dissent from the majority’s decision to deny her petition with respect to her claims for asylum and withholding of removal. In my view, the evidence in the record compels the conclusion that Garcia-Milian was attacked and raped because of her ex-husband’s political opinions. I would therefore grant the petition and remand to the BIA for further proceedings on Garcia-Milian’s asylum and withholding of removal claims.

I.

The majority effectively requires Garcia-Milian to produce direct evidence of the reasons for her persecution. First, the majority holds that the record “does not compel the conclusion that the masked men imputed a political opinion” to Garcia-Milian because the attackers “did not make any statements attributing political views to Garcia-Milian.” Maj. Op. at 1002. But we have never required asylum applicants to establish a nexus solely through direct evidence. To the contrary, an asylum applicant can establish a nexus between the act of persecution and the relevant political…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LYDIA GARCIA-MILIAN, No. 09-71461 Petitioner, Agency No. v. A096-180-239

ERIC H. HOLDER, JR., Attorney General, OPINION Respondent.

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

Argued and Submitted May 9, 2013—Pasadena, California

Filed September 18, 2013

Before: Diarmuid F. O’Scannlain, Richard A. Paez, and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta; Partial Concurrence and Partial Dissent by Judge Paez GARCIA-MILIAN V. HOLDER

SUMMARY*

Immigration

The panel denied a petition for review of the Board of Immigration Appeals’ decision denying asylum, withholding of removal, and protection under the Convention Against Torture to a native and citizen of Guatemala because substantial evidence supported the determinations that petitioner was not persecuted on account of an imputed political opinion and that the attack she suffered did not occur with the acquiescence of the Guatemalan government.

The panel explained that masked mens’ statements that they were looking for…