NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 8 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CINTIA MAITE PEREZ ZAMORA, No. 18-70021

Petitioner, Agency No. A206-461-940

v.

MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Argued and Submitted November 18, 2020 Pasadena, California

Before: FERNANDEZ, PAEZ, and OWENS, Circuit Judges. Partial Concurrence and Partial Dissent by Judge FERNANDEZ

Cintia Perez Zamora (“Zamora”), 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”) denial of asylum,

withholding of removal, and protection under the Convention Against Torture

(“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review de novo the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. agency’s legal determinations and we review its factual findings for substantial

evidence. Singh v. Holder, 656 F.3d 1047, 1051 (9th Cir. 2011). We grant in part

and dismiss in part the petition for review and remand to the BIA for further

consideration.

1. Zamora challenges the agency’s rejection of her proposed social group of

“young women without parental protection who are raped” as not cognizable due

to its circularity by including elements of harm. To determine whether a proposed

social group is cognizable, the BIA asks whether the group is “(1) composed of

members who share a common immutable characteristic, (2) defined with

particularity, and (3) socially distinct within the society in question.” Rios v.

Lynch, 807 F.3d 1123, 1127-28 (9th Cir. 2015) (citation omitted). In our recent

opinion, Diaz-Reynoso v. Barr, we held that a proposed social group is not

necessarily disqualified if it includes mention of feared persecution. 968 F.3d

1070, 1081-82 (9th Cir. 2020). In light of Diaz-Reynoso, we grant the petition for

review in part on the BIA’s decision to deny Zamora’s asylum and withholding

claims and remand for further proceedings.

2. Zamora also challenges the denial of her claim for CAT relief. The CAT

forbids the government from removing a person to any country where it is “more

likely than not” that she will be tortured by either the government or private

individuals acting with the government’s acquiescence. 8 C.F.R. § 1208.16(c)(2).

2 The BIA concluded that Zamora’s assertion that Guatemalan police would not

protect her from her neighbors “was based on speculation and was not supported

by objective evidence.” We grant the petition for review in part and remand to the

BIA for adequate consideration of Zamora’s age as one of the factors in

determining that there was government acquiescence to torture. See Bringas-

Rodriguez v. Sessions, 850 F.3d 1051, 1071 (9th Cir. 2017).

3. There are two avenues for humanitarian asylum under 8 C.F.R.

§ 1208.13(b)(1)(iii). Sub-section (A) requires a finding of “past persecution,” i.e.,

harm on account of a protected ground. We remand Zamora’s claim for

humanitarian asylum based on “past persecution” for further consideration

consistent with this memorandum. To the extent that Zamora’s request for

humanitarian asylum is based upon the “other serious harm” provision of sub-

section (B), we lack jurisdiction over it because Zamora did not raise this argument

before the BIA. 8 U.S.C. § 1252(d)(1). We dismiss the petition for review in part

with respect to Zamora’s claim for humanitarian asylum under 8 C.F.R.

§ 1208.13(b)(1)(iii)(B).

Petition GRANTED IN PART, DISMISSED IN PART, and

REMANDED.

3

FILED

Perez Zamora v. Barr, No. 18-70021

DEC 8 2020

FERNANDEZ, Circuit Judge, concurring in part and dissenting in part: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I concur in paragraphs 1 and 3 of the disposition because I understand that

we are directing the BIA to consider if and how the legal principles set forth in

Diaz-Reynoso v. Barr, 968 F.3d 1070 (9th Cir. 2020) affect its ultimate decision

regarding Perez’s asylum and withholding claims. However, I dissent from

paragraph 2 because the evidence in this record would not compel a determination

that Perez would be tortured by the government or that the government would

acquiesce in her torture. See 8 C.F.R. § 1208.18(a); see also

8 C.F.R. § 1208.16(c)(2). Thus, I respectfully concur in part and dissent in part.