Iris Zapata Fornel v. Merrick Garland


NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 16 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT IRIS YOLANDA ZAPATA FORNEL; No. 15-72968 MAYERLIN YOLANI ZAMBRANO ZAPATA, Agency Nos. A206-796-735 A206-796-736 Petitioners, v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted March 11, 2022** Seattle, Washington Before: NGUYEN, MILLER, and BUMATAY, Circuit Judges. Iris Zapata-Fornel and her daughter Mayerlin petition for review from a Board of Immigration Appeals (“BIA”) decision denying their applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). * 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). We have jurisdiction under 8 U.S.C. § 1252(a). We grant the petition in part and deny in part. 1. We grant Zapata-Fornel’s petition with respect to her claims of asylum and withholding of removal based on her status as a woman in Honduras. While the BIA does not err when it declines to consider an applicant’s argument raised for the first time on appeal, Honcharov v. Barr, 924 F.3d 1293, 1297 (9th Cir. 2019) (per curiam), the BIA does err when it fails to address arguments that are properly raised before it. See Muradin v. Gonzales, 494 F.3d 1208, 1210 (9th Cir. 2007); Chen v. Ashcroft, 362 F.3d 611, 620 (9th Cir. 2004). To be properly raised, the issue need not have been “raised in a precise form during the administrative proceeding.” Bare v. Barr, 975 F.3d 952, 960 (9th Cir. 2020). “Rather, the petitioner may raise a general argument in the administrative proceeding and then raise a more specific legal issue on appeal. What matters is that the BIA was sufficiently on notice so that it ‘had an opportunity to pass on [the] issue.’” Id. (citation omitted) (quoting Zhang v. Ashcroft, 388 F.3d 713, 721 (9th Cir. 2004) (per curiam)). The BIA erred in failing to consider Zapata-Fornel’s claims of asylum and withholding of removal based on persecution of Honduran women. In her initial application before the IJ, Zapata-Fornel stated that she feared “violence and persecution as a victim of domestic violence who cannot leave her partner, as a woman in Honduras, and as a single mother.” Zapata-Fornel also attached multiple 2 exhibits detailing violence against women in Honduras. However, in issuing its ruling, the IJ focused on Zapata-Fornel’s domestic violence claim and did not reach her claim on the basis of being a Honduran woman. On appeal before the BIA, Zapata-Fornel again raised her claims based on persecution of Honduran women. Specifically, Zapata-Fornel argued that “Honduran women suffer a pattern and practice of persecution” and that her fear of future persecution was reasonable based on the evidence in the record. Zapata- Fornel also attached some of the same reports and evidence that …

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