Javier Gutierrez Zavala v. Attorney General United States
17-1612
| 3rd Cir. | Nov 30, 2017Background
- Moreno, a Mexican national, was removed from the U.S. in 2005 for alien smuggling, reentered multiple times, and was returned to removal proceedings in 2015 after reinstatement of a prior deportation order.
- In 2008 he declined recruitment by the La Familia Michoacana cartel; three cousins later faced cartel coercion—one joined, one disappeared, and one (Jesus) was allegedly handed over by police and escaped.
- Moreno was shot in Mexico after an earlier return and later claimed fear of return because of cartel targeting and police corruption; he did not report the shooting due to fear of collusion.
- Moreno contested removal seeking withholding of removal and CAT protection, alleging persecution as a deportee/young male and that Mexican officials would acquiesce to torture by cartels.
- The IJ found Moreno credible but denied withholding (no protected-ground nexus) and denied CAT relief (no likely government acquiescence); the BIA affirmed, deferring to the IJ.
- Moreno petitioned for review; the Third Circuit denied relief, treating the case under the limited review available for aggravated-felony removals and, alternatively, under substantial-evidence review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether deportees/"deported young males" constitute a particular social group | Moreno: deportee status/being a deported young male is a cognizable particular social group | Gov: status is not a protected group; targeting was not motivated by deportee status | Court: IJ reasonably found deportee status was not a central reason for targeting; no legal error in that finding |
| Whether Moreno showed nexus that deportee status was central reason for persecution | Moreno: evidence that gangs recruit deportees and his relatives were targeted supports nexus | Gov: no direct evidence gang targeted him because he was a deportee; pool of targets broader (young males) | Court: substantial-evidence supports IJ’s finding that the gang never articulated targeting him as a deportee and record does not compel a contrary conclusion |
| Whether Mexican officials are likely to acquiesce to torture such that CAT relief applies | Moreno: country reports and cousin’s experience show police corruption and past handing over to cartels, so acquiescence likely | Gov: Mexican policy opposes cartels and evidence does not show likely acquiescence to torture of Moreno | Court: IJ considered corruption evidence, implicitly found no likelihood officials would acquiesce with respect to Moreno; this finding stands under presumption of regularity and substantial-evidence review |
| Whether the IJ/BIA misapplied law or failed to apply Myrie two-part acquiescence framework | Moreno: IJ did not expressly apply Myrie’s clarified two-step analysis for acquiescence | Gov: any omission was harmless; IJ considered relevant evidence and made factual findings | Court: Although IJ did not use Myrie language, presumption that IJ applied correct law applies; no remand required and no reversible legal error identified |
Key Cases Cited
- Voci v. Gonzales, 409 F.3d 607 (3d Cir. 2005) (reviewing both IJ and BIA when BIA defers to IJ)
- Lin-Zheng v. Att’y Gen., 557 F.3d 147 (3d Cir. 2009) (substantial-evidence standard for agency factual findings)
- INS v. Elias-Zacarias, 502 U.S. 478 (U.S. 1992) (burden to show protected-ground motivation)
- Kamara v. Att’y Gen., 420 F.3d 202 (3d Cir. 2005) (jurisdictional limits under 8 U.S.C. § 1252 for aggravated-felony removals)
- Myrie v. Att’y Gen., 855 F.3d 509 (3d Cir. 2017) (two-part analysis for government acquiescence under CAT)
- Gonzalez-Posadas v. Att’y Gen., 781 F.3d 677 (3d Cir. 2015) (requiring membership in a particular social group be a central reason for persecution)