Victor Hugo Tapia MADRIGAL, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
No. 10-73700
United States Court of Appeals, Ninth Circuit
Argued and Submitted Nov. 5, 2012. Filed May 15, 2013.
716 F.3d 499
III.
For the foregoing reasons, we affirm.
Tony West, Assistant Attorney General, Civil Division, Shelley R. Goad, Assistant Director, and Julia J. Tyler (argued), Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.
Before: WILLIAM A. FLETCHER and RAYMOND C. FISHER, Circuit Judges, and RAYMOND J. DEARIE, District Judge.*
OPINION
FISHER, Circuit Judge:
Victor Hugo Tapia Madrigal, a former member of the Mexican military, petitions for review of a decision of the Board of Immigration Appeals (BIA) denying him asylum, withholding of removal and relief under the Convention Against Torture (CAT). Because the BIA‘s decision employed incorrect legal standards and rests on factual findings not supported by sub-
I. BACKGROUND
Tapia Madrigal is a native and citizen of Mexico. In a hearing before an immigration judge (IJ), Tapia Madrigal testified that he joined the Mexican army in 2005 at age 18.1 After basic training, he was assigned to a military base in the state of Jalisco, where he spent the next two-and-a-half years conducting anti-drug activities such as destroying marijuana and poppy flower crops. In mid-2007, 10 members of the Los Zetas drug cartel were arrested, including at least one high-ranking member. Tapia Madrigal was not involved in the arrest, but he assisted in transferring the arrestees from the small town where they were apprehended to civil authorities in Guadalajara. The transfer was broadcast on national television because of the importance of some of the arrestees. The national broadcast provided a clear view of Tapia Madrigal‘s face.
When Tapia Madrigal left his military base on authorized leave after the transfer of the arrestees, two men wearing masks kidnapped him while he was waiting for the bus not far from the base. The men covered his head, forced him into a truck and beat him with their fists, boots and heavy objects. They threatened to kill him because of his participation in transferring the arrestees, leading Tapia Madrigal to believe the men were members of Los Zetas. After 24 hours of beatings, the men released Tapia Madrigal with a message to convey: tell his commanding officer, Fortino Castillo León, that the 10 arrestees must be released or else all the people responsible for the arrest would be killed. Tapia Madrigal conveyed the message to Commander León, who did not believe the story and did not release the arrestees.
After a day off to recover from his injuries, Tapia Madrigal was sent on a three-month mission to destroy marijuana crops. When he returned to the base, he learned that all the soldiers who had arrested the 10 members of Los Zetas had been beheaded while on leave. Fearing for his safety, Tapia Madrigal decided to leave the army. He went to his family‘s home for a few months, but after learning that Commander León had also been killed, he discreetly moved to a small town. Whenever someone asked Tapia Madrigal‘s family members where he was, his family members would lie about his whereabouts. Some of the people who asked about his current location were strangers, and Tapia Madrigal believes these strangers were affiliates of Los Zetas who were trying to find him.
Four or five months later, unknown individuals shot at Tapia Madrigal from a passing car while he was walking down the street in his new town. No one else was in the vicinity, so Tapia Madrigal felt sure the bullets were intended for him. He dropped to the ground to avoid the bullets and escaped harm. The car sped up and drove away quickly. Tapia Madrigal testified that he had not made any enemies in his new town and that he knew of no one who wished him harm besides members of Los Zetas. After this experience, he decided to leave Mexico.
After he moved to the United States in 2008, an anonymous letter was left at Tapia Madrigal‘s mother‘s house in Mexico. The letter, which was written by pasting together letters of different sizes and fonts
The government initiated removal proceedings against Tapia Madrigal in 2009. Tapia Madrigal conceded removability, but sought asylum, withholding of removal and CAT relief. The IJ determined Tapia Madrigal was ineligible for all forms of requested relief, and the BIA dismissed his appeal. Tapia Madrigal petitions for review.
II. STANDARD OF REVIEW
We review for substantial evidence the factual findings supporting the BIA‘s decision that an applicant has not established eligibility for asylum, see Yan Xia Zhu v. Mukasey, 537 F.3d 1034, 1038 (9th Cir.2008), withholding of removal, see Pagayon v. Holder, 675 F.3d 1182, 1190 (9th Cir.2011), or relief under CAT, see Li Chen Zheng v. Ashcroft, 332 F.3d 1186, 1193 (9th Cir.2003). We review questions of law de novo. See Yan Xia Zhu, 537 F.3d at 1038.
III. ASYLUM
To establish asylum eligibility, an applicant must show that he is unable or unwilling to return to his country of nationality “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”
A. PAST PERSECUTION
“An applicant alleging past persecution has the burden of establishing that (1) his treatment rises to the level of persecution; (2) the persecution was on account of one or more protected grounds; and (3) the persecution was committed by the government, or by forces that the government was unable or unwilling to control.” Id. Tapia Madrigal contends that (1) the kidnapping, beatings, death threats, inquiries regarding his whereabouts, drive-by shooting and threatening note rise to the level of persecution; (2) this persecution was on account of an imputed political opinion and on account of his membership in the particular social group of former Mexican army soldiers who participated in anti-drug activity; and (3) the Mexican government is unable or unwilling to control Los Zetas.
The BIA‘s conclusion that Tapia Madrigal was not persecuted “on account of” an imputed political opinion is supported by substantial evidence. Nothing in the record suggests that members of Los Zetas believed Tapia Madrigal held a political belief contrary to their own. For the reasons expressed below, however, his claim that he was persecuted on account of his membership in a particular social group might be meritorious. We therefore remand this claim for further proceedings.
1. Degree of Harm
Tapia Madrigal bases his past persecution argument partially on the mistreatment he endured while in the military and partially on events that occurred after he left the military. The BIA correctly concluded that mistreatment suffered
Tapia Madrigal points to three incidents that occurred after he left the military to help establish his claim of past persecution: the attempts of unknown individuals to find him after he relocated, the drive-by shooting and the anonymous threatening note (collectively, “post-military incidents“). The BIA‘s conclusion that these incidents, which include an attempt to murder Tapia Madrigal, do not rise to the level of past persecution is contrary to our precedent. See Lopez v. Ashcroft, 366 F.3d 799, 803 (9th Cir.2004) (“[A]ssaults threatening life itself constitute persecution.“). If the post-military incidents—certainly the murder attempt—are attributable to Los Zetas, then the cartel subjected Tapia Madrigal to mistreatment severe enough to provide a basis for asylum eligibility, assuming the other necessary factors are also present.2
The BIA discounted the post-military incidents because, in its view, “no evidence” supports Tapia Madrigal‘s belief that Los Zetas were responsible. The BIA appears to have reached this conclusion by viewing each incident in isolation, instead of examining the totality of the circumstances. This was error because the post-military incidents took place in the context of a larger pattern of conduct. First, Tapia Madrigal was kidnapped, detained, beaten and threatened with death for his role in transporting arrestees who were members of Los Zetas. Second, the soldiers who actually arrested those cartel members were beheaded. Third, Tapia Madrigal‘s commanding officer was killed. Fourth, after Tapia Madrigal tried to quietly relocate, unknown individuals inquired regarding his whereabouts. Fifth, he was shot at on the street from a passing
Viewed in context, Tapia Madrigal‘s belief that the three post-military incidents are attributable to Los Zetas is more than pure speculation. The course of conduct and surrounding circumstances provide circumstantial evidence that Los Zetas were the ones who inquired about his whereabouts, shot at him on the street and sent the threatening note. Although it is Tapia Madrigal‘s burden to establish his eligibility for asylum, he may satisfy this burden with circumstantial evidence. See Singh v. Gonzales, 439 F.3d 1100, 1111 (9th Cir.2006); Bhasin v. Gonzales, 423 F.3d 977, 984 (9th Cir.2005). Because his explanation for the post-military events is plausible and supported by circumstantial evidence, it must be credited in the absence of an explanation that is at least as plausible. See Navas v. INS, 217 F.3d 646, 657 (9th Cir.2000) (“[T]his court has held persecution to be on account of political opinion where there appears to be no other logical reason for the persecution at issue.“); see also Li v. Holder, 559 F.3d 1096, 1112 (9th Cir.2009) (inferring that the asylum applicant‘s mistreatment was on account of his political opinion in the absence of any other logical explanation); Navas, 217 F.3d at 656-57, 660-61 (same); Hernandez-Ortiz v. INS, 777 F.2d 509, 516-17 (9th Cir.1985) (same), superseded by statute on other grounds as stated in Parussimova v. Mukasey, 555 F.3d 734, 739-40 (9th Cir.2009).
We therefore remand for the BIA to determine whether other plausible explanations for the post-military incidents exist and, if so, whether Tapia Madrigal has met his burden to establish that Los Zetas are likely responsible. If the BIA finds that Los Zetas are likely responsible for the murder attempt, an extremely serious incident, that would be sufficient to show persecution. See Lopez, 366 F.3d at 803. Unlike the shooting, the other two post-military incidents are not individually severe enough to constitute past persecution, but viewed as part of a course of conduct, could justify or reinforce a finding of persecution if traceable to Los Zetas.
2. Causal Nexus
The BIA concluded that the lack of a nexus between the persecution Tapia Madrigal suffered and a protected ground precludes a grant of asylum. We agree that Tapia Madrigal has not established a nexus between his persecution and an imputed political opinion. However, if Tapia Madrigal can establish that Los Zetas are responsible for his post-military persecution as discussed above, then the record compels the conclusion that such persecution was on the basis of his membership in the particular social group of “former Mexican army soldiers who participated in anti-drug activity.”
The BIA acknowledged that Tapia Madrigal‘s social group has the requisite particularity and social visibility to be cognizable under the Immigration and Nationality Act. But the BIA concluded, without discussion, that he had not established a nexus between the “vague” post-military incidents and his membership in this social group. To the extent the BIA‘s conclusion rested on its view that Tapia Madrigal had not established Los Zetas as the source of these incidents, we have explained above why its reasoning is flawed. If the BIA meant that even if Los Zetas were involved there would be no nexus, that is not supported by the record. Assuming it was Los Zetas who continued to go after Tapia Madrigal after he left the military, the record shows that one central reason was his status as a former Mexican army soldier who had participated in anti-drug activity.
The government contends that because Los Zetas’ mistreatment of Tapia Madrigal after he left the military was “retribution” for actions he took while in the military, there is no nexus to his social group membership. Although mistreatment motivated purely by personal retribution will not give rise to a valid asylum claim, see Ayala v. Holder, 640 F.3d 1095, 1098 (9th Cir.2011), if a retributory motive exists alongside a protected motive, an applicant need show only that a protected ground is “one central reason” for his persecution.
3. Willingness and Ability to Control Los Zetas
The BIA concluded that the Mexican government is willing and able to control Los Zetas, precluding Tapia Madrigal from obtaining asylum on any basis. This conclusion was the result of legal error: the BIA appears to have focused only on the Mexican government‘s willingness to control Los Zetas, not its ability to do so. The BIA cited various statistics on the efforts of the national Mexican government to combat drug violence, but it did not examine the efficacy of those efforts.
Significant evidence in the record calls into doubt the Mexican government‘s ability to control Los Zetas. The available country conditions evidence demonstrates that violent crime traceable to drug cartels
Because the BIA appears to have considered only the Mexican government‘s willingness to control Los Zetas and not its ability to do so insofar as it might affect Tapia Madrigal‘s asylum application, we remand for the BIA to consider in the first instance whether the Mexican government is able to control Los Zetas. See INS v. Orlando Ventura, 537 U.S. 12, 16-17 (2002) (requiring remand when the BIA has not yet considered an issue); Lopez v. Ashcroft, 366 F.3d 799, 805-07 (9th Cir.2004) (remanding the case to the BIA where the BIA‘s decision was based on erroneous legal standards); Pannu v. Holder, 639 F.3d 1225, 1229 (9th Cir.2011) (same).
*
We therefore grant the petition with respect to Tapia Madrigal‘s past persecution claim and remand to the BIA. On remand, the BIA must determine whether the postmilitary incidents are attributable to Los Zetas and whether the Mexican government is able to control Los Zetas as relevant to those in Tapia Madrigal‘s particular social group. If the BIA determines both that Los Zetas are likely responsible for the drive-by shooting—a logical conclusion in this context if no other plausible explanation is proffered—and that Mexico was unable to control Los Zetas, then Tapia Madrigal is eligible for asylum, because a murder attempt rises to the level of persecution and his membership in the relevant social group is one central reason for the persecution.
B. FUTURE PERSECUTION
The BIA disposed of Tapia Madrigal‘s claim of a well-founded fear of future persecution by concluding that the Mexican government is willing and able to control Los Zetas. As discussed above, the BIA did not sufficiently consider Mexico‘s ability to control Los Zetas, so we grant the petition and remand for further proceedings on Tapia Madrigal‘s claim of future persecution.
Even if the BIA determines that Tapia Madrigal has not suffered past persecution because the drive-by shooting is not attributable to Los Zetas, it must still consider whether he is likely to suffer future mistreatment at the hands of Los Zetas severe enough to give rise to an asylum claim. The BIA should consider the kid-
IV. WITHHOLDING OF REMOVAL
An applicant is entitled to withholding of removal if his “life or freedom would be threatened in that country because of the alien‘s race, religion, nationality, membership in a particular social group, or political opinion.”
V. CONVENTION AGAINST TORTURE
An applicant is eligible for CAT relief if he establishes that “it is more likely than not that he or she would be tortured if removed to the proposed country of removal.”
A. LIKELIHOOD OF TORTURE
Under CAT‘s implementing regulations, the BIA must consider all evidence of country conditions to determine the likelihood that an applicant would be tortured. See
It appears the BIA did not consider all the country condition evidence Tapia Madrigal properly placed before it. The BIA faulted Tapia Madrigal for appending to his appellate brief “new” country conditions evidence that he had not presented to the IJ, stating that it would not consider this “new” material. In fact, none of the country condition evidence was new; all of it had been presented to the IJ. Given the high likelihood that the BIA did not consider all the country condition evidence properly before it, remand is appropriate.
On remand, the BIA must determine whether it is more likely than not that Tapia Madrigal would be tortured if removed to Mexico. The BIA must consider all country condition evidence, the kidnapping that occurred while Tapia Madrigal was in the military, the fates of his fellow soldiers and any post-military incidents it determines are attributable to Los Zetas. While relatively minor forms of abuse do not constitute torture, if the BIA determines that Tapia Madrigal is more likely than not to be murdered if returned to Mexico, that could constitute torture. See Cole, 659 F.3d at 771 (“‘Acts constituting torture’ under CAT ‘are varied, and include beatings and killings.‘” (quoting Bromfield v. Mukasey, 543 F.3d 1071, 1079 (9th Cir.2008))); see also Comollari v. Ashcroft, 378 F.3d 694, 697 (7th Cir.2004) (Posner, J.).
B. ACQUIESCENCE OF A PUBLIC OFFICIAL
Without analysis, the BIA concluded that any torture Tapia Madrigal is likely to suffer would not be with the consent or acquiescence of a public official. The BIA failed to “state with sufficient particularity and clarity the reasons for” this decision and so does not “provide an adequate basis for this court to conduct its review.” Castillo v. INS, 951 F.2d 1117, 1121 (9th Cir. 1991). The inquiry about whether Mexican officials would acquiesce in torture is related to the inquiry in the asylum context of whether the Mexican government is not just willing but also able to control Los Zetas, at least insofar as it would affect Tapia Madrigal. Both require examining the efficacy of the government‘s efforts to stop the drug cartels’ violence, and both are affected by the degree of corruption that exists in Mexico‘s government. Remand is therefore also appropriate for the BIA to consider whether a Mexican public official is likely to acquiesce in any torture Tapia Madrigal might suffer.
“Acquiescence of a public official requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his or her legal responsibility to intervene to prevent such activity.”
Importantly, an applicant for CAT relief need not show that the entire foreign government would consent to or acquiesce in his torture. He need show only that “a public official” would so acquiesce.
does not require that the public official [who acquiesces in torture] be executing official state policy or that the public official be the nation‘s president or some other official at the upper echelons of power.... [I]t is not contrary to the purpose of the CAT ... to hold Mexico responsible for the acts of its officials, including low-level ones, even when those officials act in contravention of the nation‘s will....
Ramirez-Peyro v. Holder, 574 F.3d 893, 901 (8th Cir.2009). We agree. If public officials at the state and local level in Mexico would acquiesce in any torture Tapia Madrigal is likely to suffer, this satisfies CAT‘s requirement that a public official acquiesce in the torture, even if the federal government in Mexico would not similarly acquiesce. We therefore remand for the BIA to consider whether any torture Tapia Madrigal is likely to endure if returned to Mexico would be with the consent or acquiescence of a public official.
*
We grant Tapia Madrigal‘s petition with respect to his claim for social group based asylum—both past persecution and fear of future persecution—withholding of removal and CAT relief and remand to the BIA for further consideration consistent with this opinion. The panel retains jurisdiction for any subsequent appeals.
PETITION GRANTED.