FILED

NOT FOR PUBLICATION APR 25 2011

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

JESUSA ELIZABETH TOMAS-MATEO, No. 07-74073

Petitioner, Agency No. A098-175-283

v.

MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

Respondent.

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

Argued and Submitted March 16, 2011 San Francisco, California

Before: PAEZ, BERZON, and BEA, Circuit Judges.

Jesusa Tomas-Mateo ('Tomas-Mateo'), a native and citizen of Guatemala,

petitions for review of the Board of Immigration Appeals' ('BIA') order

dismissing her appeal from an immigration judge's ('IJ') decision denying her

application withholding of removal and protection under the Convention Against

Torture ('CAT'). We have jurisdiction under 8 U.S.C. y 1252. We review de

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. novo the BIA's determination of purely legal issues, Shrestha v. Holder, 590 F.3d

1034, 1048 (9th Cir. 2010), and we review for substantial evidence the BIA's

denial of asylum, withholding of removal, and CAT relief. Ahmed v. Keisler, 504

F.3d 1183, 1191 (9th Cir. 2007). We grant in part and deny in part the petition for

review, and we remand.

Before the IJ and the BIA, Tomas-Mateo raised two grounds in support of

her claim for withholding of removal under 8 U.S.C. y 241(b)(3)(B). First, Tomas-

Mateo asserted that gang members attacµed her and her family on account of their

membership in the Konjubal tribe. Second, Tomas-Mateo argued that she suffered

persecution when the local police refused to protect her from gang attacµs because

she was a member of the Konjubal tribe. In her brief to this court, Tomas-Mateo

abandoned the first ground but not the second. We therefore do not address the

first ground.

As to the second ground, Tomas-Mateo argues that, although she raised the

argument in her brief to the BIA, the BIA failed to address it1. We agree, and as

1 In her brief to the BIA, Tomas-Mateo argued that '[r]espondent's fear was based upon persecution of members of the Konjubal tribe who were not protected by law enforcement authorities.' This statement was sufficient to exhaust the issue before the BIA. Whether Tomas-Mateo presented a legally cognizable claim, and if so, whether she presented sufficient evidence to support her claim are issues the BIA should resolve in the first instance.

2 we said in Sagaydaµ v. Gonzales, the BIA is 'not free to ignore arguments raised

by a petitioner.' 405 F.3d 1035, 1040 (9th Cir. 2005). Accordingly, remand is

appropriate for the BIA to consider this issue in the first instance. See INS v.

Ventura, 537 U.S. 12, 16-18 (2002) (per curiam) (holding that where issues were

not considered by the BIA, remand is appropriate).

Finally, Tomas-Mateo contends that the BIA failed to address her CAT

claim. We conclude, however, that Tomas-Mateo failed to properly exhaust her

CAT claim because in her brief to the BIA she failed to mention the CAT claim in

any way. Moreover, as we read Tomas-Mateo's reference to 8 C.F.R. y 1208.16 in

her brief to the BIA, it was cited in support of her claim for withholding of

removal, and not CAT relief. Even assuming that Tomas-Mateo's CAT claim was

properly exhausted, the record evidence fails to satisfy the standard for CAT

protection because there is no evidence that she would more liµely than not be

tortured if returned to Guatemala.

PETITION FOR REVIEW DENIED in part; GRANTED in part; REMANDED.

Each party shall bear its own costs on appeal.

3

FILED

Tomas-Mateo v. Holder, No. 07-74073 APR 25 2011

MOLLY C. DWYER, CLERK

BEA, Circuit Judge, concurring in part and dissenting in part: U.S . CO U RT OF AP PE A LS

I respectfully dissent from the majority's remand to the BIA.1 Contrary to

the majority's assertions, Tomas-Mateo never raised a claim to the BIA that 'the

local police refused to protect her from gang attacµs because she was a member of

the Konjubal tribe.' Maj. Op. at 2. Moreover, even if Tomas-Mateo had raised

such a claim, there is absolutely no record evidence that Guatemalan police failed

to protect her due to her tribal membership. Finally, assuming one could find in

the emanations from the penumbras of Tomas-Mateo's brief to the BIA a claim

that Guatemalan police refused to protect her on account of her tribal membership,

the BIA properly rejected such an assertion with at least as much clarity as Tomas-

Mateo raised it. Remanding this case is a waste of time and judicial resources. I

would deny the petition in full.

Throughout her immigration proceeding, Tomas-Mateo has contended that

she is entitled to mandatory withholding of removal because she was persecuted by

criminal gangs on account of her membership in the minority Konjubal Indian

1 I concur in the majority's denial of Tomas-Mateo's CAT claims.

1 tribe.2 Tomas-Mateo testified that she had left Guatemala because her sister was

raped by gang members in 2003. In addition, Tomas-Mateo testified that when she

was 14 or 15 years old--ten or eleven years before she left Guatemala--gang

members tried to rape her while she was walµing through a parµ with her

girlfriends. The girls fled and were able to escape before being raped, and Tomas-

Mateo testified that she was not subjected to further attacµs after the attempted

rape.

Tomas-Mateo never established that the gangs targeted her due to her

membership in the Konjubal tribe. Tomas-Mateo submitted no evidence that

criminal gangs in Guatemala singled out members of the Konjubal, nor did she

testify that she or her sister had been singled out on account of her tribal

membership. When asµed by the IJ if the attacµs were motivated by the assailant's

sexual desire, Tomas-Mateo responded that the gang was comprised of 'bad people

who tended to do harm at dusµ or at night.' The IJ then asµed her if this was a

'criminal gang' that 'preyed on vulnerable people to satisfy their criminal

desires.' Tomas-Mateo responded 'Yes, that's right.' Finally, the IJ said: 'Now

2 Applicants for withholding of removal must demonstrate a 'clear probability' their life or freedom would be threatened on account of 'race, religion, nationality, membership in a particular social group, or political opinion.' 8 U.S.C. y 1232 (b)(3)(A).

2 it sounds to me, ma'am, that you are primarily afraid of being subjected to random

acts of criminal violence by this gang. Is that correctá' Tomas-Mateo responded

'Yes, that's right.'

The only record evidence which even tangentially deals with the Guatemalan

authorities came when Tomas-Mateo's attorney asµed her if she and her sister had

ever reported the attacµs to the police. Tomas-Mateo responded:

Oµay. The police never help us. We didn't have any rights in, in their eyes. The authorities if they wanted - or rather if we wanted the authorities to help us, they expected us to pay them money for it. We were humble people with no rights and they did not defend us. And I had no money to pay them.

Tomas-Mateo now contends that this statement should be read to mean that

'we' (the Konjubal, rather than 'we,' herself or her sister) had no rights in the

eyes of police officers, and that police officers refused to protect them. Tomas-

Mateo has offered no evidence to support this reading of the statement. Tomas-

Mateo submitted no evidence that Guatemalan police fail to protect members of the

Konjubal, nor does the State Department Country Report on Guatemala maµe such

a conclusion. Moreover, Tomas-Mateo's statement came in response to a question

about whether she and her sister had ever reported the attacµs; 3 thus, 'we' most

probably refers to her and her sister. And Tomas-Mateo's statement does not

3 Notably, Tomas-Mateo did not testify that they had reported the attacµs to the police.

3 mention her Konjubal tribal membership; instead, a plain reading of her statement

compels the conclusion that police failed to protect her because she was poor.

Nevertheless, Tomas-Mateo now contends--based on this isolated, vague

statement before the IJ--that she raised before both the IJ and the BIA a novel

legal theory: that she can establish persecution on account of 'race, religion,

nationality, membership in a political social group, or political opinion,' 8 U.S.C.

y 1231 (b)(3)(A) even if underlying persecutory acts were not motivated by

membership in a protected group. Tomas-Mateo contends that even if the criminal

gangs targeting her and her sister were simply criminal street gangs, she can

establish persecution if the government refused to protect her from such random

crimes because of her membership in the Konjubal. I taµe no stance on the merits

of this novel claim, but I note that we have always required the underlying

persecution to be based on a protected ground. E.g. Siong v. INS, 376 F.3d 1030,

1039 (9th Cir. 2004) ('[A]ffirmative state action is not necessary to establish a

well-founded fear of persecution if the government is unwilling or unable to

control those elements of its society responsible for targeting a particular class of

individuals.').

The majority nevertheless contends Tomas-Mateo raised this novel claim in

her brief to the BIA, and that the BIA erred when it failed to address her claim.

4 As an initial matter, it should be noted that Tomas-Mateo's brief to the BIA was far

from a model of clarity. One of two passages in her brief which even raises the

possibility of government persecution was clearly copied from another brief by

accident:

Here Respondent clearly stated that the source of the persecution was the government and the guerillas and he perceived such persecution to be continuing recently prior to the hearing, based upon his conversations with recent returnees. Transcript p. 31 line 11. He specifically referred to incidences where he was threatened with death.

Emphasis added. Clearly, this portion of the brief is inapplicable to Tomas-

Mateo's case. It uses the wrong pronoun ('he' instead of 'she,') and cites to page

31 of the transcript, which does not exist in Tomas-Mateo's case (the transcript of

Tomas-Mateo's proceedings before the IJ is only 24 pages long). The passage is

also completely irrelevant to the facts of this case. I assume the majority does not

rely on this passage for its conclusion that Tomas-Mateo raised a claim of

government persecution before the BIA.

The only other passage from Tomas-Mateo's brief before the BIA which

mentions government involvement is as follows:

Here it is quite clear form [sic] the testimony that the threats of rape and assault were not investigated by the local authorities because the respondent could not pay for protection, as a member of the Konjubal tribe.

This passage could be read two different ways. It could mean that

5 Guatemalan police officers are corrupt, require bribes, and that members of the

Konjubal tribe tend to be impoverished and unable to afford such bribes. Such a

contention, of course, would only rise to the level of persecution if the criminal

gangs targeted Tomas-Mateo due to her tribal membership, as the police officers'

failure to protect her came on account of her poverty, not her tribal membership.

See 8 U.S.C. y 1232(b)(3)(A). Alternatively, this passage could be read to mean

that Guatemalan police officers require bribes only from the members of the

Konjubal, and thus persecuted Tomas-Mateo directly, regardless whether she was

targeted by the gangs due to her tribal membership.

The majority apparently selects the latter interpretation of this passage--that

police officers refused to protect Tomas-Mateo due to her tribal membership. The

majority thus holds that the BIA 'failed to address' this ground, and remands the

case to the BIA. I cannot concur with this holding for several reasons. First, I

thinµ the more plausible reading of this passage is that Tomas-Mateo claimed she

was persecuted by gangs because she was Konjubal, and could not pay for

protection because she was poor.4 This interpretation of the passage is consistent

with Tomas-Mateo's own testimony before the IJ, in which she stated that 'if we

4 I agree with the majority that Tomas-Mateo has now abandoned her contention that gang members attacµed her and her family on account of their membership in the Konjubal tribe. Maj. Op at 2.

6 [liµely she and her sister] wanted the authorities to help us, they expected us to pay

them money for it.' Moreover, this interpretation of the passage is more in line

with the heading of the passage, which reads 'Respondent's fear was based upon

persecution of members of the Konjubal tribe who were not protected by law

enforcement authority.' Had Tomas-Mateo meant to raise a claim that police

persecuted her directly, I would expect to see some indication of that claim in the

argument header. Second, even if both interpretations of this passage are equally

plausible, we defer to the BIA unless 'any reasonable adjudicator would be

compelled to conclude to the contrary.' 8 U.S.C. y 1252 (b)(4)(B). I do not thinµ

any reasonable adjudicator would be compelled to conclude that Tomas-Mateo

raised a claim of direct persecution by the Guatemalan police. Finally, as noted,

the contention that the government's failure to protect a protected class from

violence even if the underlying violence did not target the protected class has no

support in our precedent. Of course, Tomas-Mateo was free to maµe a novel legal

argument before the BIA. However, if it was really her intent to do so, such an

argument should have been made specifically, and included at least some

discussion of any relevant legal authority. There was no further discussion of

police action or inaction in Tomas-Mateo's brief before the BIA. I would hold that

Tomas-Mateo failed to exhaust the issue of direct police persecution before the

7 BIA, and that we therefore lacµ jurisdiction to consider this claim. See 8 U.S.C.

y 12529d)(1); Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004).

Nevertheless, the majority chooses to read Tomas-Mateo's vague

contentions in her brief extremely charitably. For consistency's saµe, therefore, we

should read the BIA's decision with the same degree of charity. The BIA correctly

held 'The transcript is void of any testimony discussing the respondent's fear

associated with her tribal membership.' The word 'any' is broad enough to

encompass both 1) fear associated with tribal membership on account of gang

violence and, 2) Tomas-Mateo's fear that the police would fail to protect her on

account of her tribal membership. If the majority insists on giving Tomas-Mateo a

presumption that she raised a particular issue to the BIA, it should also presume

that the BIA addressed that issue.

Finally, I reiterate that I cannot see the point of remanding this case to the

BIA. Tomas-Mateo has submitted no evidence--none at all--that the police failed

to protect her on account of her Konjubal membership. Indeed, there is not even

any evidence in the record that Tomas-Mateo or her sister reported the crimes to

the police. Thus, the majority today remands to the BIA based on a claim which

was never properly raised or developed, and which the BIA in any event

effectively dismissed. Moreover, the majority pointlessly requires additional

8 proceedings before the BIA so that the BIA can most liµely reach the same exact

outcome.

For these reasons, I must dissent.

9