Lucero Xochihua-Jaimes v. William Barr
962 F.3d 1175
| 9th Cir. | 2020Background
- Petitioner Lucero Xochihua-Jaimes, a Mexican national and lesbian, fled to the U.S. as a teenager after repeated sexual abuse and family rejection and has lived in the U.S. for ~20 years.
- She entered an abusive relationship with Clemente Luna (connected to Los Zetas), bore five children, and eventually reported Luna for sexually abusing her then-12-year-old daughter; Luna was later convicted and imprisoned.
- After Luna’s arrest, multiple members of Luna’s family (Zetas affiliates) repeatedly threatened Petitioner and her daughter with death, sabotaged her property, and perpetrated violent incidents; Petitioner credibly testified that Mexican police once watched her be assaulted and did nothing.
- Petitioner was convicted of possession of marijuana for sale; the IJ held that conviction made her ineligible for withholding of removal as a particularly serious crime (that issue not before the Ninth Circuit).
- The IJ and BIA denied CAT relief, finding insufficient evidence of (a) likelihood of future torture in Mexico, (b) government consent or acquiescence, and (c) impossibility of safe internal relocation. The Ninth Circuit granted the petition, holding the record compels deferral of removal under the CAT.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petitioner showed it is more likely than not she would be tortured if returned to Mexico | Past sexual abuse, a 2005 beating with police present, death threats from Zetas relatives after Luna’s arrest, and country-condition evidence make future torture likely | Evidence insufficiently specific; country efforts against cartels and corruption show petitioner not likely to be targeted | Court: Record compels conclusion petitioner more likely than not to be tortured if returned (CAT met) |
| Whether public-official acquiescence/consent to torture is established | Police observed past assault and did nothing; testimony of bribery and extensive country evidence of local/state corruption and police collusion with Los Zetas show awareness/willful blindness | Government-level anti-corruption efforts and policies show no official acquiescence | Court: Acquiescence established — awareness/willful blindness by low-level officials and local corruption suffice under Ninth Circuit precedent |
| Whether internal relocation within Mexico is reasonable | Los Zetas operate widely; LGBTQ individuals face heightened risk nationwide; petitioner need not attempt every relocation and should not be required to conceal sexual orientation | Petitioner never tried to relocate; no affirmative evidence that relocation would be impossible; Zetas localized to Veracruz/Baja | Court: BIA/IJ misapplied relocation analysis (Maldonado). Record shows no safe relocation; relocation is not a reasonable option |
| Whether past torture supports a presumption of future torture | Prior rapes, parental rejection, 2005 beating/death threat, and subsequent targeted threats support likely future torture on same grounds (gender/sexual orientation/cartel retaliation) | IJ found some past harms did not amount to torture or were insufficient to predict future torture | Court: Past torture plus current country conditions weigh heavily; presumption of future harm applies and helps compel relief |
Key Cases Cited
- Avendano-Hernandez v. Lynch, 800 F.3d 1072 (9th Cir. 2015) (rape and past torture inform CAT future-harm analysis)
- Maldonado v. Lynch, 786 F.3d 1155 (9th Cir. 2015) (applicant need not prove relocation impossible; IJ must consider all relevant evidence)
- Madrigal v. Holder, 716 F.3d 499 (9th Cir. 2013) (evidence of local/state corruption can show government acquiescence to cartel violence)
- Barajas-Romero v. Lynch, 846 F.3d 351 (9th Cir. 2017) (rejected BIA’s “rogue official” exception; low-level officials can constitute public officials for acquiescence)
- Bringas-Rodriguez v. Sessions, 850 F.3d 1051 (9th Cir. 2017) (en banc) (national anti-corruption efforts do not negate local-level acquiescence; consider government inability to control persecutors)
- Nuru v. Gonzales, 404 F.3d 1207 (9th Cir. 2005) (past torture is principal factor supporting likelihood of future torture)
- Haile v. Holder, 658 F.3d 1122 (9th Cir. 2011) (when evidence compels only one conclusion, court may order relief without remand)
- Singh v. Whitaker, 914 F.3d 654 (9th Cir. 2019) (relocation inquiry requires individualized analysis)