NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

REYNA FELVIRA CALMO-AGUILAR, 

Petitioner, 

 v. 

MERRICK B. GARLAND, Attorney 

General, 

Respondent.

No. 20-71398 

Agency No. A209-400-308 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued April 15, 2022

Submission Withdrawn April 19, 2022

Resubmitted February 9, 2023

Pasadena, California

Before: SMITH,** BADE, and LEE, Circuit Judges.

Reyna Felvira Calmo-Aguilar, a lesbian woman and native and citizen of 

Guatemala, petitions for review of the order of the Board of Immigration Appeals 

(BIA) dismissing her appeal from a decision of the Immigration Judge (IJ) denying 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable D. Brooks Smith, United States Circuit Judge for the 

U.S. Court of Appeals for the Third Circuit, sitting by designation.

FILED

FEB 9 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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her application for asylum, withholding of removal, and protection under the 

Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252. 

“We review the denial of asylum, withholding of removal and CAT claims for 

substantial evidence.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 

2019). “Under this standard, we must uphold the agency determination unless the 

evidence compels a contrary conclusion.” Id. We grant the petition and remand

for further proceedings.

1. “To demonstrate entitlement to asylum or withholding of removal on 

the basis of past persecution,” Doe v. Holder, 736 F.3d 871, 877 (9th Cir. 2013), an 

applicant has the burden of establishing “(1) an incident, or incidents, that rise to 

the level of persecution; (2) that is on account of one of the statutorily-protected 

grounds; and (3) is committed by the government or forces the government is 

either unable or unwilling to control,” id. at 877–78 (quoting Afriyie v. Holder, 613 

F.3d 924, 931 (9th Cir. 2010)). Here, the record compels the conclusion that

Guatemalan authorities would be unable or unwilling to control Calmo-Aguilar’s 

persecutors.

Our decision is controlled by Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 

1073–74 (9th Cir. 2017) (en banc), where we held that the petitioner was not 

required to report the abuse he suffered as a child on account of his sexual 

orientation because doing so would have been futile and dangerous. We also held 
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that the evidence compelled the conclusion that the government was unable or 

unwilling to control the petitioner’s persecutors. Id. at 1073–75.

Calmo-Aguilar put forward similar evidence. She testified about a woman

whose experience suggested the police would not protect women, let alone 

homosexual women, from sexual assault.

1

 Calmo-Aguilar also feared that she 

would be raped or killed if returned to her native country; indeed, she experienced 

community-wide harassment, including death threats and sexual assault, as a 

young teen when others learned of her sexual orientation. She did not go to the 

police out of fear that they would not protect her and “would do something to 

[her],” which she based on her knowledge of the other woman’s experience,

Guatemala’s intolerance of homosexuality, and the absence of laws protecting 

homosexuals—the latter two of which were not present in Bringas-Rodriguez. Id.

at 1075 (noting “increasing social acceptance of homosexuals” in Mexico and that 

same-sex marriage had been legalized in some areas). Finally, Calmo-Aguilar 

1 The woman whose experience Calmo-Aguilar testified about was 

heterosexual, whereas the friends in Bringas-Rodriguez were homosexual. 

However, as Calmo-Aguilar notes, if police were unwilling to protect a 

heterosexual woman from mistreatment, they may have been even less inclined to 

protect a homosexual woman, given the general attitude of the community toward 

homosexual individuals. Cf. Bringas-Rodriguez, 850 F.3d at 1070 (stating that it 

would be an erroneous assumption that “where government authorities are able and 

willing to protect heterosexual children, they will be equally able and willing to 

protect children who exhibit a different sexual orientation or are ‘different’ in other 

ways”).
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offered country conditions evidence comparable to that of Bringas-Rodriguez. 

Therefore, in light of Bringas-Rodriguez, the record compels the conclusion that 

Calmo-Aguilar need not have reported her assaults and that Guatemalan authorities 

would be unable or unwilling to control her persecutors.

2. The BIA denied Calmo-Aguilar’s CAT claim on the ground that she 

failed to show that the Guatemalan government would torture her or acquiesce in 

any torture committed by third parties. See Madrigal v. Holder, 716 F.3d 499, 508 

(9th Cir. 2013) (a CAT applicant must show “that a public official would inflict, 

instigate, consent to or acquiesce in” torture). Because this aspect of the CAT 

claim relies on the same evidence that underlies the analysis of whether CalmoAguilar would suffer persecution committed by the government or forces the 

government is either unable or unwilling to control, we also grant the petition as to

this claim. See, e.g., Bringas-Rodriguez, 850 F.3d at 1076 (remanding “for 

consideration of [petitioner’s] withholding of removal and CAT claims” after 

determining petitioner suffered past persecution).

PETITION FOR REVIEW GRANTED; REMANDED.