FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT REBECA RUFINA CRISTOBAL No. 21-70624 ANTONIO, Petitioner, Agency No. A206-498-048 v. MERRICK B. GARLAND, Attorney OPINION General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted July 13, 2022 Pasadena, California Filed January 26, 2023 Before: Mark J. Bennett and Gabriel P. Sanchez, Circuit Judges, and Elizabeth E. Foote, * District Judge. Opinion by Judge Bennett; Concurrence by Judge Sanchez * The Honorable Elizabeth E. Foote, United States District Judge for the Western District of Louisiana, sitting by designation. 2 ANTONIO V. GARLAND SUMMARY ** Immigration Granting Rebeca Cristobal Antonio’s petition for review of the Board of Immigration Appeals’ decision upholding the denial of asylum and related relief, and remanding, the panel held that (1) substantial evidence did not support the agency’s determination that the treatment Antonio suffered did not amount to persecution, (2) the agency erred in characterizing Antonio’s proposed social group and concluding that it was not cognizable, and (3) the agency erred by failing to consider highly probative evidence regarding the Guatemalan government’s willingness or ability to control the persecution. Individuals in Antonio’s community verbally and physically harassed and threatened her with death because they perceived her to be a lesbian because she wore men’s clothing to work. Specifically, Antonio’s neighbors threatened that if she dressed in men’s clothing they would “get together and burn her down and whip her,” and told her that if she did not leave the community, they would kill her. The panel explained that in concluding that this treatment amounted simply to threats the immigration judge failed to recognize that threats may be compelling evidence of past persecution, particularly when the threats are specific and menacing and accompanied by violent confrontations, near-confrontations and vandalism. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. ANTONIO V. GARLAND 3 The panel explained that in this case, the record revealed much more than threats alone. A crowd met Antonio at her workplace and threatened to lynch and burn her if she did not remove the men’s clothing. Her neighbors told her husband they believed she was bisexual or lesbian, and even spoke with her grandparents, who were scared for her safety. Community members took her to the police because they perceived her to be a lesbian, and Antonio’s family members violently attacked her. Taken together, the panel concluded that the death threats, mob violence, involuntary transport to the police station, and repeated whipping by her uncles compelled the conclusion that Antonio suffered past persecution. Antonio asserted that she was persecuted on account of her membership in a social group comprised of “wom[e]n in Guatemala who are perceived to have male tendencies and are seen as dangerous to the community.” The IJ found this articulation too “amorphous” and reasoned that the style of Antonio’s dress was not an immutable characteristic qualifying …
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