Francisco Flores Medina v. Jefferson Sessions

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 16 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT FRANCISCO JAVIER FLORES MEDINA, No. 16-73010 Petitioner, Agency No. A077-057-256 v. MEMORANDUM* JEFFERSON BEAUREGARD SESSIONS III, Attorney General of the United States, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted April 13, 2018 Pasadena, California Before: BEA and MURGUIA, Circuit Judges, and MOLLOY,** District Judge. Petitioner Francisco Javier Flores Medina (“Flores”), a citizen of Mexico, appeals the Board of Immigration Appeals’ (“BIA”) dismissal of her appeal from the Immigration Judge’s (“IJ”) decision that she does not qualify for asylum, withholding of removal, or Convention Against Torture (“CAT”) protection. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Donald W. Molloy, United States District Judge for the District of Montana, sitting by designation. Flores argues the BIA erred by failing to consider separately her transgender identity; by concluding she did not suffer past persecution and did not establish a well-founded fear of future persecution so as to be eligible for asylum or withholding of removal; by conducting an inadequate country conditions analysis; and by concluding she did not qualify for protection under the CAT. The BIA had jurisdiction to review the IJ’s decision under 8 C.F.R. § 1003.1(b)(3), and we have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). Because the BIA reviewed the IJ’s decision de novo, and did not expressly adopt any part of it, our review is limited to the BIA’s decision.1 See Baghdasaryan v. Holder, 592 F.3d 1018, 1022 (9th Cir. 2010). The petition is granted on the limited grounds that the BIA did not consider separately Flores’s transgender identity and did not consider whether Flores’s treatment following arrest by the Mexican police constituted past persecution or showed a reasonable possibility she would be targeted in the future. It is denied in all other respects. I. Transgender analysis Flores exhausted her claim that the BIA erred by failing to consider separately her transgender identity because her appeal adequately put the BIA on 1 Sessions v. Dimaya, 584 U.S. ___ (2018), does not affect the issues in this case. While the IJ concluded Flores’s prior conviction was likely a crime of violence barring her eligibility for relief, the BIA assumed the bar did not apply and addressed Flores’s claims on the merits. 2 notice of that issue. See Figueroa v. Mukasey, 543 F.3d 487, 492 (9th Cir. 2008). She was not required to set forth the “specific legal ground for [her] challenge.” Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 873 (9th Cir. 2008). The BIA erred because it failed to consider Flores’s transgender identity. In Avendano-Hernandez v. Lynch, we concluded that “[t]he unique identities and vulnerabilities of transgender individuals must be considered in evaluating a transgender applicant’s asylum, withholding of removal, or CAT claim.” 800 F.3d 1072, 1082 (9th Cir. 2015). Here, while ...

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