NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANDREA MANRIQUE YARURO,

Petitioner,

v. WILLIAM P. BARR, Attorney General,

Respondent. No. 18

- 72349 Agency No. A213

- 017

- 169

MEMORANDUM *

On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted March 2, 2020 Pasadena, California Before: HURWITZ and FRIEDLAND, Circuit Judges, and KORMAN, * * District Judge. Andrea Manrique Yaruro, a native and citizen of Colombia, petitions for
review of a decision of the Board of Immigration Appeals (“BIA”) , which dismissed her appeal of an orde r of an i mmigration j udge (“IJ”) d enying her applications for asylum, withholding of removal under 8 U.S.C. § 1231(b) (3) , and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. 

# FILED

MAR 24 2020
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

protection under the Convention Against Torture (“CAT”). We grant the petition in part, dismiss the petition in part, and deny th e petition in part.
1. The agency evaluated Manrique Yaruro’s asylum and withholding of removal claims under the wrong legal standard. The IJ held that Manrique Yaruro had established past persecution. T his triggered a rebuttable presumption of a
well

- founded fear of future persecution

. 8 C.F.R. § 208.13(b)(1). When the

g overnment attempts to rebut th is presumption with country conditions evidence indicating that there may no longer be widespread persec ution, the agency “must ask whether the [ g overnment] has shown through record evidence that the individual who suffered past persecution is among the general population that is not suffering from a ‘sustained pattern’ of human rights violations, or whether the applicant is among the unlucky few who are most vulnerable to abuse.” Lal v. INS , 255 F.3d 998 , 1011 (9th Cir. 2001). This “assessment must take account of the specific attributes of the past persecution on record.” Id.
T he BIA and IJ failed to consider how generalized country conditions
evidence related to the most relevant aspects of Manrique Yaruro’s individualized
circumstance s and experiences

. The analysis should have considered whether the

peace accord between FARC and the Colombian government made it unlikely that Manrique Yaruro would suffer future persecution from the specific group of FARC
members who persecuted her in the past

. In particular, the agency’s an alysis3

should have accounted for the evidence that Manrique Yaruro was attacked by one
of the FARC members in 2016 , that she subsequently received further threats that caused her to leave Colombia, and that her family received a threat against her life

mon ths after the peace accord was announced

. We therefore grant Manrique Yaruro’s petition with respect to her asylum and withholding of removal claims, and remand to the agency to apply the correct legal standard in the first instance.
See Lopez v. Ashcrof

t , 366 F.3d 799, 805

- 07 (9th Cir. 2004). 1
2. We lack jurisdiction to consider Manrique Yaruro’s humanitarian asylum
claim because she did not raise this claim in her BIA briefing, see Abebe v. Mukasey , 554 F.3d 1203, 1208 (9th Cir. 2009) (en banc) , and the BIA ’s decision
did not address this claim on the merits. Manrique Yaruro contends that she was not required to exhaust her humanitarian asylum claim, but we have already held
that a petitioner who fails to exhaust such a claim “cannot raise it bef ore this
Court.” See Rodas

-

Mendoza v. INS , 246 F.3d 1237, 1240 (9th Cir. 2001).
3. The BIA did not err by concluding that Manrique Yaruro waived any challenge to the IJ’s denial of CAT protection. Manrique Yaruro’s BIA briefing
did not argue that she w as likely to be tortured with the acquiescence of the
government if removed to Colombia

. Accordingly, the “BIA properly found that

1 We deny Manrique Yaruro’s motion for judici al notice as moot. O n remand, the BIA is free “to reopen the record and to remand to the Immigration Judge as appropriate.” INS v. Ventura , 537 U.S. 12, 18 (2002) ( per curiam )

.4

[she] did not challenge the IJ’s determination that [she] was ineligible for protection under the CAT.” Alanniz v. Barr , 92 4 F.3d 1061, 1068

- 69 , 1069 n.8 (9th Cir. 2019). Each party shall bear its own costs on appeal. PETITION FOR REVIEW GRANTED IN PART, DISMISSED IN PART, AND DENIED IN PART ; REMANDED.