987 F.3d 877
9th Cir.2021Background:
- Macedo, a successful clothing-business owner in Mexico City, faced extortion and refused to pay; he relocated business and later closed production due to threats.
- He experienced multiple violent incidents: a 2003 drive-by shooting with a threatening note, a 2005 beating by men he believed were judicial police, and a 2009 kidnapping/rape of his daughter; some crimes were reported, others were not.
- Macedo credibly testified that criminals threatened police connections; he believed government officials were involved or would not protect him.
- An IJ found Macedo credible but denied withholding of removal (PSG/nexus) and CAT relief (no government acquiescence/involvement); the Board affirmed.
- The Ninth Circuit affirmed denial of withholding (PSG not cognizable; no nexus) but granted and remanded the CAT claim for the Board to consider whether the judicial-police attack qualifies as torture and whether Macedo showed it is more likely than not he would be tortured if returned.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Macedo's proposed particular social group ("wealthy business owners who refuse extortion") is cognizable and whether there is nexus for withholding of removal | Macedo: being a business owner is an immutable/voluntary association and his mistreatment was related to group membership | Government/Board: the group lacks immutability, particularity, and social distinction; crimes were ordinary criminality lacking nexus to a protected ground | Court: Affirmed denial — group not socially distinct or particular; wealth/business ownership not an immutable characteristic here; no sufficient nexus |
| Whether Macedo established entitlement to CAT relief through government involvement or acquiescence | Macedo: police inaction, an official discouraged reporting, and he was beaten by men he believed were judicial police — supporting acquiescence/involvement | Government/Board: record did not show government acquiescence or that officials were responsible | Court: Granted limited relief and remanded — under Barajas‑Romero the IJ/Board should consider the judicial‑police assault as official perpetration and decide whether it qualifies as torture and whether torture is more likely than not |
Key Cases Cited
- Henriquez‑Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (BIA interpretation of "particular social group" gets Chevron deference if reasonable)
- Barajas‑Romero v. Lynch, 846 F.3d 351 (9th Cir. 2017) (public‑official status of perpetrators is irrelevant to CAT; no "rogue official" exception)
- Cordoba v. Barr, 962 F.3d 479 (9th Cir. 2020) (persecutors' view may be probative but cannot alone establish social distinction)
- Zetino v. Holder, 622 F.3d 1007 (9th Cir. 2010) (criminal harassment for profit lacks nexus to protected ground)
- Cole v. Holder, 659 F.3d 762 (9th Cir. 2011) (CAT requires torture by or with consent/acquiescence of public official)
- Nuru v. Gonzales, 404 F.3d 1207 (9th Cir. 2005) (definition of torture for CAT purposes)
- Hamoui v. Ashcroft, 389 F.3d 821 (9th Cir. 2004) ("more likely than not" standard means >50% likelihood for CAT)
- Pirir‑Boc v. Holder, 750 F.3d 1077 (9th Cir. 2014) (discussion of immutability standard for particular social groups)