FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT CARLA PATRICIA DAVILA, No. 17-72173 Petitioner, Agency No. v. A208-122-961 WILLIAM P. BARR, Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted January 21, 2020 San Francisco, California Filed August 7, 2020 Before: William A. Fletcher and Ryan D. Nelson, Circuit Judges, and Donald W. Molloy,* District Judge. Opinion by Judge W. Fletcher * The Honorable Donald W. Molloy, United States District Judge for the District of Montana, sitting by designation. 2 DAVILA V. BARR SUMMARY** Immigration Granting Carla Patricia Davila’s petition for review of the Board of Immigration Appeals’ decision affirming the denial of her applications for asylum, withholding of removal, and protection under the Convention Against Torture, and remanding, the panel held that substantial evidence did not support the Board’s determination that Davila failed to establish that the Nicaraguan government was unable or unwilling to protect her from persecution by her domestic partner, or that a public official acting under the color of law had acquiesced to her torture. Davila reported her partner’s abuse to police, who took no action after her partner paid the officers a bribe. The panel held that substantial evidence did not support the Board’s determination that Davila failed to establish that the Nicaraguan government was unwilling or unable to protect her from persecution. The panel concluded that the Board erred by requiring Davila to report her abuse again, without considering her reasons for failing to do so, and by faulting her for failing to report the officers’ acceptance of the bribe. The panel also concluded that the Board erred by selectively considering country conditions evidence indicating that the Nicaraguan government was making positive strides in combating domestic violence and rape, while failing to take into account other evidence regarding the government’s failure to enforce, or lack of effective enforcement of, laws ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. DAVILA V. BARR 3 criminalizing rape and domestic violence. The panel observed that the Board did not address whether Davila belonged to a cognizable particular social group, was persecuted on account of her membership in that social group, or had a well-founded fear of future persecution. The panel therefore remanded for the Board to consider those issues in the first instance. For similar reasons, the panel also held that substantial evidence did not support the Board’s determination that Davila failed to establish sufficient state action, or government consent or acquiescence, in any torture. The panel remanded for the Board to consider in the first instance whether Davila’s abuse rose to the level of torture, and whether it is more likely than not that she would be tortured upon removal to Nicaragua. COUNSEL Luther M. Snavely (argued) and Reza Athari, Reza Athari & Associates, Las Vegas, Nevada, for Petitioner. Michael C. Heyse (argued), Trial Attorney; Mary ...
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