No IN THE SUPREME COURT OF THE UNITED STATES MARCH 2017 TERM. MS. VIVIANE SALA, Petitioner, UNITED STATES OF AMERICA, Respondent.

Transcription

1 No IN THE SUPREME COURT OF THE UNITED STATES MARCH 2017 TERM MS. VIVIANE SALA, Petitioner, v. UNITED STATES OF AMERICA, Respondent. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTEENTH CIRCUIT BRIEF FOR PETITIONER Team 8 Brief for Petitioner

2 ISSUES PRESENTED FOR REVIEW I. Was it error for the Fourteenth Circuit to hold that there was no nexus between Ms. Sala s protected characteristic as a trans woman and her persecution, especially given that they failed to consider the male-gendered nature of the slurs? II. Does the evidence compel a finding that the government of San Martino was unable and unwilling to protect Ms. Sala and that it was unreasonable for her to relocate within San Martino? i

3 TABLE OF CONTENTS ISSUES PRESENTED FOR REVIEW... TABLE OF CONTENTS... TABLE OF AUTHORITIES... Page i ii iv JURISDICTIONAL STATEMENT... 1 STATEMENT OF THE CASE... 1 Statement of the Facts... 1 Procedural History... 4 STANDARD OF REVIEW... 5 SUMMARY OF THE ARGUMENT... 5 ARGUMENT... 7 I. THE FOURTEENTH CIRCUIT FAILED TO ANALYZE KEY EVIDENCE THAT DEMONSTRATES MS. SALA ESTABLISHED NEXUS UNDER THE REAL ID ACT A. The Fourteenth Circuit Neglected to Consider the Male-Gendered Nature of the Slurs Used in All Three Incidents Involving Ms. Sala and Thus Failed to Complete an Appropriate Review of The BIA s Decision B. When the Gendered Nature of the Slurs Are Considered, it Becomes Apparent Ms. Sala Met Her Burden Under the Real ID Act This case is factually distinguishable from cases where there was a lack of nexus The case presented here is more similar to cases where nexus nexus was established further demonstrating the Fourteenth Circuit s error ii

4 TABLE OF CONTENTS (CONT.) Page II. THE FOURTEENTH CIRCUIT ERRED IN FINDING THAT SAN MARTINO WAS WILLING AND ABLE TO PROTECT MS. SALA AND IN FINDING THAT SHE COULD SAFELY AND REASONABLY RELOCATE WITHIN THE COUNTRY A. The Fourteenth Circuit Has Underestimated the Threat That ACCE Poses to Ms. Sala and Wrongfully Held That the San Martino Government is Willing and Able to Protect Her Substantial evidence supports Ms. Sala s credible assertion the ACCE was responsible for the incidents a) The Fourteenth Circuit relies too heavily on the 2013 San Martino Report and underestimates the threat of ACCE in San Martino Ms. Sala s decision not to report the incident does not undermine her claim that the San Martino government is unwilling and unable to protect her Ms. Sala would be in serious danger if she is forced to return to Martino B. The United States Has Not Met Their Burden in Establishing That Ms. Sala Could Safely and Reasonably Relocate Within San Martino Ms. Sala cannot safely relocate within San Martino due to the small size of the country and the increasing ACCE presence in the region Relocation is unreasonable because Ms. Sala cannot safely relocate to another part of the country CONCLUSION iii

5 TABLE OF AUTHORITIES Cases Page(s) Supreme Court of the United States INS v. Elias-Zacarias, 502 U.S. 478 (1992)... 8, 9, 17 INS v. Orlando Ventura, 537 U.S. 12 (2002)... 9 United States Courts of Appeals Afriyie v. Holder, 613 F.3d 924 (9th Cir. 2010) Aldana-Ramos v. Holder, 757 F.3d 9 (1st Cir. 2014)... 15, 16 Ambartsoumian v. Ashcroft, 388 F.3d 85 (3d Cir. 2004)... 13, 14 Arboleda v. U.S. Att y Gen., 434 F.3d 1220 (11th Cir. 2006) Avetovo-Elisseva v. INS, 213 F.3d 1192 (9th Cir. 2000)... 21, 26 Baghdasaryan v. Holder, 592 F.3d 1018 (9th Cir. 2010)... 11, 15 Bi Xia Qu v. Holder, 618 F.3d 602 (6th Cir. 2010)... 9, 21 Cordova v. Holder, 759 F.3d 332 (4th Cir. 2014) Crespin-Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011) Del Carmen Molina v. INS, 170 F.3d 1247 (9th Cir. 1999) Fedunyak v. Gonzales, 477 F.3d 1126 (9th Cir. 2007) iv

6 TABLE OF AUTHORITIES (CONT.) Cases Page(s) Girma v. INS, 283 F.3d 664 (5th Cir. 2002)... 13, 14 Ivanov v. Holder, 736 F.3d 5 (1st Cir. 2006)... 10, 18, 20 Jorge-Tzoc v. Gonzales, 435 F.3d 146 (2d Cir. 2006) Kayembe v. Ashcroft, 334 F.3d 231 (3d Cir. 2003) Khattak v. Holder, 704 F.3d 197 (1st Cir. 2013) Khudaverdyan v. Holder, 778 F.3d 1101 (9th Cir. 2015) Lie v. Ashcroft, 396 F.3d 530 (3d Cir. 2005) Lal v. INS, 255 F.3d 998 (9th Cir. 2001) Mashiri v. Ashcroft, 383 F.3d 1112 (9th Cir. 2004) Mengistu v. Ashcroft, 355 F.3d 1044 (7th Cir. 2004) Mihalev v. Ashcroft, 388 F.3d 722 (9th Cir. 2004) Ming Ming Wijono v. Gonzales, 439 F.3d 868 (8th Cir. 2006) Mohideen v. Gonzales, 416 F.3d 567 (7th Cir. 2005) Ndayshimiye v. U.S. Att y Gen., 557 F.3d 124 (3d Cir. 2009)... 8 v

7 TABLE OF AUTHORITIES (CONT.) Cases Page(s) Ndonyi v. Mukasey, 541 F.3d 702 (7th Cir. 2008) Niang v. Gonzales, 422 F.3d 1187 (10th Cir. 2005)... 9 Ordonez-Quino v. Holder, 760 F.3d 80 (1st Cir. 2014) Osorio v. INS, 18 F.3d 1017 (2d Cir. 1994)... 8 Parussimova v. Mukasey, 555 F.3d 734 (9th Cir. 2008)... 8, 12, 17 Quinteros-Mendoza v. Holder, 556 F.3d 159 (4th Cir. 2009) Rahimzadeh v. Holder, 613 F.3d 916 (9th Cir. 2010) Sanchez Jimenez v. U.S. Att y Gen., 492 F.3d 1223 (11th Cir. 2007)... 10, 12 Silva v. U.S. Att y Gen., 448 F.3d 1229 (11th Cir. 2006) Sinha v. Holder, 564 F.3d 1015 (9th Cir. 2009) Smolniakova v. Gonzales, 422 F.3d 1037 (9th Cir. 2005) Sompotan v. Mukasey, 533 F.3d 63 (1st Cir. 2008)... 12, 13, 18 Tambadou v. Gonzales, 446 F.3d 298 (2d Cir. 2006) Tan v. U.S. Att y Gen., 446 F.3d 1369 (11th Cir. 2006) vi

8 TABLE OF AUTHORITIES (CONT.) Cases Page(s) Tarubac v. INS, 182 F.3d 1114 (9th Cir. 1999) Toure v. Holder, 624 F.3d 422 (7th Cir. 2010) Board of Immigration Appeals In re J-B-N- & S-M- 24 I. & N. Dec. 208 (BIA 2007)... 8, 12, 13, 14 In re S-A-, 22 I. & N. Dec (BIA 2000) In re S-P-, 21 I. & N. Dec. 486 (BIA 1996)... 7, 8 Matter of Fuentes, 19 I. & N. Dec. 658 (BIA 1988)... 8 Matter of N-M-, 25 I. & N. Dec. 526 (BIA 2011) Federal Statutes 8 U.S.C. 1101(a)(42)(A) (2015)... 7, 21 8 U.S.C. 1158(b)(1)(B)(i) (2015)... 8, 16 8 C.F.R (b) (2015)... 28, 29, 30 vii

9 No IN THE SUPREME COURT OF THE UNITED STATES MARCH 2017 TERM MS. VIVIANE SALA, Petitioner, v. UNITED STATES OF AMERICA, Respondent. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTEENTH CIRCUIT BRIEF FOR PETITIONER JURISDICTIONAL STATEMENT A statement of jurisdiction has been omitted in accordance with the rules of the UC Davis School of Law Asylum and Refugee Law National Moot Court Competition. STATEMENT OF THE CASE Statement of the Facts San Martino is a small South American country of approximately 50,000 square kilometers, home to 5,000,000 people. (Record 5.) The majority of the population lives in the capital city of Paraisa and the smaller city of Juarez. (Record 5.) The country is considered to be open-minded and has decriminalized sex work. (Record 5.) However, there is also a growing 1

10 conservative sentiment and in the early 2000 s a white nationalist, Christian identity group called Alianza de Colonos Cristianos Europeos ( ACCE ) arose. (Record 5.) The group quickly evolved into small cell-based operations across the country. (Record 5.) ACCE follows a fundamentalist sect of Christianity and believes that homosexuality, transgenderism, women working outside the home and sex work are all grave sins. (Record 5.) In 2008, ACCE reached its peak of notoriety and violence spread across both urban and rural San Martino. (Record 6.) ACCE was seen as responsible for the widespread murders of sex workers and a large number of trans individuals. (Record 6.) Trans women make up a disproportionate percentage of the sex workers in San Martino. (Record 6.) This murderous spree led the San Martino government to enact hate crime legislation and crack down on ACCE. (Record 6.) According to the United States State Department s 2013 Report on San Martino ( 2013 San Martino Report ), this response was successful as both the number of hate crimes and ACCE members was reduced. (Record 6.) The 2013 San Martino Report estimated the number of ACCE members between 5,000 and 35,000. (Record 6.) However, recently ACCE has received San Martino and United States media coverage on their resurgence. (Record 6.) U.S. media outlets also commented that their reemergence could be connected to a rightward shift within the San Martino government. (Record 8.) Despite being born a biological male Viviane Sala has identified as a woman her entire life. (Record 7.) Ms. Sala was born and raised in Paraisa, but in 2009 her parents relocated them to a small town several hours outside of Juarez. (Record 7.) The more conservative nature of the town frustrated Ms. Sala and she became more reserved about her gender identity. (Record 7.) In public Ms. Sala passed as a cisgender female. (Record 7.) Around 2012, Ms. Sala took up sex work in another rural town and has not spoken to her parents since. (Record 7.) 2

11 During the summer of 2014, Ms. Sala experienced three persecutory acts. (Record 7.) In early June, a man described as Western European threw an improvised tear gas explosive at Ms. Sala who was walking home with her roommates, who were also sex workers. (Record 7.) He also yelled several slurs as he drove by, including derogatory terms for sex workers. (Record 7.) Despite the group consisting entirely of women, the man used some male-gendered slurs. (Record 8.) The women only suffered minor injuries and decided not to report the incident. (Record 8.) They felt that as sex workers harassment was inevitable and the police would probably not catch the assailant. (Record 8.) One week after the incident, Television San Martino ( TVSM ) nationally broadcasted a widely-viewed exposé that extensively profiled sex workers across the country and discussed the possible reemergence of ACCE. (Record 8.) Ms. Sala was interviewed in the exposé and she openly discussed her transgender status. (Record 8.) The exposé also noted that she was the only trans woman in her town. (Record 8.) Less than one week after the exposé aired, Ms. Sala s house was vandalized and spray-painted with graffiti. (Record 8.) The graffiti consisted of similar slurs to the first incident, including male-gendered terms, and threats of violence. (Record 8.) Ms. Sala s roommates told her that it was not worth reporting the incident because the vandals might retaliate. (Record 8.) Ms. Sala believed that the drive-by and vandalism were related and that the TVSM exposé escalated the situation. (Record 8.) Over a month after the vandalism, the third and most serious incident of persecution occurred. (Record 8.) While Ms. Sala was working, a Western European man posing as a customer approached her. (Record 8-9.) As soon as they were alone, he physically attacked her, leaving her with significant injuries. (Record 8.) Ms. Sala had never seen her assailant before, but she was able to look at him closely and noted that he had a Celtic cross tattoo on his forearm. 3

12 (Record 9.) Based on her fear of retaliation and her roommates previously urging her not to involve the police, Ms. Sala did not contact law enforcement. (Record 9.) She also held the belief that reporting the incident would be fruitless. (Record 9.) Ms. Sala feared that the violence would continue to escalate if she did not leave San Martino. (Record 9.) Ms. Sala believed that ACCE and its reemergence, after five years of retreat, was behind all three incidents. (Record 9.) She contemplated moving in with her cousins in Paraisa, but ultimately decided that relocating anywhere within San Martino would be just as dangerous. (Record 9.) Ms. Sala entered the United States in 2015, with the hope of finding a safe place for trans individuals where she would not face persecution. (Record 6.) Shortly after arriving in the United States local police detained Ms. Sala. (Record 6.) The Department of Homeland Security ( DHS ) served Ms. Sala with a notice to appear, charging her with removability, and in response she requested asylum. (Record 6.) Procedural History During the immigration proceedings before the Immigration Judge ( IJ ) adjudicating Ms. Sala s claim, the U.S. government stipulated that the cumulative effect of the harms from all three incidents established persecution. (Record 10.) In denying Ms. Sala s petition for asylum the IJ made a number of findings. (Record 10.) While Ms. Sala was a credible witness, she had failed to establish a nexus between the assaults against her and her protected status as a trans woman. (Record 10.) The government presented sufficient evidence to establish that it was her profession as a sex worker that was the primary motivation for the attacks rather than her trans status. (Record 10.) The IJ also held that the San Martino government would have been able to protect Ms. Sala from the persecution and that it would be reasonable for her to relocate to another area of San Martino. (Record 10.) Ms. Sala appealed the IJ s decision and the Board of 4

13 Immigration Appeals ( BIA ) summarily affirmed the IJ s finding without issuing an independent opinion. (Record 10.) Ms. Sala then filed a timely appeal to the Fourteenth Circuit Court of Appeals which affirmed the BIA s decision. (Record 10.) The Fourteenth Circuit decision was not unanimous and there was one dissenting opinion. (Record 19.) This Court then granted Ms. Sala s petition for a writ of certiorari. (Record 2.) STANDARD OF REVIEW Demonstrated questions of law, such as if there is substantial evidence upon which to establish nexus between persecution and a protected ground, if the government of San Martino was able to protect Ms. Sala, and, if relocation was in fact reasonable, are subject to de novo review. See Pierce v. Underwood, 487 U.S. 552, 558 (1988). SUMMARY OF THE ARGUMENT The Real ID Act does not require Ms. Sala to show that her protected status as a transgender woman was the most important motivation for her persecutors to act. All Ms. Sala is required to show is that her protected status was a motivating reason for her persecution. The Fourteenth Circuit erred when it determined that Ms. Sala had not met that burden. In making their decision, the Fourteenth Circuit failed to take into account the gendered nature of the slurs used against Ms. Sala. The Fourteenth Circuit s failure to analyze this evidence is a fatal flaw that can lead to their decision being reversed. Another impact of this error was to force Ms. Sala to meet a burden above and beyond what the Real ID Act requires. Specifically, it forced her to show that the only reason she was attacked was because of her transgender identity. The male slurs used in all three incidents demonstrate that her trans status was at least a central reason for her persecution. For the first incident, while she openly identified and 5

14 attempted to pass as a cisgender woman, it is clear that her attacker had at least some suspicion that she was not a biological female. Otherwise, using a male-gendered slur while launching an improvised tear gas explosive at a group of female sex workers simply does not make sense. Following Ms. Sala s participation in the TV exposé, two more incidents of persecution occurred. During that exposé, Ms. Sala admitted that she was a transgendered individual and it was revealed that she was the only one in her town. Shortly thereafter, the second incident of persecution took place. The male-gendered slurs indicate that the house was targeted because the only trans woman in the town, who also happened to be a sex worker, lived there. The third and most serious incident of persecution presents the strongest demonstration of nexus between Ms. Sala s status and the brutal physical harm she experienced. A man who approached Ms. Sala, posing as a potential client, sought to isolate her and then attacked her. While Ms. Sala concedes that she did not know this man and that he was not the same one from the tear gas incident, she was able to observe a Celtic cross tattoo on his arm. This tattoo indicates that her attacker held particular views that would encourage him to harm her based on her transgender status. The Fourteenth Circuit s failure to account for the gendered nature of the slurs is an error and their decision ought to be reversed. Furthermore, once the nature of the slurs is taken into account, Ms. Sala s credible testimony establishes that she was persecuted because of her protected status. Ms. Sala s profession as a sex worker was incidental to the primary motivation of harming her. Ms. Sala did meet her burden of proving that the San Martino government was unwilling or unable to protect her. The Fourteenth Circuit erred when it relied so heavily on the vague and outdated 2013 San Martino Report. The Report does not accurately reflect the current climate for trans individuals in San Martino. It has been held that Ms. Sala is a credible witness, so the 6

15 Fourteenth Circuit should have given her testimony more weight. Additionally, Ms. Sala reasonably believed that reporting the incidents to law enforcement would not have led to her protection. Case law makes it clear that her failure to report does not reveal anything about the San Martino government s ability or willingness to control ACCE. Finally, the United States has not met their burden of proving that Ms. Sala could safely and reasonably relocate within San Martino. Ms. Sala faced three incidents of persecution, one of which left her with serious injuries. Due to the TVSM exposé Ms. Sala and her transgender status are known nationally, making it more challenging for her to remain safe in the small country. ACCE has previously shown that it can grow rapidly and instigate violence in both cities and rural areas. Although Ms. Sala has a viable place to live in Paraisa, she will still be in danger if she moves in with her cousins. Since relocation within San Martino will not ensure Ms. Sala s safety, it cannot be considered reasonable. ARGUMENT I. THE FOURTEENTH CIRCUIT FAILED TO ANALYZE KEY EVIDENCE THAT DEMONSTRATES MS. SALA ESTABLISHED NEXUS UNDER THE REAL ID ACT. A refugee is defined as an alien who is unwilling or unable to return to their home country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. 1101(a)(42)(A) (2015) (emphasis added). The on account of language essentially means that the standard of review is whether the applicant has produced evidence from which it is reasonable to believe that the harm was motivated by a protected ground. In re S-P-, 21 I. & N. Dec. 486, 490 (BIA 1996). The most recent clarification of what this language requires is articulated in the 2005 Real ID Act. Pub. L. No , div. B, 119 Stat The Real ID Act amendment to the 7

16 Immigration and Nationality Act placed the burden on the applicant to establish that race, religion, nationality, membership in a particular social group, or political opinion was... at least one central reason for persecuting the applicant. 8 U.S.C. 1158(b)(1)(B)(i) (2015) (emphasis added). This legislative action can be interpreted as congressional approval of the long history of case law that does not require the applicant for asylum to prove the exact motive. INS v. Elias- Zacarias, 502 U.S. 478, 483 (1992); see Osorio v. INS, 18 F.3d 1017, 1028 (2d Cir. 1994); Matter of Fuentes, 19 I. & N. Dec. 658, 662 (BIA 1988) (noting an applicant does not bear the unreasonable burden of establishing the exact motivation of a persecutor where different reasons for actions are possible. ) superseded by statute as stated in Gavilano Amado v. U.S. Att y Gen., 522 Fed. Appx. 602, 606 (11th Cir. 2013). The BIA has confirmed that its standard in mixed motive cases has not been radically altered by the [Real ID Act] amendments. In re J-B-N- & S-M-, 24 I. & N. Dec. 208, 214 (BIA 2007). In re J-B-N- is considered a seminal case on the BIA s interpretation of the Real ID Act. See Ndayshimiye v. Att y Gen. of U.S., 557 F.3d 124, 128 (3rd Cir. 2009); Singh v. Mukasey, 543 F.3d 1, 5 (1st Cir. 2008) (quoting In re J-B-N-, 24 I. & N. Dec. at 214). Thus, it remains that there is no obligation for the applicant to show that the protected ground be the central reason for the actions of the persecutors. Id. at 213 (emphasis in original); see also In re S-P-, 21 I. & N. Dec. at 489 (observing [a]n asylum applicant is not obliged to show conclusively why persecution has occurred or may occur. ); Parussimova v. Mukasey, 555 F.3d 734, 740 (9th Cir. 2008) (explaining that an asylum applicant need not prove that a protected ground was the only central reason for the persecution she suffered. ). Instead, all the asylum applicant is required to show is that the protected ground is not incidental, tangential, superficial, or subordinate to another reason for harm. In re J-B-N-, 24 I. & N. Dec. at 214; Parussimova, 555 F.3d at

17 Ms. Sala has demonstrated that her protected status as a transgender individual was more than incidental or superficial to her persecution. Her status as a trans woman provided at least one of the central reasons for the three aggressive actions taken against her. The Fourteenth Circuit s erroneous conclusion that she did not establish a nexus between the harm she suffered and her protected status is a result of their faulty mixed-motive analysis. The male-gendered slurs that demonstrate the individuals intent to harm Ms. Sala because of her transgender status were not acknowledged in the court s analysis. When all of the evidence is taken into account, Ms. Sala easily meets her burden under the Real ID Act and is eligible for asylum. A. The Fourteenth Circuit Neglected to Consider the Male-Gendered Nature of the Slurs Used in All Three Incidents Involving Ms. Sala and Thus Failed to Complete an Appropriate Review of the BIA s Decision. The Fourteenth Circuit was tasked with reviewing the BIA s determination and ensuring that their finding was based on substantial evidence. Bi Xia Qu v. Holder, 618 F.3d 602, 608 (6th Cir. 2010). Under the substantial-evidence standard the Appellate Court has a duty to guarantee that factual determinations are supported by reasonable, substantial and probative evidence considering the record as a whole. Niang v Gonzales, 422 F.3d 1187, 1196 (10th Cr. 2005) (citing Elzour v. Ashcroft, 378 F.3d 1143, 1150 (10th Cir. 2004)). The judicial review of an administrative agency s finding is a highly deferential one. INS v. Elias-Zacarias established that a higher-level court should only disturb the BIA s finding when evidence not only supports that conclusion, but compels it. 502 U.S. at 481, n. 1 (emphasis in original). However, this deference meets its limit when the administrative agency s opinion contains a grave error. A court reviewing the decision of an agency must remand if the agency has failed to consider an argument that has merit. See INS v. Orlando Ventura, 537 U.S. 12, (2002). 9

18 Both Appellate Courts and the BIA have articulated that neglecting to review the entirety of the available evidence is a serious shortcoming. See Jorge-Tzoc v. Gonzales, 435 F.3d 146, 150 (2nd Cir. 2006) (citing Cao He Lin v. Dep t of Justice, 428 F.3d 391, 401 (2nd Cir. 2005)); see also Ivanov v. Holder, 736 F.3d 5, 11 (1st Cir. 2013) (noting we may not affirm the IJ s findings if we cannot conscientiously find the evidence supporting them is substantial, when viewed in the light that the record in its entirety furnishes. (citing Kartasheva v. Holder, 582 F.3d 96, 105 (1st Cir. 2009) (internal quotations omitted); Matter of N-M-, 25 I. & N. Dec. 526, (BIA 2011) (reversing the IJs decision because they failed to consider evidence supporting DHS s position). There is vast judicial recognition that failing to properly account for evidence germane to the applicant s asylum claim is reversible error. In Ordonez-Quino v. Holder, the First Circuit remanded because it appeared that both the IJ and the BIA ignored or unreasonably interpreted crucial documentary evidence. 760 F.3d 80, 88 (1st Cir. 2014). The Eleventh Circuit in Sanchez Jimenez v. United States Attorney General came to a similar conclusion when it determined the BIA had failed to consider the record as a whole. 492 F.3d (11th Cir. 2007). After a complete review, the evidence compelled the conclusion that the applicant was targeted because of his political activities. Id.; see, e.g., Ndonyi v. Mukasey, 541 F.3d 702, 711 (7th Cir. 2008) (noting the IJ and the BIA ignored the record as a whole and the context of the applicant s arrests); Mohideen v. Gonzales, 416 F.3d 567, (7th Cir. 2005) (holding it is not sufficient simply to ignore [evidence] when announcing a decision. ). Precedent firmly establishes that when the applicant is credible and there is evidence to support their grounds for relief, that ground must be analyzed. For example, in Khudaverdyan v. Holder, the IJ decided the applicant was ineligible for asylum because he had failed to establish a 10

19 nexus between his persecution and his imputed political opinion. 778 F.3d 1101, 1105 (9th Cir. 2015). However, the Ninth Circuit determined that the BIA failed to consider the evidence that supported nexus between the persecution and the imputed political opinion and overturned the BIA. Id. at Similarly, in Baghdasaryan v. Holder, the Ninth Circuit again admonished the BIA for ignoring compelling evidence of nexus and not giving appropriate weight to key facts. 592 F.3d 1018, 1025 (9th Cir. 2010). When all of the evidence has not been considered, it is impossible for the asylum decision to stand. Case law amply supports this assertion because an agency opinion that fails to build a rational bridge between the record and the agency s legal conclusion cannot survive judicial review. Mengistu v. Ashcroft, 355 F.3d 1044, 1047 (7th Cir. 2004). Failing to consider key aspects of Ms. Sala s claim prevented the BIA and the Fourteenth Circuit from building a rational bridge between their assessment of her claim and the record. In failing to account for the gendered nature of the slurs, the Fourteenth Circuit itself committed a grave legal error, which the dissenting opinion calls to attention. In regards to the first incident of persecution that Ms. Sala faced, the Fourteenth Circuit simply asserts that all the assailant did was yell several slurs. From this evidence the Fourteenth Circuit summarily concluded that there was no other possible inference to draw from that evidence. However, there is no mention of the fact that the slurs were male-gendered, which demonstrates she was targeted for more than just being a sex worker. In analyzing the incidents that occurred after the TVSM exposé, the Fourteenth Circuit declared that because Ms. Sala had been open about her trans identity, the airing of the exposé was not evidence of nexus. This analysis neglects to take into account Ms. Sala s testimony that upon moving to the rural area of San Martino she became reserved about her trans status and could pass a cisgender woman. As a result, TVSM 11

20 identifying her as the only trans woman in the town did make her status known and is evidence of nexus. The male-gendered slurs appearing on the house where the only trans woman lived is also completely lacking from the Fourteenth Circuit s analysis. During the last attack, while the assailant made no mention of the TVSM exposé, he did use male-gendered slurs and had a tattoo which suggests he holds anti-trans sentiments. These are serious omissions that demonstrate the Fourteenth Circuit did not correctly consider Ms. Sala s claim and ought to be reversed. B. When the Gendered Nature of the Slurs Are Considered, it Becomes Apparent Ms. Sala Met Her Burden Under the Real ID Act. The Real ID Act was not a drastic departure from what courts required before its passage. See In re J-B-N-, 24 I. & N. Dec. at 214. The Ninth Circuit defined a central reason [as] a reason of primary importance to the persecutors, one that is essential to their decision to act. Parussimova, 555 F.3d at 740 (internal quotations omitted). It also noted that a central reason... represents more than a mere part of a persecutors motivation and thus, it was a more onerous standard to meet. Id. (internal quotations omitted). However, the Ninth Circuit went on to elaborate that there could be multiple central reasons for persecution and the petitioner for asylum is only required to show that the protected ground was one of these reasons, not necessarily the most dominant one. Id. The First Circuit has also interpreted the Act in such a way that an applicant must only show that the persecution was based, at least in part, on an impermissible motivation. Sompotan v. Mukasey, 533 F.3d 63, 69 (1st Cir. 2008). As a result, decisions that came before the Real ID Act can still be instructive. Many cases are still decided using the at least in part language and continue to reference decisions from before the passage of the Real ID Act in See Sanchez Jimenez, 492 F.3d at 1232 (noting at least seven other circuits have reached the same conclusion and citing a long line of precedent that includes cases from both before and after the Real ID Act); see also Tan v. U.S. 12

21 Att y Gen., 446 F.3d 1369, 1375 (11th Cir. 2006). Regardless of what language is used, even if another motive exists, the applicant is not precluded from showing the protected ground was also a part of the decision to act. Sompotan, 533 F.3d at 69. The Fifth Circuit notes that the predominant motive for the abuse is not determinative. Girma v. INS, 283 F.3d 664, 668 (5th Cir. 2002). Rather, what is determinative is the applicant presenting evidence sufficient for one to reasonably believe that the harm suffered was motivated in meaningful part by a protected ground. Id. Ms. Sala has presented compelling evidence that she was targeted because of her trans status and far exceeded this standard. 1. This case is factually distinguishable from cases where there was a lack of nexus. The strength of Ms. Sala s asylum claim is apparent when it is contrasted to cases where the applicant failed to show sufficient evidence of nexus. In re J-B-N- is an example of a case where there were two competing motivations for the persecution. 24 I. & N. Dec. at 215. One was a personal land dispute and the other, the protected ground, was the applicant s status as an immigrant in that country. Id. The asylum applicant conceded that he had no issues with his family prior to building on the land. Id. The BIA found the balance of the evidence indicates that the respondents were targeted because of a fight over the land, not because they were born in Burundi. Id. As a result, the protected ground was incidental. Id. at 216. In Ambartsoumian v. Ashcroft, the Third Circuit denied asylum to a married couple claiming persecution because the husband was not a native Ukrainian. 388 F.3d 85, 88 (3d Cir. 2004). The court found that the record supported a finding that the applicant's troubles... stemmed not from his ethnicity but from his lack of official permission to live and work in Ukraine. Id. at 91. In addition to this lack of permission, there were a number of other reasons, including his inability to speak the language at all, that could have caused his issues. Id. 13

22 Asylum claims are often denied because the asylum applicants did not even have a vague idea as to who was attacking them and did not have any concrete evidence of nexus. In Girma v. INS, the BIA was affirmed because the applicant presented inadequate evidence of who attacked her and why. 283 F.3d at 669. Key to this holding was that the applicant offered no proof to show whether those who attacked her did so because of her political affiliation or simply to extort money from a wealthy businesswoman. Id. at 667. (emphasis added). The Fifth Circuit did not disturb the BIA s decision because a reasonable fact-finder would not be compelled to find her political affiliation played a central role in her persecution. Id. at 669. In Toure v. Holder, the applicant had repeatedly testified that she had no idea who the attackers were, what ethnic group they belonged to, or why they attacked her and her family. 624 F.3d 422, 428 (7th Cir. 2010); see also Quinteros-Mendoza v. Holder, 556 F.3d 159, (4th Cir. 2009) (affirming the BIA because the applicant provided no evidence that his religious or political beliefs were more than incidental or tangential to any part of the persecution he suffered. (emphasis added). These cases are substantially different than the case presented here. The male-gendered nature of the slurs and the TVSM exposé, create a strong link between the harm that Ms. Sala suffered and her protected characteristic. There is only one other competing motivation, Ms. Sala s profession as a sex worker, which distinguishes this case from Ambartsoumian where there were multiple other factors. However, even if there were more than one other nonprotected motivation, the male-gendered slurs create a causality link that overcomes the other alternative motivation. The existence of this link makes it distinguishable from In re J-B-Nwhere there was no link between the protected ground and the persecution. Furthermore, unlike Girma, Toure, and Quinteros-Mendoza, Ms. Sala has a firm belief of who was responsible for 14

23 the persecution and concrete evidence that supports her contention. 2. The case presented here is more similar to cases where nexus was established further demonstrating the Fourteenth Circuit s error. In cases where there is an escalating pattern of persecution, courts are more likely to find that nexus exists. For example, in Baghdasaryan v. Holder, the applicant s refusal to pay his extorter money is what sparked his persecution. 592 F.3d at The BIA concluded that this was enough to show that the motivation behind his persecution was his refusal to pay rather than his political opinion. Id. The Ninth Circuit disagreed because his refusal to pay was itself a political statement and thus protected. Id. Furthermore, after the applicant came out publicly against his extortion, his persecution intensified. Id. The Ninth Circuit determined that a reasonable fact-finder would be compelled to conclude that the applicant was mistreated, at least in part, because of his whistleblowing activity. Id. at 1025; see also Fedunyak v. Gonzales, 477 F.3d 1126, 1130 (9th Cir. 2007) ( Fedunyak s testimony that he was harassed, threatened, and assaulted for raising complaints about the extortion scheme adequately establishes that the persecution was at least in part a response to this political opinion. ). Similar to Baghdasaryan and Fedunyak, after Ms. Sala was revealed to be the only trans woman in her town, while discussing her profession as a sex worker generally, the persecution intensified. In addition, it is improper to consider what initially motivated the persecution as determinative of the nexus issue. In Cordova v. Holder, the BIA relied on the fact that the applicant was first targeted because of gang recruitment to show that he was not targeted based on a protected ground. 759 F.3d 332, 339 (4th Cir. 2014). The Fourth Circuit reversed because the last two incidents, where the attackers specifically mentioned his family s ties to rival gangs, demonstrated that the acts were more than general incidents of gang violence. Id. at Aldana-Ramos v. Holder provides an additional example of similar reasoning. 757 F.3d 9, 18 15

24 (1st Cir. 2014). The BIA asserted that because the initial motivation was wealth, the further persecutory acts were also on account of wealth. Id. The First Circuit rightfully noted even though the applicants were first targeted because of wealth, it did not mean this was the only motive. Id. Here, even if the first incident occurred because Ms. Sala was a sex worker, that in itself does not determine that her profession was the motivation for the later incidents. The existence of a non-protected motive also has no bearing on the nexus analysis. In Aldana-Ramos the First Circuit relied on the judicial principle that multiple motivations can exist, and that the presence of a non-protected motivation does not render an applicant ineligible for refugee status. 757 F.3d at (citing 8 U.S.C. 1158(b)(1)(B)(i)); see also Mengstu v. Holder, 560 F.3d 1055, 1059 (9th Cir. 2009) (holding the IJ s finding that no nexus to a protected ground existed because a civil war was raging was not enough to negate the existence of the protected ground s impact on the persecution); Del Carmen Molina v. INS, 170 F.3d 1247, 1250 (9th Cir. 1999) (noting [w]hile the guerrillas threats may have been motivated in part by an interest in recruiting her, this does not defeat Molina s asylum claim. ); see also Tarubac v. INS, 182 F.3d 1114, 1118 (9th Cir. 1999) (reversing the BIA for treating the presence of a nonpolitical motive as evidence of the absence of a political motive ). Even if the attacks on Ms. Sala were based in part on her profession, that does not automatically negate the possibility that her status as a trans woman was also a central reason. The use of slurs is especially compelling evidence that the assailants were motivated because of the applicant s protected status. In Sinha v. Holder, ethnic Indo-Fijians were targets of widespread violence and were able to establish a nexus existed. 564 F.3d 1015, (9th Cir. 2009). The Ninth Circuit determined that the applicant s testimony established that a racial motive existed simply because ethnic Fijians committed the five attacks. Id. The Ninth Circuit 16

25 accepted this as some circumstantial evidence of the motivation behind the attack. Id. (citing Elias-Zacarias, 502 U.S. at 483). The Ninth Circuit noted that there is precedent that the use of ethnic slurs in the course of an attack amply establishes the connection between the acts of persecution and [the applicant s] ethnicity. Id. (quoting Baballah v. Ashcroft, 367 F.3d 1067, 1077 (9th Cir. 2003); see, e.g., Smolniakova v. Gonzales, 422 F.3d 1037, 1049 (9th Cir. 2005) (reversing the IJ s finding that the applicant s religion did not motivate the attack despite the utterance of religious slurs); Mihalev v. Ashcroft, 388 F.3d 722, 727 (9th Cir. 2004) (the police comments that gypsies did not deserve to live were enough to create a nexus between their arrests and a protected ground). These statements demonstrate the importance of slurs in indicating discriminatory motivation. However, there is also judicial recognition that slurs are not enough in certain circumstances. In Parussimova, the ethnic slur was not sufficient to draw a connection of causality between a protected ground and what happened to the applicant in that case. 555 F.3d at 742. In Ming Ming Wijono v. Gonzales, the individuals who robbed the asylum applicant s house shouted slurs at him while carrying out the robbery. 439 F.3d 868, (8th Cir. 2006). The Eighth Circuit found that although some of the attackers made anti-chinese statements, this alone is insufficient to establish a nexus between the attacks and a protected ground. Id. at 873. In a similar factual situation, the Third Circuit also confirmed the BIA s decision that the slur used during the robbery in that case was insufficient. Lie v. Ashcroft, 396 F.3d 530, 535 (3d Cir. 2005). In Lie, however, there were far more alternative reasons for the robbery and a lack of widespread targeting than existed in the case presented here. Id. at 535 (noting the individuals were wealthy and none of their neighbors of similar ethnicity were targeted). Another distinguishing factor is that in Lie the applicant was able to live peacefully for almost two years 17

26 after the incidents. Id. For Ms. Sala there were far more than just slurs involved in each incident: a tear gas explosive device was thrown at her, her home was vandalized with threats of violence, and she was brutally attacked. The resurgence of ACCE along with the short period of time in which these events took place indicates a widespread culture of hate in San Martino. The Fourteenth Circuit also failed to take into account the entire social context of the incidents. The BIA made a similar mistake in Ivanov v. Holder, 736 F.3d at 14. The IJ in that case determined the nexus between the applicant s religion and his persecution was the negative impact that his religious drug treatment center had on the skinhead s drug sales. Id. The First Circuit determined that the IJ s fixation on the skinhead s drug trade to the exclusion of any other motivation is misguided on principle and on fact. Id. The principle the IJ violated in focusing on the drug profit motivation is that we do not require an alien to show that an impermissible motivation was the sole motivation for his persecution. Id. (citing Sompotan, 533 F.3d at 69). The focus on the skinhead s desire for profit ignored their core set of beliefs including their hostility towards the applicants faith. Id. at 15. The First Circuit emphasized that though the skinheads may have had an additional motive for attacking [that] cannot reasonably be read to refute that they were also acting upon the central motive underlying their group identity. Id. ACCE is against both sex workers and trans individuals and the persecution against Ms. Sala could be due to both of their core beliefs. The Fourteenth Circuit cannot point to anything in the record that shows Ms. Sala s status as a trans woman was not a motive for her persecution. Overall, a nexus exists between all three incidents of persecution and Ms. Sala s status. Ms. Sala was determined to be credible, testified that she believed her attackers were from ACCE and that she was attacked because of her transgender status. Contrary to what the 18

27 Fourteenth Circuit asserts, since moving to that town Ms. Sala had not been vocal about her transgender identity. She recognized that the rural town was more hostile and relied on her ability to pass as a cisgender female. During the first incident, while she was with a group of sex workers and leaving an area known for this type of activity, the person who threw the tear-gas canister used a male-gendered slur. There was no other reason to use a male-gendered slur as she was with a group of women. Ms. Sala noted that what stood out to her was the malegendered nature of the slurs because she was not open about her transgender status. The use of this slur indicates whoever threw the canister had at least a suspicion that Ms. Sala was a trans woman. The fact that sex workers in San Martino are predominantly trans women supports this suspicion. Even though it may be possible that Ms. Sala s profession as a sex worker sparked the first attack, that does not preclude the possibility that her status as a trans woman was an equal motivation for that attack. The evidence that she was attacked because of her trans status becomes even more compelling for the later two incidents. Rather than the persecutor acting on the suspicion of Ms. Sala being transgender, there was concrete proof that she was. These two incidents occurred after Ms. Sala appeared on TV and was revealed to be the only transgender woman in the town. One week after, her house was vandalized with male-gendered words. Despite the fact that she shared this house with a number of other sex workers, the male-gendered slur appearing on the one house where the only transgender female lives, is more than a mere tangential coincidence. The last incident was the most serious and presents the most destructive form of persecution: physical harm. This incident occurred a month after the TVSM exposé ran. The man who attacked Ms. Sala bore a Celtic cross tattoo, was of Western European appearance, and yelled male-gendered slurs. When taken together these characteristics point towards ACCE 19

28 involvement. If the individual was targeting sex workers in general, he could have attacked any of the other sex workers. The fact that he chose Ms. Sala, the only trans woman, is more than a mere coincidence. Ms. Sala believes that ACCE was persecuting her and that group has a long history of targeting all trans individuals in San Martino establishing a widespread pattern of persecution. The acts against Ms. Sala were repetitive and occurred over a relatively short amount of time. The persecution also escalated dramatically after it was revealed she was the only trans woman in the town. The Fourteenth Circuit made the fatal mistake of deciding that because another, nonprotected ground existed, the protected one was subordinate. The emphasis that the Fourteenth Circuit places on Ms. Sala s profession blinds them to the fact that she was targeted because of her status as a trans woman. The Fourteenth Circuit and the BIA committed the same error as the one in Ivanov v. Holder, 736 F.3d at 15. Not only is this ignorance factually inaccurate, it misconstrues the Real ID burden. Id. at 15. All Ms. Sala is required to do is show that her trans status played a central role in her persecution. The male gendered-slurs provides the thread that weaves each of these incidents together and demonstrates that her persecution was on the basis of Ms. Sala s trans status. II. THE FOURTEENTH CIRCUIT ERRED IN FINDING THAT SAN MARTINO WAS WILLING AND ABLE TO PROTECT MS. SALA AND IN FINDING THAT SHE COULD SAFELY AND REASONABLY RELOCATE WITHIN THE COUNTRY. The parties already stipulated that the cumulative effect of the harm from the three incidents targeting Ms. Sala were sufficiently severe to constitute persecution. Ms. Sala has already met her burden under the Real ID Act, in establishing nexus between the persecution and her protected status. However, the Fourteenth Circuit held that Ms. Sala did not prove that the San Martino government was unwilling or unable to protect her. It further held that even if she 20

29 met this burden, Ms. Sala still could have safely and reasonably relocated within San Martino. In making this decision the Fourteenth Circuit relied on unsound information, undervalued Ms. Sala s testimony, and mistakenly attributed Ms. Sala s failure to contact law enforcement as evidence that the San Martino government was willing and able to protect her. These determinations are reviewed under the substantial evidence standard. Bi Xia Qu, 618 F.3d at 608. A. The Fourteenth Circuit Has Underestimated the Threat That ACCE Poses to Ms. Sala and Wrongfully Held That the San Martino Government is Willing and Able to Protect Her. Ms. Sala was persecuted in San Martino by ACCE on account of a protected characteristic according to the Immigration and Nationality Act. 8 U.S.C. 1101(a)(42)(A). In order to qualify for asylum, Ms. Sala must prove that the San Martino government is unwilling or unable to control ACCE. See Avetovo-Elisseva v. INS, 213 F.3d 1192, 1196 (9th Cir. 2000). This determination of whether the San Martino government is willing or able to control ACCE is a factual question that must be resolved based on the record in each case. Crespin-Valladares v. Holder 632 F.3d 117, 128 (4th Cir. 2011) (quoting Menjivar v. Gonzales, 416 F.3d 918, 921 (8th Cir.2005)). 1. Substantial evidence supports Ms. Sala s credible assertion that ACCE was responsible for the incidents. Ms. Sala herself provides the best insight into the true circumstances that a trans individual faces in San Martino. The Fourteenth Circuit seems to ignore much of Ms. Sala s testimony and downplays its significance. The IJ found Ms. Sala to be a credible witness, so her testimony should be weighted more heavily. Where the IJ gives credit to an applicant, and the statements in the application and testimony are consistent, we are to take the statements as true. Silva v. U.S. Att y Gen., 448 F.3d 1229, 1244 (11th Cir. 2006) (Carnes, CJ dissenting) (citing 21

30 Vasquez-Mondragon v. INS, 560 F.2d 1225, 1226 (5th Cir. 1977)). Ms. Sala testified that she believed ACCE was behind all three of the incidents and the facts surrounding these incidents strongly support her belief. All three of the persecutory acts against Ms. Sala occurred in the summer of The first and second incidents both involved the use of slurs directed towards Ms. Sala and her female roommates. However, the slurs included some male-gendered words, which gives cause to believe that the perpetrators knew or suspected that Ms. Sala was transgender. This is especially likely for the second incident because Ms. Sala s interview during the TVSM exposé on sex workers had recently aired. During the exposé, she spoke openly of her transgender status and it was noted that she was the only trans woman in her town. Although we cannot be completely certain that ACCE perpetuated the incidents, this seems to be extremely likely. Ms. Sala testified that she believes ACCE activity is beginning to escalate following five years of retreat. ACCE holds anti-trans sentiment as a core tenet and its members have a history of using violence towards both sex workers and transgendered individuals. Additionally, ACCE is a white nationalist group and Ms. Sala described the man who threw the tear gas explosive as looking Western European. The third incident occurred when a man, who appeared to be Western European, physically attacked Ms. Sala. Her attacker had a Celtic cross tattoo on his arm, which is universally known as a symbol white supremacists favor. Moreover, the attacker yelled out male-gendered slurs that were similar to those used in the previous incidents. Since the man did not identify himself as being from ACCE, it is possible that the organization is not responsible for the assault on Ms. Sala or any of the other incidents. However, we must consider the facts: ACCE holds anti-trans sentiment as a core tenet, ACCE members disproportionally murdered 22