NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 4 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANTOLIN LORENZO-LOPEZ, No. 15-71324

Petitioner, Agency No. A200-567-154

v.

MEMORANDUM*

MATTHEW G. WHITAKER, Acting Attorney General,

Respondent.

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

Argued and Submitted November 13, 2018 Pasadena, California

Before: PAEZ, PARKER,** and CLIFTON, Circuit Judges.

Antolin Lorenzo-Lopez petitions for review of the Board of Immigration

Appeals’ (“BIA”) decision denying her asylum, withholding of removal, and

Convention Against Torture (“CAT”) claims. We have jurisdiction under 8 U.S.C.

§ 1252.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Barrington D. Parker, United States Circuit Judge for the U.S. Court of Appeals for the Second Circuit, sitting by designation. 1. An asylum application must be filed within one year of a noncitizen’s last

arrival in the U.S. 8 U.S.C. § 1158(a)(2)(B). An exception allows consideration of

a late-filed application if the noncitizen demonstrates “extraordinary circumstances

relating to the delay in filing an application.” Id. at § 1158(a)(2)(D). The

application still must be filed “within a reasonable period given those

circumstances.” 8 C.F.R. § 208.4(a)(5). This court treats six months as the

“default” for a reasonable length of delay. Wakkary v. Holder, 558 F.3d 1049,

1058-59 (9th Cir. 2009) (quoting Husyev v. Mukasey, 528 F.3d 1172, 1182 n.4 (9th

Cir. 2008)).

Lorenzo-Lopez filed her asylum application approximately five years after

her last arrival and two years after her removal proceedings began. Lorenzo-Lopez

argues two grounds for a finding of extraordinary circumstances: (1) her mental

health; and (2) reliance on statements by Border Patrol that she could not apply for

asylum. Even if extraordinary circumstances existed, she failed to file the

application within a reasonable period. See Tamang v. Holder, 598 F.3d 1083,

1091 (9th Cir. 2010). We therefore deny Lorenzo-Lopez’s petition for review of

her asylum claim.

2. In contrast, the one-year filing deadline does not apply to withholding of

removal or CAT relief.

In rejecting Lorenzo-Lopez’s claims for withholding of removal and CAT

2 relief, the BIA found “no error in the Immigration Judge’s conclusion that the

respondent did not establish that the Mexican government is unwilling or unable to

protect her from violence or that a pattern or practice of persecution exists against

transgendered persons” or “that it is more likely than not she will be tortured by or

with the acquiescence of a government official.” However, in rejecting these

claims, the BIA did not have the benefit of our decision in Avendano-Hernandez v.

Lynch, 800 F.3d 1072 (9th Cir. 2015). There, we recognized the serious conditions

threatening transgender persons in Mexico and held that a transgender Mexican

woman was entitled to CAT relief. Id. at 1082 (noting “police specifically target

the transgender community for extortion and sexual favors, and [] Mexico suffers

from an epidemic of unsolved violent crimes against transgender persons”).

Given the similarities in the record evidence, we grant the petition for review

of the withholding of removal and CAT claims and remand for further

consideration in light of Avendano-Hernandez. Although there is a lack of

evidence of past persecution or torture in this case, that is not dispositive of

Lorenzo-Lopez’s claims for withholding of removal or CAT relief. For example, a

noncitizen can establish eligibility for withholding of removal through an

independent showing of a clear probability of future persecution based on a

systematic “pattern or practice” of persecution against the group to which she

belongs in her home country. 8 C.F.R. § 208.16(b)(2)(i); Wakkary, 558 F.3d at

3 1060. Yet, neither the Immigration Judge nor the BIA discussed the record

evidence submitted in this case concerning the conditions faced by transgender

persons in Mexico. The question for the agency on remand is whether this record

evidence, either alone or in combination with evidence of Lorenzo-Lopez’s past

experiences, is sufficient to establish that it is more likely than not that she will be

persecuted or tortured upon return. See Wakkary, 558 F.3d at 1067.

On remand, Lorenzo-Lopez may seek leave to update the evidence of

country conditions.

PETITION FOR REVIEW GRANTED IN PART, DENIED IN PART,

AND REMANDED.

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