SUPREME COURT OF THE UNITED STATES

No. 2017-0101 IN THE SUPREME COURT OF THE UNITED STATES VIVIANE SALA, Petitioner, v. UNITED STATES OF AMERICA, Respondent. ON WRIT OF CERTIORARI TO THE SUPREME COURT OF THE UNITED STATES COURT OF APPEALS FOR THE FOURTEENTH CIRCUIT BRIEF OF PETITIONERS TEAM 20 U.C. Davis School of Law Moot Court Honors Board 400 Mrak Hall Drive Davis, CA 95616 Counsel for Petitioner

QUESTIONS PRESENTED 1. Whether the record compels a finding that a nexus exists between Ms. Sala s past persecution and her status as a transgender woman; 2. Whether the record compels a finding that the San Martino government was unwilling or unable to protect Ms. Sala; and 3. Assuming that Ms. Sala has established past persecution, whether the record compels a finding that relocation within San Martino is unreasonable. i

PARTIES TO THE PROCEEDINGS BELOW Petitioner is Ms. Viviane Sala. She was the applicant for asylum before the Immigration Judge ( IJ ), the respondent before the Board of Immigration Appeals ( BIA ) and the appellant before the United States Court of Appeals for the Fourteenth Circuit. Respondent is the United States of America. The Department of Homeland Security ( DHS ) represented the government before the IJ. The United States Attorney General was the appellee in the Court of Appeals. ii

TABLE OF CONTENTS QUESTIONS PRESENTED...i PARTIES TO THE PROCEEDINGS BELOW.ii TABLE OF CONTENTS..iii TABLE OF AUTHORITIES.iv OPINIONS BELOW..vi JURISDICTION vi STATUTES AND REGULATIONS INVOLVED...vi STATEMENT OF THE CASE...1 I. Procedural History..1 II. III. Country Conditions.1 Factual Background 3 SUMMARY OF ARGUMENT..4 ARGUMENT..5 I. A Reasonable Adjudicator Would Be Compelled to Conclude that Ms. Sala Suffered Past Persecution on Account of Her Status as a Transgender Woman 7 A. The record compels a finding that Ms. Sala established a nexus between the attacks against her and her status as a transgender woman...7 B. The record compels a finding that the San Martino government was unable or unwilling to protect Ms. Sala....13 II. A Reasonable Adjudicator Would Be Compelled to Conclude that Ms. Sala Cannot Reasonably Relocate Within San Martino...16 CONCLUSION.22 iii

TABLE OF AUTHORITIES CASES Abebe v. Gonzales, 432 F.3d 1037 (9th Cir. 2005) (en banc)..6 Afriyie v. Holder, 613 F.3d 924 (9th Cir. 2010) passim Arboleda v. U.S. Att y. Gen., 434 F.3d 1220 (11th Cir. 2006)..17, 18, 20 Avetova-Elisseva v. INS, 213 F.3d 1192 (9th Cir. 2000)...13 Bace v. Ashcroft, 352 F.3d 1133 (7th Cir. 2003).9, 12, 13 Baghdasaryan v. Holder, 592 F.3d 1018 (9th Cir. 2010)..passim Boer-Sedano v. Gonzales, 418 F.3d 1082 (9th Cir. 2005)...11, 14 Cardenas v. INS, 294 F.3d 1062 (9th Cir. 2002).17, 18, 19, 21 Castro v. Holder, 597 F.3d 93 (2d Cir. 2010).6 Castro-Martinez v. Holder, 674 F.3d 1073 (9th Cir. 2011)...14 Castro-Perez v. Gonzales, 409 F.3d 1069 (9th Cir. 2005)..14, 15 Chand v. INS, 222 F.3d 1066 (9th Cir. 2000)...18 Dallakoti v. Holder, 619 F.3d 1264 (10th Cir. 2010)..8 Deloso v. Ascroft, 393 F.3d 858 (9th Cir. 2004)....9, 12 In re J-B-N- & S-M-, 24 I&N Dec. 208 (BIA 2007)...8, 9 INS v. Elias-Zacarias, 502 U.S. 478 (1992) 6, 9 Kaiser v. Ashcroft, 390 F.3d 653 (9th Cir. 2004) 19, 21 Knezevic v. Ashcroft, 367 F.3d 1206 (9th Cir. 2004). 13 Mendoza v. U.S. Att y. Gen., 327 F.3d 1283 (11th Cir. 2003).6 Mgoian v. INS, 184 F.3d 1029 (9th Cir. 1999)..13 Ndayshimiye v. U.S. Att y. Gen., 557 F.3d 124 (3d Cir. 2009) 7, 8 iv

Ornelas-Chavez v. Gonzales, 458 F.3d 1052 (9th Cir. 2006)...13, 14, 15 Oryakhil v. Mukasey, 528 F.3d 993 (7th Cir. 2008)..17 Parussimova v. Mukasey, 555 F.3d 734 (9th Cir. 2008)...passim Rahimzadeh v. Holder, 613 F.3d 916 (9th Cir. 2010)..13, 14 Rodriguez-Matamoros v. INS, 86 F.3d 158 (9th Cir. 1996)..16 Sharma v. Holder, 729 F.3d 407 (5th Cir. 2013). 8 Singh v. Holder, 764 F.3d 1153 (9th Cir. 2014) 10 Singh v. Mukasey, 543 F.3d 1 (1st Cir. 2008)..8 Sinha v. Holder, 564 F.3d 1015 (9th Cir. 2009)..6 Zhao v. Mukasey, 540 F.3d 1027, 1029 (9th Cir. 2008)..6 STATUTES AND REGULATIONS 8 U.S.C. 1101(a)(42)(A) (2012)... 6, 7, 10 8 U.S.C. 1158(b)(1) (2012)...5 8 U.S.C. 1158(b)(1)(B)(i) (2012)... 8, 10 8 U.S.C. 1252(b)(4)(B) (2012) 6 8 C.F.R. 3.1(a)(7) (2012)..6 8 C.F.R. 1208.13(b) (2012)...6 8 C.F.R. 1208.13(b)(1)(i)(B) (2012)...17 v

OPINIONS BELOW The Fourteenth Circuit s opinion (R. at 4-23) is unreported. The IJ s opinion and the BIA s decision to summarily affirm the IJ are unreported. JURISDICTION 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. STATUTES AND REGULATIONS INVOLVED The Secretary of Homeland Security or the Attorney General may grant asylum to an alien who has applied for asylum in accordance with the requirements and procedures established by the Secretary of Homeland Security or the Attorney General under this section if the Secretary of Homeland Security or the Attorney General determines that such alien is a refugee within the meaning of section 1101(a)(42)(A) of this title. 8 U.S.C. 1158(b)(1)(A) (2012). The term refugee means... any person who is outside any country of such person s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that 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) (2012). To establish that the applicant is a refugee within the meaning of [section 1101(a)(42)(A) of this title], the applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant. 8 U.S.C. 1158(b)(1)(B)(i) (2012). The applicant may qualify as a refugee either because he or she has suffered past persecution or because he or she has a well-founded fear of future persecution. 8 C.F.R. 1208.13(b) (2012). An applicant who has been found to have established such past persecution shall also be presumed to have a well-founded fear of persecution on the basis of the original claim. That presumption may be rebutted if an asylum officer or immigration judge makes one of the findings described in paragraph (b)(1)(i) of this section.... 8 C.F.R. 1208.13(b)(1) (2012). [A]n asylum officer shall, in the exercise of his or her discretion, refer or deny, or an immigration judge, in the exercise of his or her discretion, shall deny the asylum application of an alien found to be a refugee on the basis of past persecution if any of the following is found by a preponderance of the evidence:... [t]he applicant could avoid future persecution by relocating to another part of the applicant's country of nationality... and under all the circumstances, it would be reasonable to expect the applicant to do so. 8 C.F.R. 1208.13(b)(1)(i)(B) (2012). vi

STATEMENT OF THE CASE I. PROCEDURAL HISTORY Ms. Viviane Sala is a citizen of San Martino, a small nation in South America R. at 5. In early 2015, Ms. Sala fled San Martino and traveled nearly 5,000 miles to reach the United States. R. at 6. She entered the United States without inspection. Id. On February 17, 2015 the Department of Homeland Security ( DHS ) served Ms. Sala a Notice to Appear, charging her with removability. Id. Ms. Sala requested asylum, asserting that she faced persecution in San Martino because she is a transgender woman. Id. During her trial before the Immigration Judge ( IJ ), Ms. Sala was found to be a credible witness. R. at 10. Despite this determination, the IJ denied Ms. Sala s application for asylum. Id. Ms. Sala appealed the IJ s decision to the Board of Immigration Appeals ( BIA ), which summarily affirmed the IJ s opinion. Id. Ms. Sala sought review of this determination with the United States Court of Appeals for the Fourteenth Circuit. R. at 4. The Fourteenth Circuit affirmed the BIA s decision. R. at 19. This Court granted certiorari to review: (1) whether a nexus exists between Ms. Sala s persecution and a protected ground, (2) whether the San Martino government was unwilling or unable to protect Ms. Sala, and (3) whether, assuming Ms. Sala otherwise qualified for asylum, she could reasonably relocate within San Martino. R. at 2. II. COUNTRY CONDITIONS Throughout her hearing before the IJ, Ms. Sala testified about the current country conditions in San Martino and offered a series of news articles. R. at 5-9. The United States State Department s 2013 Report on San Martino was also presented to the IJ. R. at 5-6. The evidence showed that although San Martino has generally been a progressive nation, the country has recently faced a conservative uprising. R. at 5. In the early 2000s, a white supremacy, Christian 1

identity group known as Alianza de Colonos Christianos Europeos ( ACCE ) quickly took root in San Martino. Id. ACCE believes that white culture is under assault, and that multiculturalism is akin to genocide of the white race. R. at 5. In accordance with this belief, ACCE is vehemently against transgender individuals. R. at 9. Its attacks specifically target transgender women. Id. The group has assumed responsible for the murders of many transgender individuals. R. at 6. The number of transgender women who have been murdered by ACCE is disproportionately high when compared to the number of transgender individuals in San Martino. R. at 9. In response to ACCE, the San Martino government passed anti-hate crime legislation in 2008. After this legislation passed, the number of attacks decreased. Id. During its peak years, ACCE presence was strong throughout both of the two major cities in San Martino, Juarez and Paraisa, as well as in the rural areas. Id. at 6. In the years immediately following the anti-hate crime legislation, ACCE s strength decreased in the two major cities, but still remained strong in the rural areas of San Martino. R. at 18. Although ACCE maintained a presence in Juarez, the second largest city in San Martino, by 2013, there was no evidence of its presence in Paraisa, the country s capital and largest city. R. at 18. The 2013 San Martino Report estimates ACCE membership at somewhere between 5,000 and 35,000 individuals. R. at 5. However, given ACCE s cellular nature, it is likely that that number is currently inaccurate. R. at 21. Since 2013, there appears to have been a peak in ACCE presence throughout San Martino. R. at 6. This shift may be a response to a more conservative San Martino government. Id. Many reputable U.S.-based media outlets have discussed a possible spike in nationwide ACCE presence in recent years. Id. 2

III. FACTUAL BACKGROUND Ms. Sala has identified as a female her entire life, despite being born biologically a male. R. at 7. In 2009, when Ms. Sala was still a minor, her family moved from Paraisa, the capital and largest city, to the rural and conservative San Martino countryside. Id. In the countryside, Ms. Sala chose to publicly pass as a cis-gender woman, rather than explain her transgender identity to others. Id. In 2012, after finishing secondary school, Ms. Sala moved to another small rural village and took up work as a sex worker. Id. In the summer of 2014, Ms. Sala experienced a series of attacks that caused her to fear living in San Martino. R. at 7. In early June 2014, as Ms. Sala was walking with other sex workers to the home they shared, she was attacked by a man in a moving vehicle. Id. The man threw a tear gas explosive at the group and yelled several derogatory slurs. Id. To an observer, all the members of the group would have appeared female. Id. However, the attacker chose to use some male-gendered slurs. R. at 8. Notably, Ms. Sala is the only transgender woman in the small town she lived in. Id. Ms. Sala s attacker was a middle aged, Western European man. R. at 7. No one in the group ever reported the attack because the group believed that the police would not be able to catch the attacker. R. at 8. A week after the first attack, Ms. Sala was featured in a documentary exposé run by the national public media organization, Televisión San Martino ( TVSM ). Id. This exposé discussed the resurgence of ACCE and profiled various sex workers throughout San Martino. Id. In the documentary, Ms. Sala spoke out about being a transgender woman. Id. The documentary aired nationwide to an extremely high number of viewers. Id. Less than a week after the documentary aired, Ms. Sala s home was vandalized. Id. The vandals spray painted her home with violent threats and derogatory slurs. R. at 8. Again, the attackers used male-gendered words. 3

Id. Ms. Sala did not report this incident because she feared that reporting the attack might further agitate the vandals. Id. Within a month after the vandalism, Ms. Sala was brutally attacked while she was working. Id. A man Ms. Sala assumed to be a customer physically attacked her while the two of them were alone. Id. Although this attacker was not the same man who carried out the first attack, he was also white and ethnically Western European. R. at 9. He had a Celtic cross tattoo on his forearm, a symbol that is ubiquitously known as... [being] favored by white supremacists. R. at 9, 21. As a result of the attack, Ms. Sala suffered severe physical and emotional injuries. R. at 8-9. She became afraid that she would be attacked again, and worried that the violence would be even worse the next time. R. at 9. Because of her fears and concerns about retaliation, Ms. Sala did not report the attack to the police. Id. Ms. Sala fears that if she returns to San Martino, ACCE members will attack her. Id. She does not feel that she would be safe anywhere in the country. Id. SUMMARY OF ARGUMENT The record compels the conclusion that Ms. Sala suffered past persecution because: (1) Ms. Sala was persecuted on account of her status as a transgender woman, (2) the San Martino government was unwilling or unable to protect Ms. Sala, and (3) relocation within San Martino is unreasonable. The BIA s conclusion to the contrary is not supported by substantial evidence and this Court must reverse the Court of Appeal s judgement affirming the BIA. First, a reasonable factfinder would be compelled to conclude that Ms. Sala established a nexus between the three attacks against her and her status as a transgender woman. Ms. Sala demonstrated, through her credible testimony, that her transgender identity was at least one central reason for her persecution. All three of the attackers directed male-gendered slurs at Ms. 4

Sala during the persecutory acts, indicating that they targeted her because she was a transgender individual. Furthermore, within one month following Ms. Sala s widely-broadcast interview on TVSM, where she revealed that she was the only transgender woman living in her small, rural town, and she suffered two attacks. This proximity in time between the interview and the violent acts shows that Ms. Sala was persecuted because she is a transgender woman. Second, the record compels a finding that the San Martino government was unwilling or unable to protect Ms. Sala from her persecutors. Ms. Sala s credible testimony demonstrated that she did not report the attacks to the police because she reasonably feared that her attackers would retaliate against her. Additionally, other individuals in her circle believed that reporting the attacks would be futile. Because of these two factors, it is evident that the San Martino government could or would not be able to protect Ms. Sala from harm. And finally, third, assuming that this Court finds that Ms. Sala has established past persecution which it should substantial evidence shows that she would not be able to relocate anywhere within San Martino. This is because the government failed to establish that ACCE did not currently maintain a nationwide presence in San Martino. Furthermore, given the unique nature of Ms. Sala s claim and the fact that she came out as transgender in the nationwide TVSM interview, she would not be safe anywhere in San Martino, as she now has a direct target on her back for ACCE persecution. ARGUMENT To be granted asylum, an applicant must establish that she is a refugee within the meaning of the Immigration and Nationality Act ( INA ). 8 U.S.C. 1158(b)(1) (2012); see also Baghdasaryan v. Holder, 592 F.3d 1018, 1022-23 (9th Cir. 2010). Under the INA, a refugee is a person who has been persecuted or has a well-founded fear of persecution on account of a 5

protected ground. 8 U.S.C. 1101(a)(42)(A) (2012); see also INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). The five protected grounds are race, religion, nationality, membership in a particular social group, and political opinion. 8 U.S.C. 1101(a)(42)(A). An applicant qualifies as a refugee and is eligible for asylum if she establishes either past persecution or a well-founded fear of future persecution. 8 C.F.R. 1208.13(b) (2012); see also Baghdasaryan, 592 F.3d at 1023. This Court reviews the lower court s asylum determination under the substantial evidence standard. See Sinha v. Holder, 564 F.3d 1015, 1020 (9th Cir. 2009). An asylum determination can only be upheld if the decision is supported by reasonable, substantial, and probative evidence on the record considered as a whole. Zhao v. Mukasey, 540 F.3d 1027, 1029 (9th Cir. 2008) (quoting Abebe v. Gonzales, 432 F.3d 1037, 1039-40 (9th Cir. 2005) (en banc)). This standard requires a minimum level of analysis from the IJ and the BIA, as well as some indication that the IJ considered material evidence supporting a petitioner s claim. Castro v. Holder, 597 F.3d 93, 99 (2d Cir. 2010) (internal quotation marks omitted). This Court must reverse a denial of asylum if it determines that the record compels a reasonable factfinder to conclude that the decision is incorrect. Zhao, 540 F.3d at 1029; see also 8 U.S.C. 1252(b)(4)(B) (2012) ( [A]dministrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary. ). Because the BIA summarily affirmed the determinations of the IJ, the IJ s decision becomes the agency s final removal order, which this Court shall review. 8 C.F.R. 3.1(a)(7) (2012); see also Mendoza v. U.S. Att y. Gen., 327 F.3d 1283, 1284 n.1 (11th Cir. 2003). The IJ found that Ms. Sala s testimony was credible. R. at 10. Accordingly, this Court must accept Ms. Sala s testimony as true. See Baghdasaryan, 592 F.3d at 1020. 6

Here, the record compels a conclusion that: (1) Ms. Sala was persecuted on account of her status as a transgender woman, which is a protected ground, (2) the San Martino government was unwilling or unable to protect Ms. Sala, and (3) relocation within San Martino is unreasonable. Thus, the BIA s determinations should have been reversed and this Court must reverse the Court of Appeals judgment to the contrary I. A REASONABLE ADJUDICATOR WOULD BE COMPELLED TO CONCLUDE THAT MS. SALA SUFFERED PAST PERSECUTION ON ACCOUNT OF HER STATUS AS A TRANSGENDER WOMAN. Ms. Sala suffered past persecution on account of her status as a transgender woman. To establish past persecution, an applicant must demonstrate that (1) she suffered harms that rise to the level of persecution; (2) she was persecuted on account of one or more protected grounds; and (3) she was persecuted by the government, or by an entity that the government was unable or unwilling to control. Baghdasaryan, 592 F.3d at 1023. Ms. Sala satisfies the first element because Respondent agrees that Ms. Sala suffered harms that are sufficiently severe to constitute persecution. See R. at 10. Regarding the second and third elements, the BIA erroneously affirmed the findings of the IJ that: (1) Ms. Sala did not establish a nexus between the attacks against her and her protected status as a transgender woman, and (2) the San Martino government was able and willing to protect Ms. Sala from persecution. See R. at 10. A. The Record Compels a Finding That Ms. Sala Established a Nexus Between the Attacks Against Her and Her Status as a Transgender Woman. To show that she was persecuted on account of one or more protected grounds under 8 U.S.C. 1101(a)(42)(A), an asylum applicant must show a nexus between her persecution and one of the five protected grounds. See Ndayshimiye v. U.S. Att y. Gen., 557 F.3d 124, 128-29 (3d Cir. 2009). This requires an inquiry into the persecutors motives. Parussimova v. Mukasey, 555 F.3d 734, 739 (9th Cir. 2008). In many cases, the record may indicate that persecutors had more 7

than one motive for harming the applicant. See, e.g., Singh v. Mukasey, 543 F.3d 1, 4 (1st Cir. 2008) (petitioner alleged that he was attacked based on his political opinion and membership in a family); Parussimova, 555 F.3d at 741 (finding that petitioner s assailants attacked her because of her ethnicity, association with an American company, and vulnerability to a sexual assault). In such mixed-motive cases, the REAL ID Act of 2005 requires the applicant to establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant. 8 U.S.C. 1158(b)(1)(B)(i) (2012) (emphasis added). A protected ground need not be the persecutors only motive. Sharma v. Holder, 729 F.3d 407, 411 (5th Cir. 2013). Rather, the applicant must show that a protected ground was at least one central reason for her persecution. 8 U.S.C. 1158(b)(1)(B)(i). The BIA has interpreted the one central reason standard to mean that the protected ground cannot be incidental, tangential, superficial, or subordinate to another reason for harm. In re J-B-N- & S-M-, 24 I&N Dec. 208, 214 (BIA 2007); see also Dallakoti v. Holder, 619 F.3d 1264, 1268 (10th Cir. 2010). While several circuits have accepted this interpretation without objection, see Dallakoti, 619 F.3d at 1268, the Third Circuit found that it is in error to the extent that it requires an applicant to show that a protected ground was not subordinate to another reason for the persecution. Ndayshimiye, 557 F.3d at 129 ( [P]lain language indicates that a persecutor may have more than one central motivation... whether one of those central reasons is more or less important than another is irrelevant. ). Cf. Parussimova, 555 F.3d at 740 ( [A]n applicant need not prove that a protected ground was the most important reason why the persecution occurred. ). The Ninth Circuit further elaborated that: 8

[A] motive is a central reason if the persecutor would not have harmed the applicant if such motive did not exist. Likewise, a motive is a central reason if that motive, standing alone, would have led the persecutor to harm the applicant.... [P]ersecution may be caused by more than one central reason, and an asylum applicant need not prove which reason was dominant. Parussimova, 555 F.3d at 741. In proving that a protected ground was at least one central reason for her persecution, an applicant need not provide direct proof of her persecutors motives. See Elias-Zacarias, 502 U.S. at 483. In many cases, persecutors are unlikely to submit declarations explaining exactly what motivated them to act, and the REAL ID Act does not require such an unequivocal showing. Parussimova, 555 F.3d at 742. Nor is the applicant required to bear the unreasonable burden of establishing the exact motivation of a persecutor. In re J-B-N- & S-M-, 24 I&N Dec. at 211. The applicant is only required to provide some evidence of [her persecutors motives], direct or circumstantial. Elias-Zacarias, 502 U.S. at 483. Timing of the persecution may establish circumstantial evidence of the persecutors motive. See Deloso v. Ascroft, 393 F.3d 858, 865-66 (9th Cir. 2004) (holding that close proximity in time of petitioner s political activities and the attacks constituted circumstantial evidence of nexus between the persecution and a protected ground). Furthermore, circumstantial evidence may sufficiently satisfy the nexus requirement, even when the applicant cannot identify her persecutor precisely. See Bace v. Ashcroft, 352 F.3d 1133, 1138-39 (7th Cir. 2003). For example, in Bace, the court held that the petitioner showed that he was persecuted on account of his political opinion even though he could not establish the identity of his attackers. See id. The proximity in time between the petitioner s political activity and his persecution, as well as his attackers comments, suggested that the attackers were likely members of the opposing political 9

party, and constituted ample evidence of past persecution on account of political opinion. See id. at 1139. Here, a reasonable factfinder would be compelled to conclude that Ms. Sala established a nexus between the three attacks against her and her status as a transgender woman. Status as a transgender person qualifies as membership in a particular social group, which is a protected ground under 8 U.S.C. 1101(a)(42)(A). See R. at 13. Substantial evidence does not support the findings of the IJ and the Court of Appeals that Ms. Sala s occupation as a sex worker was the central reason for the persecution and that her status as a transgender woman was incidental. See id. The REAL ID Act only requires the applicant to show that a protected ground was at least one central reason for the persecution. 8 U.S.C. 1158(b)(1)(B)(i). In a mixed-motive case such as this one, where persecution may have been caused by more than one central reason, an applicant is not required to prove which reason was dominant. See Parussimova, 555 F.3d at 741. Thus, Ms. Sala can satisfy the nexus requirement even if her attackers targeted her because of her status as a transgender woman and her occupation as a sex worker. Notably, the record shows that Ms. Sala has demonstrated, through credible testimony, that her status as a transgender woman was at least one central reason for the attacks against her. Because the IJ found that Ms. Sala s testimony was credible and the BIA agreed, this Court must treat the facts to which she testified as true. See Singh v. Holder, 764 F.3d 1153, 1159 (9th Cir. 2014). Furthermore, credible testimony by the applicant may sustain her burden. See Baghdasaryan, 592 F.3d at 1026 (holding that petitioner s testimony compels the conclusion that he was persecuted due to his political opinion). Here, Ms. Sala testified that during all three of the persecutory acts, her attacker used male-gendered slurs, showing that her status as a transgender woman was at least one central 10

motive for the attacks. See. R. at 7-9. During the first incident, a man threw an improvised tear gas explosive at Ms. Sala and her companions from a moving vehicle, and yelled male-gendered slurs as he drove by. R. at 7-8. During the second incident, unidentified individual(s) spray painted graffiti on Ms. Sala s home consisting of similar male-gendered slurs and threats of violence. R. at 8. Finally, during the third incident, a man physically attacked Ms. Sala and yelled similar male-gendered slurs at her. R. at 8-9. The persecutor s words during the attacks can show that he was motivated by the applicant s possession of a protected characteristic. See Boer-Sedano v. Gonzales, 418 F.3d 1082, 1089 (9th Cir. 2005) ( [T]he officer s words during the assaults make clear that he was motivated by [the petitioner s] sexuality. ). In this case, Ms. Sala s attackers consistently used male-gendered slurs during the persecutory acts, even though during the first incident, Ms. Sala was with a group of female sex workers, and during the second incident, the vandalism was on a house that Ms. Sala shared with female sex workers. See R. at 7-9. This demonstrates that the derogatory slurs were directed at Ms. Sala because as a transgender person, she was the only person to which the male-gendered words could apply. The Court of Appeals ignored this evidence that during every attack, the assailants used male-gendered slurs, suggesting that the attacks were motivated by Ms. Sala s gender identity. See R. at 20. A reasonable adjudicator, properly considering the entirety of Ms. Sala s credible testimony, would be compelled to conclude that Ms. Sala s status as a transgender woman was at least one central reason for her persecution. In addition, the proximity in time between Ms. Sala s interview on TVSM discussing her transgender identity and the second and third attacks show that her persecutors were motivated by Ms. Sala s status as a transgender woman. During the TVSM interview, which was a part of 11

an exposé, Ms. Sala spoke openly about her transgender identity and revealed that she was the only transgender woman living in her small, rural town. See R. at 7-8. When the exposé aired, audiences tuned in en masse. R. at 8. Only a week after the interview was broadcasted, unidentified individual(s) vandalized Ms. Sala s home with derogatory, male-gendered slurs. See R. at 8. That same month, a man brutally attacked Ms. Sala and called her male-gendered slurs, leaving her seriously injured. R. at 8-9. Where, as here, the attacks occurred soon after the applicant s activities involving a protected ground, the proximity in time is evidence of past persecution on account of a protected ground. See Deloso, 393 F.3d at 865-66 (finding that persecutors were motivated by petitioner s political opinion because, inter alia, they delivered a death threat within a month of a political party member s assassination). Here, Ms. Sala suffered two attacks within a month of discussing her transgender identity on a widely-watched television exposé. See R. at 8. Ms. Sala became an easy target because she revealed that she was the only transgender woman in her small, rural town. See R. at 7-8. Both of her attackers directed male-gendered slurs at Ms. Sala, indicating that they targeted her because of her transgender identity, which they likely learned from the TVSM exposé. See R. at 8-9. Thus, the proximity in time between Ms. Sala s interview and the vandalism and assault that she suffered shows that Ms. Sala s transgender status was at least one central reason for her persecution. Ms. Sala need not identify her attackers precisely to satisfy the nexus requirement. See Bace, 352 F.3d at 1138-39. In Bace, the court found that the petitioner was persecuted on account of his political opinion, even though his assailants wore masks and he could not identify them. See id. at 1136-38 ( Mr. Bace s inability to identify his attackers in this case is not critical to a determination of past persecution. ). Here, Ms. Sala saw her attackers during the first and 12

third incidents, and identified them as Western European men, one of whom had a Celtic cross tattoo on his forearm. See R. at 7-9. This lack of precise identification is not detrimental to Ms. Sala s asylum claim. In Bace, the assailants statements during the attack and the proximity in time between the petitioner s political activity and his persecution provided ample evidence of past persecution. 352 F.3d at 1138. Similarly, here, the attackers use of male-gendered slurs, as well as the proximity in time between the interview where Ms. Sala discussed her transgender identity and the attacks perpetuated against her, establish that Ms. Sala was persecuted on account of her political opinion. See R. at 7-9. For these reasons, the IJ s determination that Ms. Sala did not establish a nexus between the attacks and her status as a transgender woman is not supported by substantial evidence. Any reasonable finder of fact would be compelled to conclude that Ms. Sala s transgender identity was at least one central reason for her persecution. Accordingly, this Court must reverse the Fourteenth Circuit s judgment to the contrary. B. The Record Compels a Finding that the San Martino Government Was Unable or Unwilling to Protect Ms. Sala. To demonstrate persecution within the meaning of the INA, an applicant must show that the persecution was committed by the government or forces the government is either unable or unwilling to control. Knezevic v. Ashcroft, 367 F.3d 1206, 1211 (9th Cir. 2004). If the government is unwilling or unable to control the persecutors, no affirmative state action is necessary. See Avetova-Elisseva v. INS, 213 F.3d 1192, 1196 (9th Cir. 2000) (quoting Mgoian v. INS, 184 F.3d 1029, 1036 (9th Cir. 1999). There is no requirement that an applicant who has been harmed by non-state actors report her attacks to the authorities in order to satisfy this element. See Ornelas-Chavez v. Gonzales, 458 F.3d 1052 (9th Cir. 2006) ( [W]e have never held... that reporting private persecution is a prerequisite for relief. ). However, when an applicant 13

does not report her abuse to the police, there is a gap in proof about how the government would respond if asked, which the petitioner may attempt to fill by other methods. Rahimzadeh v. Holder, 613 F.3d 916, 922 (9th Cir. 2010). When an applicant provides proof that reporting to the police would be futile or cause her more harm, she has met her burden of showing that the government would be unwilling or unable to protect her from her persecutors. See id. Among other ways, an applicant can fill the gap in proof by providing a credible explanation for why she did not report an attack. Id.; see also Ornelas-Chavez, 458 F.3d at 1058 (finding that the respondent did not need to report an attack when he feared further harm if he reported the attack and explained this to the IJ); Boer-Sedano v. Gonzales, 418 F.3d at 1088. Courts have held that an applicant s reasonable fear regarding reporting her attack suffices to explain why she failed to do so. See id. Cf. Castro-Martinez v. Holder, 674 F.3d 1073, 1080-81 (9th Cir. 2011) (denying asylum to an individual who failed to offer a reasonable explanation as to why he did not report his attack). An applicant s fear should be based on whether the group persecuting her, will harm her, and not based on how a third party will react. Cf. Castro-Perez v. Gonzales, 409 F.3d 1069, 1072 (9th Cir. 2005) (finding that past persecution was not established when the applicant failed to report her attack because she was afraid of how her father [who was not the original persecutor]... would react. ). Another way an applicant can prove that the government either could not or would not help her is to show that others in her same circle did not report the abuse. See Rahimzadeh, 613 F.3d at 922. For instance, in Afriyie v. Holder, the Ninth Circuit determined that despite not reporting an attack, the petitioner had established that the authorities in Ghana were unwilling or unable to protect him from his persecutors. 613 F.3d 924, 932 (9th Cir. 2010). The Afriyie court relied on the fact that other individuals similarly situated to the petitioner had reported attacks to 14

no avail. Id. According to the court, this was an objective view. Id. Despite these reports, the police were unable to find the attackers and punish them. Id. As a result, individuals in the petitioner s circle believed that even if the government wanted to protect them from persecution, it was unable to do so. See id. In the case at hand, the record compels a finding that the San Martino government was unwilling or unable to protect Ms. Sala. The lower court treated the fact that Ms. Sala did not report the attacks to the police as dispositive. R. at 16-17. The court reasoned that since Ms. Sala did not report the attacks and the San Martino government had passed anti-hate legislation to combat ACCE, the government was willing and able to protect Ms. Sala from ACCE. R. at 17. This argument is misplaced and fails to account for the fact that Ms. Sala offered an explanation regarding why she did not report the attacks and that others in Ms. Sala s circle also thought reporting would be futile. R. at 8-9, 17. Ms. Sala s explanation as to why she did not report the attacks amounts to substantial evidence showing that the San Martino government was unwilling or unable to protect her. Like the petitioner in Ornelas-Chavez, in which the court granted the petitioner asylum, Ms. Sala explained to the IJ in detail why she did not report the attack. R. at 8-9. She testified that she feared reporting the crime would further agitate her attackers and cause them to retaliate against her. R. at 8-9. Unlike the petitioner in Castro-Perez who explained that she failed to report the attacks because she feared her father and not her persecutors, Ms. Sala s testified that she did not report the attacks because she feared her attackers and not a third party. R. at 8-9. The IJ determined that Ms. Sala s testimony, including her explanations about how she feared retaliation if she reported her attacks, was credible. R. at 10. However, despite this 15

determination, the lower court stated that it was unconvinced by Sala s testimony. R. at 17. The record simply does not support this determination. R. at 8-10. Additionally, Ms. Sala showed that others in her circle thought it would be futile for her to report the attack. R. at 8-9. Ms. Sala testified that besides a fear of retaliation, she also did not report her attacks because her roommates believed that it was unlikely that the police would catch the assailants. R. at 8. This indicates that others besides Ms. Sala believed that reporting to the police would do nothing and shows that it was likely that the government would be unable to protect her. Like in Afriyie, in which the court granted the petitioner asylum because although he did not report the attack, other individuals in his circle thought reporting would be futile, here as well, this Court find that San Martino could not protect Ms. Sala. In summary, the record compels a finding that the San Martino government was unwilling or unable to protect Ms. Sala from persecution. Ms. Sala has shown that she did not report the attacks because she feared retaliation from her attackers and because others in her circle believed reporting the attacks to the police would be futile. As a result, she has established that the government cannot protect her in San Martino and this Court should find accordingly. II. A REASONABLE ADJUDICATOR WOULD BE COMPELLED TO CONCLUDE THAT MS. SALA CANNOT REASONABLY RELOCATE WITHIN SAN MARTINO. The BIA erroneously affirmed the IJ s finding that relocation within San Martino was reasonable. See R. at 10. Once an applicant establishes refugee status based on past persecution, she is eligible for asylum, and the likelihood of future persecution is a relevant factor in determining whether to grant asylum. See Rodriguez-Matamoros v. INS, 86 F.3d 158, 160-61 (9th Cir. 1996). An IJ has discretion to deny asylum if she finds, by the preponderance of the evidence, that [t]he applicant could avoid future persecution by relocating to another part of the 16

applicant s country of nationality... and under all circumstances, it would be reasonable to expect the applicant to do so. 8 C.F.R. 1208.13(b)(1)(i)(B) (2012); see also Afriyie, 613 F.3d at 934. When an applicant has demonstrated past persecution, the government bears the burden of showing that relocation within an applicant s home country is reasonable. See Afriyie, 613 F.3d at 934 (stating that when the BIA s relocation analysis presume[s] that [the applicant] ha[s] established past persecution... the government and not the asylum applicant, has the burden of showing that relocation is both safe and reasonable under the circumstances. ); Cardenas v. INS, 294 F.3d 1062, 1066 (9th Cir. 2002). Cf. Oryakhil v. Mukasey, 528 F.3d 993, 998 (7th Cir. 2008) (holding that since the petitioner claimed a well-founded fear of future persecution, he bore the burden of proving that relocation was not possible). This relocation analysis is two-part. See Afriyie, 613 F.3d at 934. First, the government must show that the applicant can safely relocate within her home country. Id. Second, the government must show that it would be reasonable to require the applicant to do so. Id. If the government fails to show both safety and reasonableness by a preponderance of the evidence, the applicant must be granted asylum. See id. To determine the safety prong, courts must examine the current conditions of an applicant s home country to see whether it would be safe for the applicant to move to another area of the country. See Arboleda v. U.S. Att y. Gen., 434 F.3d 1220, 1225-26 (11th Cir. 2006) (recognizing that the presence of guerilla and terrorism groups in a country is constantly changing). This analysis must be contemporaneous because courts recognize that the strength and control a group of persecutors may have over a country frequently fluctuates. Id. at 1226. It is therefore important that the party bearing the burden of proof present evidence that accurately 17

depicts the conditions of the country at the time the applicant applies for asylum. Id. Old country conditions reports should not be relied upon because they are unlikely to be correct. Id. This is especially the case if other evidence, including an applicant s credible testimony, contradicts the reports. Id at 1225. In Arboleda, the Eleventh Circuit found that country condition reports that were over two years old did not accurately depict the hold a militant group had over Colombia. Id. In reaching its conclusion, the court noted that the BIA s reliance on this information was particularly misplaced because the petitioners had introduced information including documents from reputable news agencies that attests to the widespread nature of [the militant group s] atrocities committed throughout the entire country, which directly contradicted the government s reports. Arboleda, 434 F.3d at 1225. Accordingly, the Arboleda court held that the petitioner could not safely relocate within the country because his persecutors were spread throughout Colombia. Id. However, regardless of how current objective country reports are, courts cannot rely solely on them to make a safety determination. See Chand v. INS, 222 F.3d 1066, 1079 (9th Cir. 2000) (holding that the conditions of a country alone are not sufficient to determine how safe an individual applicant would be in the country). Rather, the courts must conduct an individualized analysis to determine whether a particular applicant, given her unique circumstances, could safely relocate. See Cardenas, 294 F.3d at 1067. The focus should therefore be on the facts pertaining to the particular applicant rather than on the applicant s protected class as a whole. See id. In Cardenas, the Shining Path, a militant group, specifically targeted and persecuted the petitioner in Peru. Id. Although Peru s current country conditions showed that some Shining Path targets could safely relocate within the country, nothing in the... report indicated that Cardenas [specifically] would be safe if he relocated internally. The court considered the nature 18

of the specific threats Cardenas received and determined that the record compelled a finding that Cardenas could not relocate safely. Id. Finally, courts have failed to hold that because an individual previously lived safely in one area of the country, she would continue to be safe were she forced to return to that location. See Kaiser v. Ashcroft, 390 F.3d 653, 659-60 (9th Cir. 2004). If a petitioner was only safe in a particular location because of the timing and sequence of events, she may not continue to be safe if she returns. Id. at 660. In Kaiser, prior to seeking asylum in the United States, the petitioners had lived without persecution in two separate areas of Pakistan. Id. However, the court specifically noted that this did not mean that the persecutors could not harm the petitioners in those locations; it only meant that the persecutors chose not to harm the petitioners. Id. (emphasis added). The reason the petitioners were not harmed previously was simply the fact that the petitioners were not on their persecutors radar at the time. Id. As a result, the court concluded that substantial evidence supported a finding that it would not be safe for the petitioners to relocate to the towns they had previously lived in. Id. Here, the record compels a finding that Ms. Sala could not safely relocate anywhere within San Martino. Assuming arguendo that this Court finds that Ms. Sala has established past persecution which it should the government bears the burden of showing that internal relocation is safe and reasonable. The government asserts that Ms. Sala could relocate to Paraisa, the capital and largest city within San Martino. R. at 5, 18. However, substantial evidence supports a finding that the government failed to meet its burden of showing that Ms. Sala could safely relocate to Paraisa for several reasons. R. at 18. First, the evidence the government presented regarding the country conditions of San Martino is outdated and does not accurately reflect the current state of the nation. R. at 23. In 19

determining that Ms. Sala could safely relocate to Paraisa, the lower court relied primarily on evidence the government submitted from 2013, including the U.S. State Department s 2013 report on San Martino. R. at 6, 18, 23. Although the 2013 Report stated that ACCE does not have a presence in Paraisa, it is likely that this information is currently inaccurate. R. at 18, 21. The government s evidence was published one year before Ms. Sala first faced persecution, and four years before the present day. R. at 21. Like the militant group in Arboleda, it is likely that ACCE s presence has changed over the four-year period because the cellular nature of ACCE causes the group to grow and shrink in both size and influence in a relatively short period of time. Id. As a result, like in Arboleda, this Court should not rely on this information to determine whether it would be safe for Ms. Sala to relocate to Paraisa. In fact, the evidence Ms. Sala submitted compels a finding that relocation anywhere in Paraisa would not be safe. Like in Arboleda, in which the petitioner who did not bear the burden of proof submitted evidence from reputable media sources suggesting a nationwide militant presence, here Ms. Sala submitted evidence showing that U.S. media outlets believe that an ACCE resurgence had occurred. R. at 6. In its prime, ACCE operated throughout San Martino, in both the major cities and rural countryside. Id. Since the evidence shows an ACCE revival, it is likely that the group now currently operates throughout the country, even in Paraisa. R. at 21. Second, when considering whether Ms. Sala could safely relocate to Paraisa, the lower court failed to conduct an individualized analysis. Rather than considering whether Ms. Sala, in light of her unique personal circumstances could relocate, the court s cursory analysis seemed to focus on whether any transgender individual would be safe in Paraisa. R. at 18. Again, the government bears the burden of showing that Ms. Sala herself could relocate, and they have failed to do so. While other transgender individuals may be able to safely relocate, Ms. Sala 20

would not be able to do so. R. at 23. This is because Ms. Sala s interview in the nationwide exposé revealed her status as a transgender woman to all of San Martino, directly placing a target for ACCE persecution on her back. R. at 8. If ACCE is present nationwide, which the evidence suggests, it would not be safe for Ms. Sala in particular to live in Paraisa. R. at 23. Like the petitioner in Cardenas, Ms. Sala s harm is unique and it would be unsafe for her to live in Paraisa. Finally, the government may argue that since Ms. Sala previously lived in Paraisa while ACCE was in its prime, she could safely relocate to the city even if ACCE was present. This argument is completely misplaced and does not take into account the timing and sequencing of events. As in Kaiser, in which the court held that the mere fact that individuals lived in various parts of Pakistan before certain events that led to persecution occurred, here, Ms. Sala lived in Paraisa before she was featured in the exposé. R. at 7-8. In Kaiser, this did not show that the petitioners attackers could not reach them while they lived in other areas of Pakistan. In the instant case, the fact that Ms. Sala lived in Paraisa before the exposé was filmed does not show that Ms. Sala would now be safe. R. at 8. At that time, Ms. Sala was able to pass as a cis-gender woman when she chose to, and therefore escape ACCE detection. R. at 7. Now, it is likely that ACCE is aware of Ms. Sala s transgender status, and she would not be able to safely live in Paraisa. R. at 8. At bottom, the record compels a finding that Ms. Sala would not be able to relocate to Paraisa. While Petitioner concedes that it would be reasonable for Ms. Sala to relocate, given the fact that she has wealthy cousins in the city who would support her, the government has failed to meet its burden of proving the first prong of the analysis: that Ms. Sala would be safe within Paraisa. Because the government cannot show that there is currently no ACCE presence in 21

Paraisa and that Ms. Sala would be safe in the city, this Court must find that Ms. Sala cannot internally relocate. CONCLUSION For the foregoing reasons, the Fourteenth Circuit s decision affirming the BIA s denial of asylum to Ms. Sala should be reversed. Respectfully submitted, TEAM 20 U.C. Davis School of Law Moot Court Honors Board 400 Mrak Hall Drive Davis, CA 95616 Counsel for Petitioner CERTIFICATE OF ADHERENCE TO COMPETITION RULES All team members understand the Rules of the Competition and have adhered to all rules in writing this brief. We have not received any assistance in writing this brief. 22