MARIELA JOVANNI PLANCARTE SAUCEDA; JOSMAR JOSE PLANCARTE SAUCEDA, Pеtitioners, v. MERRICK B. GARLAND, Attorney General, Respondent.
No. 19-73312
United States Court of Appeals for the Ninth Circuit
August 20, 2021
Opinion by Judge W. Fletcher
Agency Nos. A202-097-301, A202-097-302. Argued and Submitted June 10, 2021, Seattle, Washington.
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
OPINION
On Petition for Review of an Order of the Board of Immigration Appeals
Before: William A. Fletcher, Paul J. Watford, and Daniel P. Collins, Circuit Judges.
Immigration
Granting Mariela Plancarte Sauceda’s petition for review of a decision of the Board of Immigration Appeals affirming the denial of her application for asylum, withholding of removal, and relief under the Convention Against Torture, and remanding, the panel held that the Board’s rejection of Plancarte’s proposed particular social group of “female nurses” on the ground that “nursing” is not an immutable characteristic was unreasonable, and that substantial evidence did not support the Board’s finding of no governmental involvement or acquiescence in a drug cartel’s actions forcing her to provide them medical services.
The panel first concluded that venue under
Turning to Plancarte’s CAT claim, the panel concluded that the Board’s decision ignored uncontradicted record evidence showing both acquiescence and direct involvement by government officials. The panel held that substantial evidence therefore compelled the conclusion thаt there was official involvement and acquiescence in the cartel forcing Plancarte to provide medical treatment to cartel members. The panel granted the petition with respect to CAT, and remanded for a determination whether the likelihood of
COUNSEL
Vallerye Anderson (argued), Garcia & Anderson, Sacramento, California, for Petitioners.
Timothy Bo Stanton (argued), Trial Attorney; Anthony P. Nicastro, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
OPINION
W. FLETCHER, Circuit Judge:
Mariela Plancarte Sauceda and her minor son petition for review of a Board of Immigration (“BIA”) order affirming the denial of her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Plancarte, a licensed nurse, claims she was forced to provide medical services to drug cartel members, both at and outside of the hospital where she worked. Plancarte ultimately fled to the United States.
The BIA agreed with Plancarte that the Immigration Judge (“IJ”) erred by not considering her proposed particular social group of “femаle nurses,” but it deemed the error harmless after determining that her occupation did not qualify because in its view, being a nurse is not an immutable characteristic. The BIA did not reach the question whether
We first address venue and hold that the Ninth Circuit is the proper venue for this petition for review because Bоise, Idaho, is the place “in which the immigration judge completed the proceedings.” See
We grant the petition and remand to the BIA.
I. Background
A. Plancarte’s Evidence
The IJ found Plancarte’s removal hearing testimony credible, and thе BIA left this finding undisturbed. “We therefore accept the following facts from her testimony as true.” Davila v. Barr, 968 F.3d 1136, 1139 (9th Cir. 2020); Garland v. Dai, 141 S. Ct. 1669, 1678 (2021) (holding that reviewing courts may only treat an asylumseeker’s testimony as credible if the agency first finds the applicant credible). We accept as true both her oral and written testimony.
Plancarte is a licensed nurse from Arteaga, Michoacán, Mexico. She obtained the position after the Mayor of
Early in her employment at the hospital, Dr. Tello came to Plancarte’s home. He was accompanied by cartel members dressed in bulletproof vests and “belts with straps and knives.” Dr. Tello told Plancarte they were going to “heal some people.” Plancarte told the men she was off duty. One cartel member, known as “El Rojo,” said, “[W]e are not asking if you want to go. You are going.”
The men took Plancarte to an aviation field, blindfolded her, and tied her hands with rope. They changed vehicles at the field and took her to a cabin. Once there, the men took off Plancarte’s blindfold and untied her hands. There were three people with bullet wounds in the cabin. Plancarte was told to treat them.
El Rojo then took Plancarte to another cabin. Inside, there were three injured people who appeared to have been kidnapped. She saw three men “gang raрing a young woman.” They also raped her with a “PVC pipe and tree branches.” “They made me watch and told me this would happen to me if I disobeyed them. I saw that the woman was unconscious, bleeding out, and dying, and I could not do anything to save her so she died.” El Rojo threatened Plancarte’s family with violence and told Plancarte that the cartel knew where she lived, knew where her family lived, and knew everything about her.
On a later occasion, El Rojo and two other men came to Plancarte’s home “in a hurry” and said, “[L]et’s go.” Plancarte had her infant son in her arms. She told the men she needed to set down her son. One of the men “snatched” Plancarte’s son from her arms and gave him to Plancаrte’s mother. Another man pointed his gun at her mother and her son, and said that he was not joking.
Plancarte was blindfolded, tied up, and taken to a house. Inside the house, Plancarte saw that two cartel members, El Rojo’s brother and another man, were injured. Dr. Tello and three or four other people were also inside the house. At the insistence of the cartel members, Plancarte treated the wounded men. She was repeatedly threatened with violence if she said anything about what she was being forced to do. “[T]hey said to me that I was gоing to go through the same thing [as] the girl I had seen, of how they killed her, of how they tortured her. . . . They would say that they would have to kill my mom or my son[.]”
On a final occasion, Plancarte initially refused to go to an off-site location. Cartel members grabbed her and beat her until she bled, kidnapped her son, and forced her into a vehicle. Plancarte was taken to a house where there was a man who had been shot twice, in the stomach and the foot. Plancarte told the cartel members that she would do whatever they asked as long as she got hеr son back. After Plancarte
After this last episode, Plancarte fled to the United States.
B. Procedural History
When Plancarte arrived in the United States, she immediately expressed her fears to immigration officials about returning to Mexico. However, she did not file a formal application for asylum until more than a year after her entry into the United States.
In March 2018, the IJ issued a written decision denying Plancarte’s applications for аsylum, withholding of removal, and relief under CAT. The IJ concluded that Plancarte’s asylum application was untimely1 and that she was therefore ineligible for asylum. The IJ denied withholding of removal on the ground that “women who have been forced to work for the cartel who are skilled labor” and “women forced to work for the cartel because of their specialized skills who have subsequently refused to work for the cartel” did not qualify as particular social groups. The IJ failed to discuss Plancarte’s proposed social group of “femаle nurses.” The IJ denied CAT relief on the ground that Plancarte had not established that it was more likely than not that she would be tortured by, or with the acquiescence of, a Mexican public official. The IJ wrote, “There is no evidence that public officials were
On appeal, the BIA held that the IJ erred by not considering Plancarte’s proposed particular social group of “female nurses,” but that the error was harmless. In the view of the BIA:
In light of prior precedent decisions, gender can be an immutable characteristic. . . . However, with respect to “nurses,” or the portion of that group regarding nurses, we discussed a similar claim in Matter of Acosta, 19 I&N Dec. at 211, regarding members of a taxi collective who refused to participate in a guerilla-sponsored work stoppage. We held that neither of these characteristics is immutable because the group members could avoid the threats either by changing jobs or by cooperating in the work stoppages. Matter of Acosta, 19 I&N Dec. at 234.
“[E]ven assuming the respondent’s eligibility to apply for asylum,” the BIA found no nexus to a particular social group. Because Plancarte had not established a particular social group, the BIA affirmed the IJ’s denial of both asylum and withholding relief. The BIA affirmed the IJ’s denial of CAT relief on the ground that “respondent did not show that she is more likely than not to be tortured, by or with the acquiescence . . . of a government official upon return to Mexico.” The BIA wrote, “The Immigration Judge . . . noted that there is no evidence that Mexican public officials were involved in the respondent being pressed into service for a сriminal organization as a nurse.”
Our review is limited to the BIA’s decision except where the IJ’s opinion is expressly adopted. Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th Cir. 2000). We review legal conclusions de novo. Davila, 968 F.3d at 1141. We review for substantial evidence factual findings underlying the BIA’s determination that a petitioner is not eligible for asylum, withholding of removal, or CAT relief. Id. To prevail under the substantial evidence standard, the petitioner “must show that the evidence not only supports, but compels the conclusion that these findings and decisions are erroneous.” Id.
III. Discussion
A. Venue
On March 10, 2017, Plancarte moved to change venue from Salt Lake City, Utah (in the Tenth Circuit) tо Boise, Idaho (in the Ninth Circuit). The IJ granted the motion on April 10, 2017. The Portland, Oregon, Immigration Court initially had administrative control over the Boise location but at some point the Salt Lake City, Utah, Immigration Court assumed administrative control of the case. In April and June 2017, after the IJ granted the motion to change venue to Boise, final hearing notices were sent to Plancarte. Although the notices for the next two hearings were issued by the Utah Immigration Court, the designated hearing location was Boise. The final hearing, like the earlier hearings, was conductеd remotely. At that hearing, the IJ and counsel for the government were in Salt Lake City. Plancarte, her counsel, and the interpreter were in Boise.
In Yang You Lee v. Lynch, 791 F.3d 1261, 1262 (10th Cir. 2015), the IJ conducted proceedings by video conference from an Immigration Court in Dallas, Texas (in the Fifth Circuit). For most of his Immigration Court hearings, Lee was in Oklahoma (in the Tenth Circuit). Id. During the penultimate hearing, the IJ told Lee that he would be transported to Dallas for the final hearing, and that the address of the Dallas Immigration Court would appear at the top of the final hearing notice. Id. The notice for the final hearing included the address of the Dallas Immigration Court, but listed an Oklahoma City address as the location for the hearing. Id. at 1262–63. In fact, however, Lee’s final hearing occurred at a Dallas Immigration Court, where Lee was physically present. Id. at 1263. The IJ issued his final order of removal from the Dallas Immigration Court. Id.
The Tenth Circuit held that the Fifth Circuit was the proper venue because “venue began and remained in Dallas.” Id. at 1265. The court noted that “the IJ held the final hearing in Dallas, Texas; Mr. Lee and the government’s representative physically appeared in Dallas for the final hearing; and the IJ issued his final order from the Dallas Immigration Court.” Id. at 1264.
A 2007 proposed regulation of the Executive Office for Immigration Review provides that “venue shall lie at the place of the hearing as identified on the charging document or initial hearing notice, unless an immigration judge has granted a change of venue to a different location.” Jurisdiction and Venue in Removal Proceedings, 72 Fed. Reg. 14494, 14494 (Mar. 28, 2007). “[T]he designated hearing location remains unaffected even if an immigration judge from a different location is conducting the hearing by video conference, or if the records in the case are filed with, and maintained by, an administrative control court in a different city.” Id. Under Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944), a proposed regulation is “entitled to respect” if it has the “power to persuade.”
The Lee court declined to defer to the proposed regulation because it would have resulted in an anomaly—namely, that venue would have been in the Tenth Circuit because the final hearing notice listed Oklahoma City as the final hearing location even though the record showed that the IJ conducted the proceedings from Dallas, where Lee was present for the
We therefore conclude that venue under
B. Asylum and Withholding of Removal
An applicant for asylum and withholding of removal bears the burden of establishing eligibility.
Both forms of relief depend on a finding that the applicant was harmed, or threatened with harm, on account of a protected ground. One such ground is that the applicant is a member of a particular social group. An applicant who requests asylum or withholding of removal based on membership in a particular social group must establish that the group is: “(1) composed of members who share a common immutable characteristic, (2) defined with
“The term ‘particular social group’ is ambiguous.” Henriquez-Rivas v. Holder, 707 F.3d 1081, 1083 (9th Cir. 2013) (en banc). “The BIA’s construction of ambiguous statutory terms in the [Immigration and Nationality Act] through case-by-case adjudication is entitled to deferеnce under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984).” Id. at 1087. Under Chevron, we must accept reasonable constructions of ambiguous statutory terms, “even if we believe the agency’s reading is not the best statutory interpretation.” Id.; see also Diaz-Reynoso v. Barr, 968 F.3d 1070, 1076 (9th Cir. 2020) (“Because we have already concluded that the phrase ‘particular social group’ is ambiguous, we must adhere to an agency interpretation of that term, so long as it is reasonable.” (citation omitted)).
The BIA has specified the elements of a particular social group in Matter of M-E-V-G-, 26 I. & N. Dec. 227 (BIA 2014), and Matter of W-G-R-, 26 I. & N. Dec. 208 (BIA 2014). Relevant to the petition before us, the BIA has defined “immutable” to mean a characteristic “that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences.” Matter of W-G-R-, 26 I. & N. at 212 (quoting Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985)). The “critical requirement” is that the defining characteristic of the group be something that “either cannot be changed” or “should not be required to [be] change[d] in order to avoid persecution.” Id. at 213.
Further, there are significant—and determinative—differences between Acosta and this case. In Acosta, the petitioner argued that he was a member of a particular social group comprising members of a taxi driver cooperative in El Salvador. 19 I. & N. Dec. at 232. The BIA rejected the claimed group after finding that the identifying characteristics of the group—working as a taxi driver and refusing to participate in guerrilla-sponsored work stoppages—were not immutable because group members could avoid the asserted harm by either changing jobs or cooperating with the work stoppages. Id. at 234.
As a licensed nurse, Plancarte is in a very different position from a taxi driver. Unlike the skills necessary to drive a car, possessed by most adults, professional nursing skills are not shared by the general population. Plancarte’s skills make her uniquely valuable to the cartel in a way that taxi drivers are not. Even if she changed her profession, she would still remain valuable to the cartel because she would retain her medical knowledge and nursing skills. Thus, regardless of whether she would continue to work as a licensed nurse, she would remain a target of the cartel. Plancarte is therefore unlike the taxi drivers in Acosta. She lacks “the power to change” the immutable nursing characteristics—her medical knowledge and nursing skills—that make her important to the cartel.
We hold that the BIA’s conclusion that the proposed particular social grouр of “female nurses” lacks an immutable characteristic was unreasonable. We therefore grant the petition with respect to Plancarte’s asylum and withholding of removal claims, and remand for consideration of the other required characteristics of her proposed particular social group of “female nurses.” Because the BIA did not reach other questions relevant to Plancarte’s asylum and withholding claims, we also do not reach them.
To establish entitlement to protection under CAT, an applicant must show “it is more likely than not that he or she would be tortured if removed to the proposed country of removal.”
The IJ concluded that Plancarte was ineligible for CAT relief because she failed to show that it was more likely than not she would be tortured in Mexico by, or with the consent or acquiescence of, a public official. The BIA affirmed the IJ, concluding that Plancarte had not shown government involvement or acquiescence.
“Where the Board does not consider all the evidence before it, either by ‘misstating the record [or] failing to mention highly probative or potentially dispositive evidence,’ its decision cannot stand.” Castillo v. Barr, 980 F.3d 1278, 1283 (9th Cir. 2020) (alteration in original) (quoting Cole v. Holder, 659 F.3d 762, 772 (9th Cir. 2011)); see also
Relying on the findings of the IJ, the BIA concluded that Plancarte had not shown a likelihood of torture with the acquiescence or involvement of government officials. The BIA’s conclusion ignorеs uncontradicted record evidence showing both acquiescence and direct involvement.
The relevant evidence includes Plancarte’s written application and oral testimony, exhibits, and 2016 country conditions reports. Plancarte wrote in her asylum application and testified that the police were involved in the medical care of cartel members, and that law enforcement corruption is a serious and widespread problem in Mexico. She also submitted country condition evidence corroborating her testimony. Critically, the agency concluded that there was “no evidence” that “Mexican officials were involved” in Plancarte’s “being pressed into service by a criminal organization as a nurse.” That conclusion is directly contradicted by evidence in the record. Plancarte’s written application states that the Mayor recommended she be hired by the hospital because he wanted her to provide medical treatment to cartel members.
We hold that substantial evidence compels the conclusion thаt there was official involvement and acquiescence in the cartel forcing Plancarte to provide medical treatment to cartel members. We therefore grant Plancarte’s petition with respect to CAT, and remand for a determination whether the
D. Due Process
Plancarte last argues that the BIA denied her due process when it failed to remand her case to the IJ for failure to admit key evidence. We lack jurisdiction to consider this argument beсause Plancarte failed to exhaust it. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).
Conclusion
We grant Plancarte’s petition for review. With respect to asylum and withholding of removal, we remand to allow reconsideration of Plancarte’s proposed particular social group, and to allow the agency to reach other issues it has not yet addressed. With respect to CAT, we remand for a determination whether the likelihood of torture is sufficient to warrant relief.
Petition GRANTED and REMANDED.