NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 18 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT HIDISBET MONDRAGON-GUTIERREZ, No. 17-72976 Petitioner, Agency No. A206-449-314 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted March 10, 2022** Phoenix, Arizona Before: PAEZ, CLIFTON, and WATFORD, Circuit Judges. Concurrence by Judge CLIFTON. Hidisbet Mondragon-Gutierrez, a native and citizen of Mexico, petitions for review of a decision of the Board of Immigration Appeals (BIA) affirming an * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Page 2 of 4 immigration judge’s (IJ) denial of her applications for withholding of removal and protection under the Convention Against Torture. We deny the petition. 1. The BIA erred in holding that Mondragon-Gutierrez’s past harm did not rise to the level of persecution. Our case law makes clear that “some forms of physical violence are so extreme that even attempts to commit them constitute persecution.” Kaur v. Wilkinson, 986 F.3d 1216, 1223–24 (9th Cir. 2021) (emphasis in original). Sexual assault, which involves “a severe violation of bodily integrity and autonomy,” is one such form of violence. Id. at 1222. The agency erred in dismissing Mondragon-Gutierrez’s experience as not rising to the level of persecution simply because the man who sought to assault her “did not actually do so.” This is particularly true because the attempted assault occurred in the context of a kidnapping at gunpoint, which also involves “the extreme loss of bodily autonomy” and is enough alone to constitute persecution. Id. at 1223. Mondragon-Gutierrez credibly testified as to the armed kidnapping and attempted sexual assault, explained that her attackers were members of the same group that had been extorting her family for years, and noted that her assailants threatened to kill her if her family did not pay. Considering the “totality of the circumstances,” Guo v. Ashcroft, 361 F.3d 1194, 1203 (9th Cir. 2004), her testimony establishes past harm rising to the level of persecution. Page 3 of 4 Nonetheless, substantial evidence supports the agency’s determination that Mondragon-Gutierrez failed to establish past persecution on account of a protected ground.1 To qualify for withholding of removal, an applicant bears the burden of demonstrating that she will be persecuted in the country of removal on account of her race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. §§ 1229a(c)(4)(A)(i), 1231(b)(3)(A); 8 C.F.R. § 1208.16(b). When an applicant relies on membership in a social group as the basis for withholding, she also bears the burden of identifying the group and demonstrating that it constitutes a cognizable particular social group. Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1228–29 (9th Cir. 2016). During the hearing before the IJ, Mondragon-Gutierrez’s attorney affirmatively declined to assert membership in …
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