Rgy v. Merrick Garland
20-71729
| 9th Cir. | Sep 7, 2021Background
- RGY, deported three times between 2006–2012, lived in Mexico about 5.5 months total and concedes he was never tortured there.
- He reports a single gang-leader threat in 2006–07, telephone threats related to meth distribution through 2014, and minor physical altercations without serious injury.
- RGY applied for withholding of removal and relief under the Convention Against Torture (CAT); the IJ and BIA denied relief and he petitioned this Court for review.
- The BIA found RGY failed to show (1) a likelihood of future torture in Mexico, or (2) that torture would occur with Mexican government acquiescence, and (3) that his proposed particular social group (long-term U.S. residents with visible gang tattoos deported to Mexico) was cognizable.
- The Ninth Circuit majority denied the petition; Judge Paez concurred in part and dissented in part, arguing the agency failed to perform the required society-specific, fact-based analysis of the proposed social group and would have remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| CAT — likelihood of torture on return | Past threats, tattoos, and altercations show substantial risk of future torture | No past torture; threats remote, episodic, and speculative | Denied — substantial evidence supports BIA that RGY failed to show likelihood of torture |
| CAT — governmental acquiescence | Mexico’s corruption and police ineffectiveness mean officials would acquiesce in torture | General evidence of corruption/ineffectiveness is insufficient; record shows Mexico combats crime | Denied — substantial evidence supports BIA that acquiescence not shown |
| Withholding — cognizability of proposed particular social group | Group defined as long-term U.S. residents with visible gang tattoos deported to Mexico | Group is overbroad, lacks particularity and social distinction; analogous precedent rejects tattooed-gang-member groups | Denied — group non-cognizable for lack of particularity/distinctness |
| Adequacy of agency factfinding re: PSG (dissent) | Agency ignored society-specific evidence and failed to make required findings; remand needed | Agency relied on precedent and its review of record | Dissent: would grant and remand for case-by-case, society-specific analysis; majority affirmed denial |
Key Cases Cited
- Gomez Fernandez v. Barr, 969 F.3d 1077 (9th Cir. 2020) (past torture is ordinarily the principal factor for assessing future CAT risk)
- Nuru v. Gonzales, 404 F.3d 1207 (9th Cir. 2005) (same principle regarding past torture as predictor)
- Medina-Rodriguez v. Barr, 979 F.3d 738 (9th Cir. 2020) (speculative chains of events cannot establish likelihood of torture)
- Barajas-Romero v. Lynch, 846 F.3d 351 (9th Cir. 2017) (police ineffectiveness alone does not establish governmental acquiescence)
- Andrade-Garcia v. Lynch, 828 F.3d 829 (9th Cir. 2016) (general government ineffectiveness insufficient for acquiescence)
- Garcia-Milian v. Holder, 755 F.3d 1026 (9th Cir. 2014) (same principle on acquiescence)
- Del Cid Marroquin v. Lynch, 823 F.3d 933 (9th Cir. 2016) (record may show Mexico actively combats illegal activity)
- Barbosa v. Barr, 926 F.3d 1053 (9th Cir. 2019) (particularity requirement for particular social groups)
- Ramirez-Munoz v. Lynch, 816 F.3d 1226 (9th Cir. 2016) (persecutor’s reliance on specific boundaries supports PSG credibility)
- Arteaga v. Mukasey, 511 F.3d 940 (9th Cir. 2007) (tattooed gang member is overbroad and not a cognizable PSG)
- Pirir-Boc v. Holder, 750 F.3d 1077 (9th Cir. 2014) (agency must make society-specific, case-by-case PSG findings)
- Conde Quevedo v. Barr, 947 F.3d 1238 (9th Cir. 2020) (agency may not reject PSG without considering society-specific evidence)
- Diaz-Torres v. Barr, 963 F.3d 976 (9th Cir. 2020) (PSG inquiry is case-by-case and country-specific)
- Delgado-Ortiz v. Holder, 600 F.3d 1148 (9th Cir. 2010) (particular social group analysis principles)
- Donchev v. Mukasey, 553 F.3d 1206 (9th Cir. 2009) (comparative case analysis is prudent in PSG determinations)
- Alanniz v. Barr, 924 F.3d 1061 (9th Cir. 2019) (neither BIA nor court may undertake initial factfinding necessary to establish a PSG)