Victor Tapia Madrigal v. Eric Holder, Jr.
2013 U.S. App. LEXIS 12863
| 9th Cir. | 2013Background
- Tapia Madrigal, a Mexican former army member, sought asylum, withholding, and CAT relief after removal proceedings were initiated in 2009.
- He testified that in 2007 he assisted in transferring Los Zetas arrestees; the transfer was televised and his face was clearly shown.
- After an armed kidnapping and brutal beating during an on-leave period, he fled the army and relocated to a smaller town with his family concealing his whereabouts.
- Post-military, he faced continued threats: failed inquires about his location, a drive-by shooting, and an anonymous threatening note allegedly tied to Los Zetas.
- The IJ found his testimony credible; the BIA dismissed relief claims, prompting review by the Ninth Circuit.
- The court remands to assess whether post-military incidents are attributable to Los Zetas and whether Mexico can control the cartel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Past persecution on account of social group | Tapia Madrigal asserts post-military incidents show persecution based on social group membership. | BIA found no nexus to a protected ground for post-military events; mistreatment not proven persecutory. | Remanded to determine nexus and social-group basis; past persecution may exist. |
| Causation nexus to protected ground | Post-military acts tied to being a former soldier who opposed drug trafficking; social group factor central. | Nexus lacking because mistreatment not shown to be motivated by protected grounds. | Remanded to resolve whether Los Zetas’ conduct was motivated by Tapia Madrigal's social group. |
| Future persecution and likelihood | Even absent past persecution, future risk exists if Los Zetas continue targeting him and Mexico cannot control them. | BIA concluded willingness/ability to control Los Zetas negates future risk. | Remanded to assess future risk with updated country conditions and cartel control findings. |
| CAT relief and official acquiescence | If torture is likely and officials would acquiesce, CAT relief may be warranted. | BIA did not adequately analyze acquiescence or complete country-condition evidence. | Remanded to consider likelihood of torture and official acquiescence with full evidence. |
Key Cases Cited
- Lopez v. Ashcroft, 366 F.3d 799 (9th Cir. 2004) (murder attempts constitute persecution; course of conduct matters)
- Ayala v. Holder, 640 F.3d 1095 (9th Cir. 2011) (personal retribution as a component of protected-ground persecution)
- Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (anti-cartel informants and group-based persecution; en banc)
- Navas v. INS, 217 F.3d 646 (9th Cir. 2000) (infer persecution when no other logical explanation; political opinion context)
- Li Chen Zheng v. Ashcroft, 332 F.3d 1186 (9th Cir. 2003) (acquiescence and official responsibility analysis in CAT context)
- Cruz-Navarro v. INS, 232 F.3d 1024 (9th Cir. 2000) (distinction between current and former military in social-group analysis)
- Cole v. Holder, 659 F.3d 762 (9th Cir. 2011) (CAT considerations require full evidentiary consideration; catchall insufficient)
- Bromfield v. Mukasey, 543 F.3d 1071 (7th Cir. 2008) (torture definitions and breadth of CAT protections)